STATE OF OHIO, еx rel. CLAYTON WELLER v. TUSCARAWAS COUNTY BOARD of ELECTIONS
Case No. 2019 AP 09 0037
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
September 30, 2019
2019-Ohio-4032
Hon. W. Scott Gwin, P. J.; Hon. John W. Wise, J.; Hon. Earle E. Wise, Jr., J.
CHARACTER OF PROCEEDING: Writ of Mandamus; JUDGMENT: Denied
For Relator
TONYA J. RODGERS
BAKER, DUBLIKAR , BECK WILEY & MATHEWS
400 South Main Street
North Canton, Ohio 44720
For Respondent
ROBERT R. STEPHENSON II
ASSISTANT PROSECUTOR
125 East High Avenue
New Philadelphia, Ohio 44663
Wise, John, J.
{¶1} Relator, Clayton Weller, filed a Complaint for Writ of Mandamus against Respondent, Tuscarawas County Board of Elections (“Board of Elections“), on September 9, 2019. The issue presented in Mr. Weller‘s writ of mandamus is whether his name should be placed on the November 5, 2019 ballot as a candidate for the office of mayоr for the Village of Sugarcreek.
{¶2} Mr. Weller circulated part petitions containing a “statement of candidacy” and “nominating petition.” On June 21, 2019, Mr. Weller timely filed four part petitions with the Board of Elections. The Board of Elections determined Mr. Weller‘s part petitions contained a total of 72 valid signatures. However, the Board of Elections met on August 19, 2019, and rеjected certification of Mr. Weller‘s petitions for placement on the general election ballot because the “nominating petition” section of the Petition Form No. 3-O was not completed on all four part petitions. An example of the four incomplete part petitions’ “nominating petition” section is below:
{¶3} The Board of Elections notified Mr. Weller of its decision by letter dated August 22, 2019. Mr. Weller thereafter filed this original action and maintains that under
{¶4} To prevail on his writ, Mr. Weller must prove that he has a clear legal right to have his name placed on the November 5, 2019 ballot, that the Board of Elections is under a clear legal duty to provide the requested relief, and that Mr. Weller has no adequate remedy in the ordinary course of the law. State ex rel. Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.2d 940, ¶13. We find Mr. Weller has established that he has no adequate remedy in the ordinary course of the law due to the nearness of the general election. See State ex rel. Greene v. Montgomery Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶10.
{¶5} “In extraordinary actions challenging the decisions of the Secretary of State and boards of elections, the standard is whether they engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions.” Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶11. Here, there is no evidence or argument regarding fraud or cоrruption. Instead, the dispositive issues are whether the Board of Elections abused its discretion or clearly disregarded applicable law by rejecting Mr. Weller‘s part petitions.
{¶6} At the outset, Mr. Weller contends the standard for compliance under
{¶7} The Court further explained in Simonetti that “[w]hen considering questions of substantial compliance with an election statute, we examine whether the requirement at issue ‘serves a public interest and a public purpose.’ ” Id. at ¶ 27. In Simonetti, the Court concluded the requirement that a candidate sign the statement of candidaсy on the petition paper before circulating the nominating petition advances two public purposes. Id. First, it guarantees adequate notice of the candidatе‘s identity to electors and second, it ensures the petition will not be used for a candidacy other than the one intended by the signers. Id. Importantly, the Court concluded “[t]hese interests do not relate merely to the
{¶8} Here, Mr. Weller contends strict compliance with submission of a comрleted “nominating petition” was not required because
{¶9} In support of his argument, Mr. Weller cites State ex rel. Yacobozzi v. Lorain Cty. Bd. of Elections, 27 Ohio App.3d 280, 500 N.E.2d 905 (9th Dist.1985), where the court of appeals granted a writ of mandamus for placеment of relator‘s name on the ballot. The court found the absence of the day of the month on which the declaration of candidacy was completed did not mislead anyone and because the statement of candidacy was completely filled out prior to circulation among the electors, the electors were properly informed. Id. at 281. Yacobozzi is distinguishable from the facts here because in Yacobozzi, relator merely failed to complete a date and not an entire section of the petition.
{¶10} Further, under Simonetti and the substantial compliance analysis, we must determine whethеr the completion of the “nominating petition” section of the petition serves a public interest and public purpose. We find that it does. This section of the petition indicаtes to the signators of the petition the name of the candidate they are nominating, the office the candidate is running for, and whether the term sought by the
{¶11} Also, the fact that Mr. Wеller completed the “statement of candidacy” section of the petition does not remedy the fact that he did not complete the “nominating petition” section. Althоugh the “nominating petition” section of the petition contains information that duplicates the information provided in the “statement of candidacy,” the purpose of the two sections are not duplicative. They serve two separate purposes. The “statement of candidacy” is the candidate‘s declaration that he or she intends to run for a particular office and is an elector qualified to vote for the office he or she seeks. The “nominating petition” section of the petition actually identifies the candidate being nominated by the signators to the petition, the office being sought by the candidate, and the term of the office.
{¶12} Thus, Mr. Weller‘s failure to provide any information in the “nоminating petition” section of the petition does not relate merely to the “form” of the nominating petition, but goes to its very substance. Further, the “nominating petition” section of the petition serves several public interests and purposes. It identifies the person who is being nominated by the signators and the office being sought by the candidate.
{¶13} In his Reply, Mr. Weller references State ex rel. Phillips v. Lorain Cty. Bd. of Elections, 62 Ohio St.3d 214, 581 N.E.2d 513 (1991), which left blank the “nominаting committee” section of a petition. Id. Relator requested that the nominating petitions be rejected. Id. The Ohio Supreme Court disagreed and denied the writ because the current version of
{¶14} We disagree.
{¶15} For these reasons, we find the Tuscarawas County Board of Elections did not abuse its discretion or act in clear disregard of applicable legal provisions when it concluded Mr. Weller‘s Nominating Petitions were not completed as required by law.
{¶16} Mr. Weller‘s writ of mandamus is denied.
By: Wise, John, J.
Gwin, P. J., and
Wise, Earle, J., concur.
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