THE STATE EX REL. SCHERACH v. LORAIN COUNTY BOARD OF ELECTIONS ET AL.
No. 2009-1685
Supreme Court of Ohio
Submitted October 5, 2009-Decided October 8, 2009.
123 Ohio St.3d 245, 2009-Ohio-5349
{1 30} The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, and CUPP, JJ., concur.
LANZINGER, J., not participating.
Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., and Theodore A. Bowman, for appellant.
Richard Cordray, Attorney General, and Sandra E. Pinkerton, Assistant Attorney General, for appellee Industrial Commission.
Law Offices of Margelefsky & Mezinko, L.L.C., and Vincent S. Mezinko, for appellee Alro Steel Corporation.
Per Curiam.
{1 1} This is an expedited election action for a writ of prohibition to prevent a board of elections and its members from placing on the November 3, 2009 general election ballot the name of a person as a candidate to fill the unexpired term of a city law director who had resigned. Because the board of elections did not exercise quasi-judicial authority in certifying the name to the election ballot, we deny the writ.
Vacancy and Selection of Candidate
{1 2} Mark R. Provenza was elected law director of the city of Lorain, Ohio, and served in that office beginning in January 2000. Provenza was last elected to serve a term of office as law director from January 1, 2008, to December 31, 2011. On March 31, 2009, however, Provenza resigned.
{1 3} On April 30, 2009, the Central Committee of the Lorain County Democratic Party held a meeting at which it appointed intervening respondent, Patrick D. Riley, pursuant to
{1 4} At the April 30 meeting, the Lorain County Democratic Party Central Committee also appointed Riley as its candidate for the election to fill Provenza‘s unexpired term of office as city law director. The chairperson and the secretary of the committee signed Secretary of State Form No. 289, which is prescribed by the secretary of state for the certification of the selection of a candidate to fill a vacancy in a party nomination pursuant to
{1 5} The director of the board of elections brought the folder containing the forms to the board of elections the next day, and he initially placed the folder on his desk, where another board employee saw them and confirmed that the forms had been properly completed. The director took the file with the completed forms and placed them on the desk of a board employee to continue processing them. The completed Form No. 291 was further processed by the board‘s sending a copy to the secretary of state on May 5 and the board‘s time-stamping it on June 3. The completed Form No. 289, however, was subsequently determined to be missing from the board records. Neither the original nor a copy of the form has been located. The board of elections has no set protocol to time-stamp the forms containing party nominations for vacancies, and the majority of these documents have not been time-stamped in the past.
{1 6} On August 17, 2009, the Central Committee of the Lorain County Republican Party selected relator, Michael J. Scherach, as its candidate for city
August 27, 2009 Board of Elections Meeting
{1 7} The board of elections scheduled a meeting for August 27 to certify candidates for the November 3, 2009 general election. The board of elections issued a press release before the meeting in which it noted that it may exercise its discretion at the meeting “to conduct a hearing, take statements and or accept legal authority regarding the certification of Patrick D. Riley to the ballot as the Democratic candidate for Lorain City Law Director.”
{1 8} At its August 27 meeting, the board heard testimony from several witnesses concerning the matter, and Scherach and Riley or their counsel questioned witnesses. The board‘s counsel noted, however, that the proceeding was not comparable to a trial. Scherach submitted a memorandum in which he claimed that the board of elections should not certify Riley to the ballot as the Democratic Party candidate for Lorain law director, because there was no “conclusive evidence” of the committee‘s certification of Riley as its nominee. Riley submitted a memorandum supporting his certification as a candidate for law director.
{1 9} At the conclusion of the meeting, the board of elections certified Riley to the November 3 general election ballot as a candidate for city law director.
Protest
{1 10} On August 31, Scherach filed a written protest with the board of elections contesting the board‘s certification of Riley as a candidate for law director. Scherach claimed that the purported committee certification of Riley as a candidate and Riley‘s acceptance of the nomination did not comply with
{1 11} At a special board meeting on September 8, the board of elections voted to file the protest but to take no action on it. At the meeting, the board‘s counsel stated his opinion that a protest proceeding was not available and that even if it were, Scherach lacked standing.
Prohibition Case
{1 12} On September 18, Scherach filed this expedited election action for a writ of prohibition to prevent respondents, the Lorain County Board of Elections and its members, from placing Riley‘s name on the November 3 general election ballot as a party candidate for Lorain law director. The board and its members
{1 13} This cause is now before the court for our consideration of the merits.
Legal Analysis
Prohibition: Quasi-Judicial Power
{1 14} To be entitled to the requested writ of prohibition, Scherach must first establish that the board of elections and its members are about to exercise or have exercised judicial or quasi-judicial power. State ex rel. Parrott v. Brunner, 117 Ohio St.3d 175, 2008-Ohio-813, 882 N.E.2d 908, ¶ 6. Not being judges, the board and its members have not exercised judicial power. Id. at ¶ 7.
{1 15} We have defined quasi-judicial authority as “‘the power to hear and determine controversies between the public and individuals that require a hearing resembling a judicial trial.’ (Emphasis added.)” State ex rel. Upper Arlington v. Franklin Cty. Bd. of Elections, 119 Ohio St.3d 478, 2008-Ohio-5093, 895 N.E.2d 177, ¶ 16, quoting State ex rel. Wright v. Ohio Bur. of Motor Vehicles (1999), 87 Ohio St.3d 184, 186, 718 N.E.2d 908; see also State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 242, 736 N.E.2d 893.
{1 16} Scherach claimed in his memorandum supporting his protest that a hearing resembling a judicial trial was required upon his protest by
{1 17} “(A) The secretary of state or a board of elections shall accept any petition described in
section 3501.38 of the Revised Code unless one of the following occurs:{1 18} “***
{1 19} “(2) A written protest against the petition or candidacy, naming specific objections, is filed, a hearing is held, and a determination is made by the election officials with whom the protest is filed that the petition violates any requirement established by law.” (Emphasis added.)
{1 20}
{1 21} If the General Assembly had intended that the certification of a candidate for election to fill a vacancy caused by death or resignation under
{1 22} Therefore, there is no requirement under
{1 23} Moreover, the mere fact that the board of elections actually held a hearing resembling a judicial trial before certifying Riley‘s name as a candidate for city law director does not warrant a different conclusion. The dispositive fact is that no statute or other law required the board to do so. See State ex rel. Janosek v. Cuyahoga Support Enforcement Agency, 123 Ohio St.3d 126, 2009-Ohio-4692, 914 N.E.2d 404, ¶ 1 (“Because no statute or other pertinent law required the agency to conduct a hearing resembling a judicial trial when it issued its notice to withhold income for spousal support, the agency did not exercise the judicial or quasi-judicial authority required for appellants to be entitled to the requested extraordinary relief in prohibition” [emphasis sic]).
{1 24} Therefore, the board of elections did not exercise judicial or quasi-judicial authority in certifying Riley‘s name as a candidate for Lorain Law Director on the November 3 general election ballot.
Conclusion
{1 25} Therefore, because Scherach has not established his entitlement to the requested extraordinary relief in prohibition, we deny the writ. Because this ground disposes of Scherach‘s prohibition claim, we need not address the remaining requirements or claims. See Wright, 120 Ohio St.3d 92, 2008-Ohio-
Writ denied.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
Michael J. Scherach, pro se.
Dennis P. Will, Lorain County Prosecuting Attorney, and Gerald A. Innes, Assistant Prosecuting Attorney, for respondents.
Jeffries, Kube, Forrest & Monteleone Co., L.P.A., and David A. Forrest, for intervening respondent.