THE STATE EX REL. HUSTED v. BRUNNER ET AL.
No. 2009-1707
Supreme Court of Ohio
October 6, 2009
123 Ohio St.3d 288, 2009-Ohio-5327
{12} Although the magistrate‘s actions helped to right the ship, the harm had already been done—the magistrate‘s advice came nine months into the administration of what was, by all accounts, a simple estate, closed by the successor attorney in two and a half months, with only four and a half hours of labor. While the matter was in his hands, respondent mishandled and neglected the case and refused to return the client‘s phone calls.
{13} Respondent is therefore suspended from the practice of law in Ohio for six months; however, the suspension is stayed on the conditions that he successfully complete a one-year monitored probation under
{14} Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
PFEIFER, J., dissents and would publicly reprimand the respondent.
Comstock, Springer & Wilson Co., L.P.A., and David C. Comstock Jr.; and Ronald E. Slipski, for relator.
James S. Jones, pro se.
Per Curiam.
{1} This is an expedited election action for a writ of mandamus to compel respondents, the secretary of state and the Montgomery County Board of Elections, to find that relator, Jon A. Husted, is a resident of Montgomery County for election purposes and to maintain Husted‘s name on the poll books as a properly registered Montgomery County elector for all election purposes. Because the secretary of state erred in canceling Husted‘s existing Montgomery County voter registration without following any of the statutorily prescribed methods for doing so and further erred in concluding that there was clear and convincing evidence that Husted is not a Montgomery County resident, we grant the writ and order the Montgomery County Board of Elections to treat Husted as a Montgomery County resident for election purposes.
I. Facts
{2} Relator, Jon A. Husted, served in the Ohio House of Representatives from 2001 to 2008, representing the 37th House District, which is located in Montgomery County. Husted served as Speaker of the House from 2005 through 2008. In November 2008, Husted was elected to the Ohio Senate, where he currently represents the Sixth Senate District, which is located in Montgomery County. Husted is registered to vote in Montgomery County.
{3} In October 2008, a nonprofit corporation and a Montgomery County elector requested that respondent Montgomery County Board of Elections investigate Husted‘s eligibility to vote as a resident of Montgomery County. A few months later, the board conducted a hearing at which Husted presented the only testimony. At the beginning of the hearing, the board‘s counsel described the hearing as an administrative investigatory hearing that was being conducted based upon the board‘s authority pursuant to
{5} On September 14, we granted a writ of mandamus to compel the secretary of state to comply with her duty under
{6} On September 21, the secretary of state broke the tie vote by concluding that it had been established by clear and convincing evidence that Husted “is no longer a resident of Montgomery County and therefore is not eligible to vote there.” The secretary noted in her opinion that the board had proceeded pursuant to its authority under
{7} Husted then filed this expedited election action for a writ of mandamus against the secretary of state and the board of elections.
II. Legal Analysis
A. Mandamus to Challenge Secretary of State‘s Tie-Breaking Decision
{8} “To be entitled to the requested writ, relator[] must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of the secretary of state [and the board of elections] to provide it, and the lack of an adequate remedy in the ordinary course of the law.” State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 13. Because of the proximity of the November 3 election at which Husted wishes to vote as a Montgomery County elector, he has established that he lacks an adequate remedy in the ordinary course of the law. State ex rel. Greene v. Montgomery Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 10.
B. Failure to Follow Proper Procedure for Canceling Registration
{10} Husted claims that the secretary of state and the board of elections clearly disregarded applicable law by failing to follow the proper procedure for canceling his voter registration. We agree that he is entitled to the requested extraordinary relief because the board followed a procedure that is not authorized by the pertinent statutory provisions.
{11} As we have consistently held, “[c]ounty boards of elections are of statutory creation, and the members thereof in the performance of their duties must comply with applicable statutory requirements.” Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 12, quoting State ex rel. Babcock v. Perkins (1956), 165 Ohio St. 185, 187, 59 O.O. 258, 134 N.E.2d 839.
{12} The election statutes address with specificity the cancellation of a voter‘s registration.
{13} It is clear from the record that
{14} The only remaining manner in which Husted‘s registration may be canceled is
The filing of such a request does not prohibit an otherwise qualified elector from reregistering to vote at any time.
{d} “(2) The filing of a notice of the death of the registered elector as provided in section 3503.18 of the Revised Code;
{e} “(3) The conviction of the registered elector of a felony under the laws of this state, any other state, or the United States as provided in section 2961.01 of the Revised Code;
{f} “(4) The adjudication of incompetency of the registered elector for the purpose of voting as provided in section 5122.301 of the Revised Code;
{g} “(5) The change of residence of the registered elector to a location outside the county of registration in accordance with division (B) of this section;
{h} “(6) The failure of the registered elector, after having been mailed a confirmation notice, to do either of the following:
{i} “(a) Respond to such a notice and vote at least once during a period of four consecutive years, which period shall include two general federal elections;
{j} “(b) Update the elector‘s registration and vote at least once during a period of four consecutive years, which period shall include two general federal elections.”
{15} As we detailed previously, however, boards of elections are created by statute and must comply with applicable statutory requirements. Whitman, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 12. Furthermore, the general rule is that unless there is language allowing substantial compliance, election statutes are mandatory and must be strictly complied with. State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St.3d 472, 476, 764 N.E.2d 971.
{16} Because the General Assembly has provided specific provisions by which an elector‘s voting registration may be challenged and has limited the manner by which an elector‘s registration may be canceled,
C. Residency Determination
{17} The parties have submitted the substantive issue of Husted‘s residence to the court for its consideration. The secretary of state asserts in her September 21 tie-breaking decision that cancellation of an elector‘s existing voter registration requires clear and convincing evidence that the registration is incorrect. Solely for purpose of this case, we will defer to the secretary of state‘s usage of this standard. Husted has not challenged the applicability of the standard.
{18} Clear and convincing evidence is “that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the
{19}
{20} “All registrars and judges of elections, in determining the residence of a person offering to register or vote, shall be governed by the following rules:
{21} “(A) That place shall be considered the residence of a person in which the person‘s habitation is fixed and to which, whenever the person is absent, the person has the intention of returning.
{22} “(B) A person shall not be considered to have lost the person‘s residence who leaves the person‘s home and goes into another state or county of this state, for temporary purposes only, with the intention of returning.
{23} “(C) A person shall not be considered to have gained a residence in any county of this state into which the person comes for temporary purposes only, without the intention of making such county the permanent place of abode.
{24} “(D) The place where the family of a married person resides shall be considered to be the person‘s place of residence; except that when the spouses have separated and live apart, the place where such a spouse resides the length of time required to entitle a person to vote shall be considered to be the spouse‘s place of residence.
{25} “* * *”
{26} “(G) If a person removes from this state to engage in the services of the United States government, the person shall not be considered to have lost the person‘s residence in this state during the period of such service, and likewise should the person enter the employment of the state, the place where such person resided at the time of the person‘s removal shall be considered to be the person‘s place of residence.”
{27} Because of the sometimes conflicting nature of these sections, when multiple sections are applicable—as here—it is difficult to find by clear and convincing evidence that a person is not a resident of the county claimed. That is, “[t]he rules which the General Assembly specified were apparently intended to enable an individual in such a situation to select as his residence some place which fairly conformed with one or more of the several rules specified, even though it might not conform with some of the other rules so specified or might not be his domicile.” State ex rel. Klink v. Eyrich (1952), 157 Ohio St. 338, 344, 47 O.O. 198, 105 N.E.2d 399 (Taft, J., concurring). Consequently, when the applicability of multiple sections leads to conflicting results, it cannot be shown by the heightened standard of clear and convincing evidence that the person is not a
{28} Husted relies on
{29} First, the secretary of state erred in concluding that Section 3, Article II of the Ohio Constitution is inapplicable. This section provides that “[s]enators and representatives shall have resided in their respective districts one year next preceding their election, unless they shall have been absent on the public business of the United States, or of this State.” This constitutional provision ensures that a state legislator‘s absence from the district on official duties does not jeopardize his or her right to claim a full year‘s residence in the district. When construed in pari materia with the rules specified in
{30} Second, the secretary of state failed to accord proper weight to Husted‘s intent that his Kettering home remain his permanent residence for purposes of voting.
{31} In effect, the evidence before the secretary of the state and the board of elections established that Montgomery County is the place in which Husted‘s habitation is fixed and to which he has the intention of returning.
{32} Third, the secretary of state erroneously relied exclusively on
{33} By effectively treating the
{34} Our holding is consistent with precedent. For example, in Klink, 157 Ohio St. 338, 47 O.O. 198, 105 N.E.2d 399, we held that a board of elections properly decided that a married person whose family lived in Franklin County was a qualified elector of Hamilton County because of substantial evidence that the person intended to eventually return to Cincinnati. See also State ex rel. Lakes v. Young (1954), 161 Ohio St. 341, 53 O.O. 249, 119 N.E.2d 279 (married man did not lose voting residence in township even though his family moved temporarily to a city).
III. Conclusion
{35} Husted has established his entitlement to the requested extraordinary relief. Therefore, we grant a writ of mandamus to compel the Montgomery County Board of Elections to find that Jon A. Husted is a resident of Montgomery County for election purposes and to maintain his name on the poll books as a properly registered Montgomery County elector for all purposes.
Writ granted.
LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, and CUPP, JJ., concur.
MOYER, C.J., concurs in Part II(C) of the opinion and in judgment.
LANZINGER, J., concurs in Part II(B) of the opinion and in judgment.
PFEIFER, J., concurs in judgment only.
{36} For each Ohio citizen, where he or she deems to be home is a highly personal matter. Home is often different from where one is presently living.
Bricker & Eckler, L.L.P., Maria J. Armstrong, Anne Marie Sferra, and Jennifer A. Flint, for relator.
Richard Cordray, Attorney General, and Richard N. Coglianese, Damian Sikora, Erick D. Gale, Robert Moormann, and Michael J. Schuler, Assistant Attorneys General, for respondent secretary of state.
McTigue & McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis, and J. Corey Colombo, urging denial of the writ for amicus curiae, ProgressOhio.org.