State ex rel. Summit County Republican Party Executive Committee v. BrunnerState ex rel. Summit County Republican Party Executive Committee v. Brunner
Lead Opinion
I
{¶ 1} This is an original action for various extraordinary writs to (1) compel respondent, Secretary of State Jennifer Brunner (“Secretary”), to appoint Brian K. Daley to the Summit County Board of Elections as recommended by relator, Summit County Republican Party Executive Committee (“Committee”), (2) reject the Secretary’s appointment of Donald Varían to serve on the board of elections, and (3) vacate all three-to-one board decisions in which Varían voted with the majority of the board.
{¶ 2} The statutory framework establishes a bipartisan composition of the state’s boards of elections, which provides county executive committees of the two major political parties with the right to recommend appointees who shall be appointed by the secretary of state. The Secretary may reject the recommended appointee if she has reason to believe that the elector would not be a competent member of the board.
First Recommendation
{¶ 3} Alex R. Arshinkoff is the chairman of the Committee and was a member of the Summit County Board of Elections from 1978 through February 29, 2008.
{¶ 4} At a meeting held on January 29, 2008, the Committee recommended that Secretary of State Brunner reappoint Arshinkoff to the board of elections for the four-year term beginning March 1, 2008. The Committee submitted to the Secretary on January 30 its recommendation and resolution authorizing the recommendation.
{¶ 5} Before January 30, Wayne Jones, a member of the board of elections and the finance chairman of the Summit County Democratic Party, advised the
{¶ 6} James J. Hardy is a regional liaison for the Secretary, and in that capacity, he serves as the Secretary’s representative to several boards of elections, including the Summit County Board of Elections. Jones gave Hardy a packet of information concerning Arshinkoff that Hardy mailed to the Secretary’s office. The packet included an anonymous, unsigned letter stating that Arshin-koff was not competent to serve as a board member and requesting that the Secretary not appoint him, as well as numerous exhibits referred to in the letter, including news articles, letters, affidavits, and a police report.
{¶ 7} By letter dated February 20, 2008, the Secretary rejected the Committee’s recommendation of Arshinkoff for appointment to the board of elections.
{¶ 8} The Secretary noted that the Committee could submit a recommendation for another elector for appointment to the board of elections but that it would have to do so by the close of business on February 29 because the Secretary had to make the appointment on March 1.
Second Recommendation
{¶ 9} On February 26, 2008, the Committee held a meeting to consider its response to the Secretary’s refusal to reappoint Arshinkoff to the board of elections. After the meeting, the Committee recommended to the Secretary that she appoint Brian K. Daley to the board of elections. Daley is a college graduate with a degree in business administration and is a certified internal auditor who has served several years in various managerial positions with different companies, including employment as the finance director for TRW Steering Wheel Systems, N.A., and as the controller for Gimbel’s Department Stores. He also served as a member of the Hudson City Council from 2004 to 2007 and was president of the council from 2006 through 2007.
{¶ 10} At a voter forum in Summit County on February 27, Wayne Jones told the Secretary that she should reject Daley for some of the same reasons that she had rejected Arshinkoff. At the same forum, Hudson City Council President Mike Moran, a member of the Democratic Party, told the Secretary that he had
{¶ 11} Hardy, the Secretary’s regional liaison, received information about Daley from Moran and Daley’s neighbors, Debra and William Vagas, as well as from other individuals. Hardy forwarded this information to the Secretary’s office, and the Secretary reviewed it along with the materials submitted by the Committee and Daley. The evidence that the Secretary reviewed included an October 29, 2007 newspaper editorial endorsing Daley’s opponent in a November 2007 city council race and a February 28, 2008 e-mail concerning Daley sent by Moran to Hardy.
{¶ 12} In a February 29, 2008 letter, the Secretary rejected the Committee’s recommendation that Daley be appointed to the board of elections. The Secretary concluded that Daley would not be a competent board member because he did not possess the proper temperament, and his past behavior indicated that he would foster an unproductive work environment.
Appointment of Donald Varían
{¶ 13} In the same letter in which she rejected the Committee’s recommendation of Daley, the Secretary appointed Donald Varían to the board of elections for the four-year term beginning March 1, 2008. Varían is an attorney and a member of the Summit County Republican Party Central Committee. Varían has been a Republican and has participated in Republican Party activities and organizations for over 40 years.
{¶ 14} The Secretary admitted receiving Varian’s name from Wayne Jones at the February 27 voter forum in response to her question about other viable Republican candidates if Daley was not an appropriate appointee. David M. Farrell, the Secretary’s director of elections, then contacted Varían and asked him whether he was interested in serving on the board of elections. After Varían indicated his interest, Farrell asked him a series of questions based on the Secretary’s questionnaire for prospective elections board members. Farrell then reported back to the Secretary about Varían, and the Secretary appointed him on February 29.
Extraordinary-Writ Case
{¶ 15} On March 4, 2008, the Committee filed this action for (1) a writ of mandamus to compel the Secretary to appoint Daley to the board of elections as recommended by the Committee and to reject the Secretary’s appointment of Varían to serve on the board of elections, (2) a writ of prohibition to prevent the Secretary from appointing Varían to serve on the board of elections, (3) a peremptory other writ to stay the Secretary’s appointment of Varían pending the
{¶ 16} The Committee captioned this case as an expedited election case under S.Ct.Prac.R. X(9) and filed a motion for the issuance of an emergency writ, stay, or other immediate relief. On that same day, we denied the motion and noted that this is not an expedited election case. State ex rel. Summit Cty. Republican Party Executive Commt. v. Brunner,
{¶ 17} On March 5, the board of elections conducted an organizational meeting at which the newly formed board terminated the employment of seven employees. See, e.g.,
{¶ 18} The parties have submitted their evidence and briefs.
{¶ 19} This cause is now before us for our consideration of the merits.
II
{¶ 20} For reasons expressed in the concurring opinions, the court grants the writ of mandamus to compel the Secretary to appoint Daley to the board of elections in place of Varían. This renders moot the Committee’s additional claims for a writ of mandamus to compel the Secretary to reject the appointment of Varían and for a writ of prohibition to prevent the Secretary from appointing Varían.
Other Writ and Alternative Writ
{¶ 21} The court also denies the Committee’s requests for an emergency other writ and an alternative writ pending the adjudication of this case. This case has now been resolved, and the court previously denied the Committee’s motion for this relief.
{¶ 22} The Committee is also not entitled to writs to vacate certain decisions in which Varían participated, because he was at least a de facto officer while serving on the board, and his actions, when questioned collaterally, are as binding as those of an officer de jure. In re J.J.,
Conclusion
{¶ 23} In summary, the court grants a writ of mandamus to compel Secretary of State Jennifer Brunner to appoint Brian K. Daley to the Summit County Board of Elections. The court denies the Committee’s requests for an other writ or alternative writs and holds that the Committee’s other claims are moot.
Judgment accordingly.
Concurrence Opinion
concurring.
{¶ 24} I concur with the judgment of the majority that a writ of mandamus should issue to compel the Secretary of State to vacate the appointment of Donald Varían and to appoint Brian Daley to the Summit County Board of Elections.
{¶ 25} This case calls for the court to interpret
{¶ 26} In construing statutes, “ ‘our paramount concern is legislative intent.’ ” State ex rel. Russo v. McDonnell,
{¶ 27}
{¶ 28} The plain language of this statute provides that the executive committee of the party entitled to the appointment may recommend a qualified elector for appointment to the board of elections and that the secretary of state shall appoint the elector unless the secretary has reason to believe that the elector would not be a competent board member. This court stated in State ex rel. Pike Cty. Republican Executive Commt. v. Brown (1989),
{¶ 29} In the instant case, the Committee recommended Alex Arshinkoff, but the Secretary rejected that recommendation and advised the Committee that it could submit another recommendation. In response, the Committee made a second recommendation, Brian Daley. The Secretary rejected Daley and sua
{¶ 30} While
{¶ 31} Thus, two problems exist with respect to the actions taken by the Secretary of State: one, the rejection of the Daley recommendation, because the statute does not authorize the Secretary to reject a second recommendation — the statute expressly authorizes the rejection of only & first recommendation; two, the Secretary appointed Varían without statutory authority because the Committee had recommended Daley, and the statute provides that “[%\f no such recommendation is made, the secretary of state shall make the appointment.” (Emphasis added.)
{¶ 32}
{¶ 33} Here, the secretary of state acted outside the authority of the statute by appointing Donald Varían; the limited statutory authorization for making such an appointment arises only when the executive committee fails to make a recommendation. It did not fail to make a recommendation in this case, and the action of the Secretary therefore is outside the scope of the express language of the statute.
{¶ 34} Allowing the secretary of state to repeatedly reject the recommendations filed by an executive committee enables the secretary of state to exercise
{¶ 35} The procedure in
{¶ 36} I recognize that the secretary of state has a duty to appoint the members of the boards of elections (
{¶ 37}
{¶ 39} I pay no heed to Justice Pfeifer’s coy argument that the statute does not specifically authorize a mandamus action for a second recommendation. Whenever a public officer fails to perform a statutory duty and an affected party has no adequate remedy at law, mandamus is an appropriate remedy. The Committee seeks to enforce its rights via mandamus because instead of appointing Daley, the Secretary rejected the Daley recommendation — without statutory authorization— and appointed Varían — again without statutory authorization.
{¶ 40} While I agree with the analysis of Justice Pfeifer that the secretary of state has a duty to appoint and the committee has a right to make a recommendation, I disagree with his choice to ignore the facts and the law that are counter to the outcome he desires. For example, he asserts the untimeliness of the Daley recommendation but ignores the statutory authority of the Committee to make a second recommendation and the letter from the Secretary advising the Committee that it could make such a recommendation.
{¶ 41} Justice Pfeifer further ignores the lack of statutory authority for the secretary to reject a second recommendation. Instead, he reads it into the statute, implying that it is there, but it is not.
{¶ 42} I also take exception to his mischaracterization of my opinion, suggesting that it converts the committee’s right to make a recommendation into a right to appoint. The statute plainly fixes the appointment authority with the secretary of state. His analysis only confuses the issue.
{¶ 43} Moreover, the Chief Justice goes further and concludes that he would uphold the appointment of Varían to the board of elections. However,
{¶ 44} In addition, I take strong exception to the Chief Justice’s misstatement that my view is “a break from our previous decisions,” ¶ 97. This is a matter of first impression in Ohio, as this court has never considered a case involving rejection of a second recommendation. Politely, there is no previous decision involving rejection of a second recommendation. All precedent in this field
{¶ 45} Finally, I think that the Chief Justice’s mischaracterization of my view of this statute, implying that I have morphed the committee recommendation into a committee appointment, is disingenuous. The Chief Justice totally ignores the role the legislature envisioned for the executive committee of a political party to recommend electors for appointment. It is patently a two-step process, with the committee making the recommendation and the secretary of state making the appointment, each fulfilling important roles. While the legislature has not accorded the secretary of state discretion to reject a second recommendation, it has not divested the secretary of the duty to appoint. Because the secretary has that statutory duty, a committee may enforce its rights against the secretary by way of mandamus.
{¶46} Justice Pfeifer and Chief Justice Moyer correctly assert that
{¶ 47} In this case, the breach began with the secretary of state, not with the Committee. When the Secretary rejected the Arshinkoff recommendation, the Secretary’s notification letter advised the Committee that it could submit a second recommendation. The Committee, in response, recommended Daley. It was the Secretary who rejected Daley — without express statutory authority to do so — and the Secretary who appointed Varían — in contravention of the plain language of the statute permitting the secretary to appoint only “[i]f no such recommendation is made.”
{¶ 48}
{¶ 49} Accordingly, I concur with the judgment of the majority to grant a writ of mandamus compelling the Secretary of State to vacate the Varían appointment and to appoint Daley to the Summit County Board of Elections.
{¶ 50} Finally, given the various interpretations of this statute apparent from the numerous opinions in this case, I would encourage members of the General
Concurrence Opinion
concurring.
{¶ 51} I write separately to explain why I believe that the correct construction of
I
{¶ 52} The other concurring opinion expresses a view strikingly different from the dissenters’ view regarding
{¶ 53} These diametrically opposed readings of the statute starkly illustrate its ambiguity regarding what process pertains after the secretary of state rejects a committee’s first recommended appointee. Because the statute is ambiguous, the court may consider the “object sought to be attained” by
A
{¶ 54} Although
{¶ 55} The evident purpose of
{¶ 56} The role of a county board of elections is to even-handedly and fairly implement the election laws as expressed in the Revised Code and the Administrative Code and by the directives and advisories of the secretary of state. See, e.g.,
{¶ 57}
{¶ 58} The appointment process of board members set out in
{¶ 59} To decline to appoint a committee’s recommended board candidate, the secretary must notify the chairman of the county executive committee in writing, stating the secretary’s reasons for that determination. The committee then has the option of challenging the secretary’s decision in a mandamus case brought under
{¶ 60} The purposes of
B
{¶ 61}
{¶ 62} “In such cases [i.e., when the secretary rejects a committee’s recommendation because she has reason to believe that the recommended elector would not be a competent board member] the secretary of state shall so state in writing to the chairman of such county executive committee, with the reasons therefor, and such committee may either recommend another elector or may apply for a writ of mandamus to the supreme court to compel the secretary of state to appoint the elector so recommended. In such action the burden of proof to show the qualifications of the person so recommended shall be on the committee making the recommendation.”
{¶ 63} In State ex rel. Democratic Executive Commt. of Lucas Cty. v. Brown (1974),
{¶ 64} “The enactment of Section 4785-9, General Code, and subsequently R.C. 3501.07 , shifted the burden of proof of qualification in a mandamus action to those persons seeking the appointment.
{¶ 65} “This enactment, we believe, conforms to the general rule in mandamus actions that the writ will not issue to control the discretion of a public official vested with the power of appointment but may be invoked to remedy an abuse of such discretion.” Id. at 161, 68 0.0.2d 100,314 N.E.2d 376 .
{¶ 66} Consistent with Brown, a committee must establish that the Secretary abused her discretion in rejecting the committee’s recommended board appointee. However, in order to give full effect to the language of
{¶ 67} Additionally, Brown did not discuss in detail the evidence that could be presented and considered in a mandamus case. Consequently, briefly addressing the parties’ arguments regarding evidence that may be considered in a mandamus action brought pursuant to
1
{¶ 68} First, contrary to relator’s assertion, the statute does not entitle the committee or its recommended candidate to present evidence to the secretary of state before the mandamus action is filed.
2
{¶ 69} Because
{¶ 70} Restricting the evidence in the mandamus action to what was before the Secretary when she made her initial decision also would be at odds with the statute’s express placement on the committee of the burden of proving the candidate’s qualifications. If so construed, the statute would simultaneously place on the committee the burden of proof while preventing it from introducing evidence to meet it. I do not believe that the statute sanctions such a contradictory result. See
{¶ 71} In my view, because the committee’s right to present evidence is limited to the mandamus action, the committee may present evidence in the mandamus case that was not before the Secretary when she made her decision. This construction of
3
{¶ 72} As noted above, the duty of the county boards is to implement the election laws at the county level by applying the Revised Code, the Administrative Code, and the Secretary’s directives and advisories relating to the election laws. Thus, a county board of elections is not a policy-making body. Its role is to implement the election laws to ensure fair and efficient elections. It is with these duties in mind that the Secretary must measure the competence of a person recommended by the committee for appointment to the board — whether the
{¶ 73} The evidence before the Secretary and before this court is that Daley, the person recommended by the Committee, possesses the intelligence, capability, and experience to discharge board duties. Consequently, on this measure of competence, there is no question that the Secretary could not have had a reasonable belief that Daley would have been other than a competent member of the board.
{¶ 74} The Secretary, however, argues that a person may be deemed not competent to be an elections board member notwithstanding the person’s extensive management experience and ability to understand and apply election law and procedure. The Secretary argues that a person also may be deemed incompetent to serve on a board of elections because of his personality.
{¶ 75} Here, the Secretary’s specific reason for rejecting Daley’s appointment was her conclusion that he “does not possess the temperament required for competent service as a board of elections member.” The Secretary’s letter listed two descriptions of Daley that caused her concern: a newspaper article described Daley as an “arch ideologue” and a “bully,” and a letter to the Secretary from a Hudson City Council member characterized Daley as, among other things, “very outspoken, never conceding] mistakes, and [trying] to intimidate others with a loud voice, and sometimes threats.” The Secretary stated that she “cannot in good conscience appoint an individual to the Board whose past behavior predicts the fostering of [an] * * * unproductive environment.” The incidents mentioned in the letter referred to Daley’s alleged conduct while a member of Hudson City Council. (The Secretary also received correspondence alleging misuse of public office by Daley, which the Secretary refers to in her brief. However, the Secretary’s letter rejecting Daley did not rely upon that allegation.)
{¶ 76} Although personality is at the remote end of what may reasonably be considered when determining competency, this court has, in the past, upheld the decision of a secretary of state not to reappoint a person to the board of elections when there was clear, documented evidence that personality conflicts between the board member and other board members and employees prevented the board from fully functioning. State ex rel. Democratic Executive Commt. of Lucas Cty. v. Brown,
{¶ 77} In Brown, however, the candidate had already served on the board and had demonstrated through actions documented in the board’s minutes that his service on the board was detrimental to its proper and efficient functioning. Id. at 163,
{¶ 78} In Brown, the issue was disruptive conduct that was well documented and directly involved the body for which the appointment was being made. Here, the Secretary’s conclusion that Daley is incompetent to serve on the elections board, a position that he has never held, because of a possible abrasive personality (a point on which relator provides substantial evidence to the contrary), rises to no more than speculation. The statute giving the Secretary the authority to reject a committee recommendation, however, requires more than speculation. Cf. State ex rel. Cuyahoga Cty. Democratic Party Executive Commt. v. Taft (1993),
{¶ 79} Consequently, I find that the Secretary has exceeded her statutory discretion by rejecting the Committee’s recommendation of Daley for appointment to the county board of elections. The Secretary’s action of rejecting the Committee’s recommendation on the basis of the candidate’s personality and the Secretary’s prediction that it would “foster[ ] [an] * * * unproductive environment” at the board, when the person rejected had not previously served on the board of elections, was not reasonable.
{¶ 80} Accordingly, I conclude that the Secretary abused her discretion and that the requested writ of mandamus to appoint Daley to the Summit County Board of Elections should be granted.
{¶ 81} The view of the dissenters that
{¶ 82} The Secretary argues, and the dissenters agree, that
{¶ 83} As noted above,
A
{¶ 84} The statute at issue here,
{¶ 85} “At a meeting held not more than sixty nor less than fifteen days before the expiration date of the term of office of a member of the board of elections, or within fifteen days after a vacancy occurs in the board, the county executivecommittee of the major political party entitled to the appointment may make and file a recommendation with the secretary of state for the appointment of a qualified elector. The secretary of state shall appoint such elector, unless he has reason to believe that the elector would not be a competent member of such board. In such cases the secretary of state shall so state in writing to the chairman of such county executive committee, with the reasons therefor, and such committee may either recommend another elector or may apply for a writ of mandamus to the supreme court to compel the secretary of state to appoint the elector so recommended. In such action the burden of proof to show the qualifications of the person so recommended shall be on the committee making the recommendation. If no such recommendation is made, the secretary of state shall make the appointment.”
{¶ 86} As discussed above,
{¶ 87} To foreclose a mandamus challenge at this juncture would remove both of the statutory remedies granted to a political party executive committee to ensure meaningful participation in the selection of the board member to which that party is entitled: challenging the Secretary’s rejection of its second candidate or recommending someone else from its party to serve as a board member for that party. Such a construction of
{¶ 88} The dissenters urge that State ex rel. Pike Cty. Republican Executive Commt. v. Brown,
{¶ 89} In Pike Cty.,
{¶ 90} Thus, Pike Cty. held that once a local party executive committee unsuccessfully challenges in mandamus the Secretary’s rejection of its initial candidate, the committee cannot then make a second recommendation. In this case, by contrast, the Committee did not file a mandamus action to challenge the Secretary’s rejection of its first recommendation, but instead recommended a second person. Pike Cty. does not foreclose the Committee’s (first) mandamus action here.
{¶ 91} Neither does the language of
B
{¶ 92} Also misplaced is the Secretary’s second argument — that the Committee’s second recommendation was untimely because it was made less than 15 days before the end of the outgoing board member’s term. To be sure, the statute provides that a committee may make a recommendation at a meeting held “not more than sixty nor less than fifteen days before the expiration date of’ the term of the board member to be replaced, or “within fifteen days after a vacancy occurs in the board.” That time frame relates to the committee’s initial recommendation. However, the statute is silent regarding the timing of any second
{¶ 93} The Secretary’s proposed construction of the statute would allow the Secretary to delay ruling on an initial recommendation until within 14 days of the expiration of the board member’s term and thereby eliminate any right a committee would otherwise have under
{¶ 94} For all of these reasons, I would hold that upon the Secretary’s rejection of a committee’s second recommendation of a board of elections member, the Committee has the right under
Notes
. The Secretary’s rejection of the first recommendation was made on February 20, less than 15 days before the end of the term.
Dissenting Opinion
dissenting.
{¶ 95} I respectfully dissent from the per curiam decision to grant the writ of mandamus to compel the secretary of state to appoint Brian Daley to the Summit County Board of Elections. As support for this decision, the majority relies upon two separate concurring opinions. I disagree with both opinions and address them in turn.
{¶ 96} In his concurring opinion, Justice O’Donnell takes an overly strict view of
{¶ 97} This reading ignores the statutory context of
{¶ 98} Justice O’Donnell’s interpretation would greatly diminish the appointment power of the secretary of state and eliminate her ability to determine the competency of recommended electors in the circumstances presented by this case. It would, in effect, change the county political executive committee’s statutory right to “make and file a recommendation with the secretary of state for the appointment of a qualified elector” into a right to make an appointment on its own. (Emphasis added.)
{¶ 99} The more appropriate reading of the statute is the one advanced by Justice Pfeifer. Based on the well-reasoned analysis in his dissent, I agree that
The Standard of Review
{¶ 101} The standard of review in a mandamus action filed pursuant to
{¶ 102} “The enactment of Section 4785-9, General Code, and subsequently
{¶ 103} “This enactment, we believe, conforms to the general rule in mandamus actions that the writ will not issue to control the discretion of a public official vested with the power of appointment but may be invoked to remedy an abuse of such discretion.” State ex rel. Democratic Executive Commt. of Lucas Cty. v. Brown (1974),
{¶ 104} The abuse-of-discretion standard has been applied in reviewing public officials’ decisions for more than 100 years, see State ex rel. Ins. Co. v. Moore (1884),
{¶ 105} The abuse-of-discretion standard affords great deference to the secretary of state’s decision. “An abuse of discretion * * * must be more than an error of law or an error of judgment. It means discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Broum,
{¶ 106} Public officials, from high-ranking officers such as the secretary of state to trial court judges, are elected because the voters of this state trust them to use their discretion for the public good. “Wrong” decisions may occasionally be made and go uncorrected, but that is the reality of the abuse-of-discretion standard. As this court stated in 1884, “the principle is too firmly established to be questioned, that where a public officer is invested with discretionary power concerning the performance of a public duty required at his hands, or, wherever in determining the course of official action he is called upon to use official judgment and discretion, his exercise of them, in the absence of bad faith, fraud and gross abuse of discretion, will not be controlled or directed by mandamus.” Moore,
Application of the Standard of Review
{¶ 107} Although I agree with Justice Pfeifer that we need not examine the evidence in this case because the Committee does not have a right to seek mandamus in these circumstances, I will apply the standard of review to this case for purposes of illustration.
{¶ 108}
{¶ 110} The structure of boards of elections raises to high importance the ability and inclination of board members to be able to work well with other members of the board and with board personnel. While an abuse of discretion may exist if the Secretary relies on improper grounds in making her decision, see, e.g., Taft,
{¶ 111} In his concurring opinion, Justice Cupp relies on additional evidence regarding Daley’s competence presented by the Committee to support his decision to vote for granting the writ of mandamus. He reasons that the Committee must be given the chance to develop the record beyond what the secretary of state initially considered so that it can meet the burden of proof placed upon it under
{¶ 112} However, if we are to consider additional evidence, there is no apparent abuse of discretion in view of the additional evidence that both parties submitted. The Committee presented evidence that generally refutes the ideas
{¶ 113} Even considering this additional evidence, this case would amount to a difference of opinion as to whether Daley’s personality traits would have deleterious effects on the work of the Summit County Board of Elections. In such circumstances, where evidence exists to support both conclusions, neither a clear legal right to the appointment nor a clear legal duty to appoint the recommended person is established, and we should defer to the secretary of state’s discretion. See Brown,
{¶ 114} The fact that Daley had never served on the local board of elections does not change this fact. Brown does not state that an individual may be deemed incompetent only for personality conflicts exhibited in prior board of elections service; personality issues that arise at any time may provide sufficient evidence of incompetence. Brown,
{¶ 115} Therefore, despite the somewhat unusual circumstances in which the secretary of state appointed Varían, if I were applying the abuse-of-discretion standard to this case, I would hold that the secretary of state did not abuse her discretion in rejecting the recommendation to appoint Daley to the Summit County Board of Elections, and I would deny the writ of mandamus and uphold the Secretary’s appointment of Donald Varían to the Summit County Board of Elections.
Dissenting Opinion
dissenting.
{¶ 116} Ohioans learn something new today: two wrongs can make a writ. Through a unique bit of judicial alchemy, two unrelated concurring opinions that were each able to garner the support of only one other justice have combined to produce four votes to grant a writ of mandamus. A majority of this court thus announces the granting of a writ of mandamus, but cannot exactly put its finger on why; it grants a writ of mandamus on the basis of an unclear legal duty. Especially disturbing is the fact that one of the concurrences is based upon a
Unavailability of Mandamus Without Legislative Authority
{¶ 117} When this court grants a writ of mandamus, as in this instance, it commands a public official in another branch of government to perform a certain act. We do not undertake such serious business based upon this court’s view of what the law ought to be. To be entitled to the requested writ, relators must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of the secretary of state to provide it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Evans v. Blackwell,
{¶ 118} There can be no mandamus without a clear legal duty, and this court does not have the power to establish the legal duty enforceable in mandamus. State ex rel. Lewis v. Rolston,
{¶ 119} This court is powerless to grant a writ of mandamus in this case because the General Assembly has placed upon the secretary of state no legal duty to do what the relator seeks. Correspondingly, the General Assembly has granted the relator no legal right to the relief it seeks. Nothing in
The Powers and Duties of the Secretary of State
{¶ 120}
{¶ 122} “The secretary of state shall do all of the following:
{¶ 123} “(A) Appoint all members of boards of elections.”
{¶ 124} Pursuant to
{¶ 125} “There shall be in each county of the state a board of elections consisting of four qualified electors of the county, who shall be appointed, by the secretary of state, as the secretary’s representatives, to serve for the term of four years. On the first day of March in even-numbered years the secretary of state shall appoint two of such board members, one of whom shall be from the political party which cast the highest number of votes for the office of governor at the most recent regular state election, and the other shall be from the political party which cast the next highest number of votes for the office of governor at such election.” (Emphasis added.)R.C. 3501.06.
{¶ 126} The secretary of state’s appointments to the boards of elections must be equally divided between the two major political parties, pursuant to
{¶ 127} Moreover, in the process of appointing elections board members, time is of the essence.
{¶ 128} Any interpretation of
Limits to Political Party Executive Committee’s Authority and Recourse under
{¶ 129} The relator must establish a clear legal right to its requested relief.
{¶ 130} Further, the participation of the county executive committee in the appointment process is permissive, not mandatory, under
{¶ 131} The law anticipates and allows the secretary of state to make appointments to boards of elections without a recommendation of the county executive committee. A grant of mandamus in this case must presuppose the absolute necessity of participation by county executive committees. There is no statutory support for that.
The Operation of
{¶ 132}
{¶ 133} “At a meeting held not more than sixty nor less than fifteen days before the expiration date of the term of office of a member of the board of elections, or within fifteen days after a vacancy occurs in the board, the county executive committee of the major political party entitled to the appointment may make and file a recommendation with the secretary of state for the appointment of a qualified elector. The secretary of state shall appoint such elector, unless he has reason to believe that the elector would not be a competent member of such board. In such cases the secretary of state shall so state in writing to the chairman of such county executive committee, with the reasons therefor, and such committee may either recommend another elector or may apply for a writ of mandamus to the supreme court to compel the secretary of state to appoint the elector so recommended. In such action the burden of proof to show the qualifications of the person so recommended shall be on the committee makingthe recommendation. If no such recommendation is made, the secretary of state shall make the appointment.”
{¶ 134} There is no ambiguity in how
{¶ 135} 1. The county executive committee of the political party entitled to the appointment may make and file a recommendation with the secretary of state for the appointment of a qualified elector if it does so at a meeting held not more than 60 nor less than 15 days before the expiration date of the term of office.
{¶ 136} 2. The secretary shall appoint the recommended elector, unless the secretary has reason to believe that the elector would not be a competent member of the board.
{¶ 137} 3. If the secretary has reason to believe that the elector would not be competent, the secretary must give written reasons to the chairman of the committee.
{¶ 138} 4. The committee may either recommend another elector or apply to this court for a writ of mandamus to compel the secretary of state to appoint the recommended elector. In the case of a writ of mandamus, the committee has the burden to prove the qualifications of the recommended elector.
{¶ 139} 5. If no such recommendation is made, the secretary of state shall make the appointment.
{¶ 140} The plain language of
{¶ 141} This court has held that the participation of the county executive committee in the appointment process is not mandatory and that the committee has a limited opportunity to make a recommendation. Although a committee may seek a writ of mandamus on its original recommendation, the committee’s power to recommend effectively ends at the point it seeks mandamus. State ex rel. Pike Cty. Republican Executive Commt. v. Brown (1989),
{¶ 142} “If the committee’s first choice is not appointed, the committee may either make another recommendation or it may file for a writ of mandamus.
{¶ 143} Thus, when the court finds in favor of the Secretary in the mandamus action, the committee has no authority to make a second recommendation; the Secretary makes the replacement appointment on her own, without having to consider a recommendation from the committee.
{¶ 144}
{¶ 145} By not allowing the committee to make another recommendation after a mandamus action is filed,
{¶ 146}
{¶ 147} Had the General Assembly intended a repeating procedure, it could have easily included it in
The Concurrences
{¶ 148} Justice O’Donnell’s concurrence ignores
{¶ 149} Justice O’Donnell’s concurrence states that “[t]he procedure in
{¶ 150} Justice Cupp’s concurrence recognizes the right of the Secretary to reject the committee’s second recommendation, but would give the committee an additional chance to seek mandamus in this court. His concurrence states that “[t]o foreclose a mandamus challenge at this juncture would remove both of the statutory remedies granted to a political party executive committee to ensure
{¶ 151} To the contrary, the committee itself refused the remedy of mandamus. It had two choices upon the Secretary’s rejection of Arshinkoff: file a mandamus action or make another recommendation. The committee declined to seek mandamus regarding its first, and presumably best, recommended elector. It had the right to argue before this court why Arshinkoff was indeed competent to serve. It chose not to assert its right to do so. The statute is not written to allow the committee to assert that right some other time — time is of the essence in the process of appointing boards of elections. The committee blew its one chance.
{¶ 152} Instead, the committee chose a route that did not include mandamus— it chose to recommend a second elector. Although the Secretary did not choose to appoint that recommended elector,
Failure to File Second Recommendation Within the Time Specified in
{¶ 153} Even assuming that the Secretary’s rejection of the committee’s first recommendation restarted the statutory procedure set forth in
{¶ 154} The committee relies on the Secretary’s supposed 21-day delay in ruling on its first recommendation to support its argument that the statute should not include a time requirement on successive recommendations. This argument ignores the committee’s own 30-day delay in submitting its first recommendation to the Secretary. Under
Conclusion
{¶ 155} Legislative silence does not equate to a clear legal duty or to a clear legal right. Neither concurrence is tenable without adding language to
{¶ 156} Because