WHITMAN v. HAMILTON COUNTY BOARD OF ELECTIONS ET AL.
No. 2002-1700
Supreme Court of Ohio
October 30, 2002
97 Ohio St.3d 216 | 2002-Ohio-5923
Submitted October 25, 2002. IN PROHIBITION AND MANDAMUS.
Per Curiam.
{¶1} In February 2002, Frederick D. Nelson filed a declaration of candidacy and a petition for the Republican Party nomination for judge of the Court of Common Pleas of Hamilton County, Ohio, for the full term commencing February 10, 2003. Nelson subsequently won the May 7, 2002 primary election and is the Republican Party candidate for that judgeship in the November 5, 2002 general election. Relator, Bruce B. Whitman, is the Democratic Party candidate in the same election.
{¶2} On August 14, 2002, Whitman filed a written protest challenging Nelson’s candidacy with respondent Hamilton County Board of Elections. In his protest, Whitman claimed that Nelson did not meet the eligibility criteria of
{¶3} On September 16, 2002, the board of elections deadlocked two-to-two on the motion to dismiss Whitman’s protest. On September 30, 2002, the board
{¶4} On September 30, 2002, the Secretary of State dismissed Whitman’s protest. The Secretary of State agreed with Nelson that the protest was not timely filed.
{¶5} On October 3, 2002, Whitman filed this action for a writ of prohibition or, in the alternative, a writ of mandamus to prevent the board and the Secretary of State from placing Nelson’s name on the November 5, 2002 election ballot, and if already placed, to strike his name from the ballot. Respondents filed answers, and the parties filed evidence and briefs pursuant to the expedited schedule in S.Ct.Prac.R. X(9).
{¶6} This cause is now before the court for a consideration of the merits.
{¶7} Whitman requests writs of prohibition and mandamus to prevent the board of elections and the Secretary of State from placing Nelson’s name on the November 5, 2002 election ballot.
Mandamus
{¶8} Whitman’s mandamus claim is an ill-disguised request for prohibitory injunctive relief: to prevent Nelson’s candidacy at the November 5, 2002 general election. ” ‘In general, if the allegations of a complaint for a writ of mandamus indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, the complaint does not state a cause of action in mandamus and must be dismissed for want of jurisdiction.’ ” State ex rel. Phillips v. Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 535, 537, 757 N.E.2d 319, quoting State ex rel. Grendell v. Davidson (1999), 86 Ohio St.3d 629, 634, 716 N.E.2d 704.
{¶9} Like the relator in State ex rel. Cunningham v. Amer Cunningham Co., L.P.A. (2002), 94 Ohio St.3d 323, 324, 762 N.E.2d 1012, Whitman attempts to couch his claim in terms of compelling affirmative duties on the part of respondents—to remove Nelson’s name from the ballot if it has already been placed
{¶10} Therefore, we lack jurisdiction over Whitman’s mandamus claim, and as in comparable expedited election cases, we dismiss it. Phillips, 93 Ohio St.3d at 537, 757 N.E.2d 319; State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections (1995), 72 Ohio St.3d 69, 70-71, 647 N.E.2d 769.
Prohibition
{¶11} 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. See, e.g., State ex rel. Kelly v. Cuyahoga Cty. Bd. of Elections (1994), 70 Ohio St.3d 413, 414, 639 N.E.2d 78; State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 583, 651 N.E.2d 995. There is no allegation of fraud or corruption here. Consequently, the dispositive issue is whether the Secretary of State abused his discretion or clearly disregarded applicable law in dismissing Whitman’s protest as untimely.
{¶12} The Secretary of State neither abused his discretion nor clearly disregarded applicable law in holding that Whitman’s protest was untimely and that at the time of the protest, the board of elections lacked authority to consider sua sponte Nelson’s qualifications under
{¶13} “(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:
{¶14} “(1) 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 is invalid, in accordance with any section of the Revised Code providing a protest procedure. {¶15} “(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.
{¶16} “(3) The candidate’s candidacy or the petition violates the requirements of this chapter, Chapter 3513. of the Revised Code, or any other requirements established by law.”
{¶17}
{¶18} Furthermore, Whitman “cannot rely on the protest procedure in
{¶20} Whitman relies on State ex rel. Carr v. Cuyahoga Cty. Bd. of Elections (1992), 63 Ohio St.3d 136, 586 N.E.2d 73, and 2000 Ohio Atty.Gen.Ops. No. 2000-033, to support his contention that boards of elections are empowered to act on petitions regardless of the timeliness of the petition.
{¶21} Whitman’s reliance on these authorities is misplaced. Carr preceded the amendment to
{¶22} Moreover, this conclusion is consistent with our duty to defer to the Secretary of State’s interpretation of election law if it is subject to two different, but equally reasonable, interpretations. Herman, 72 Ohio St.3d at 586, 651 N.E.2d 995.
{¶23} In fact, Whitman’s construction of the pertinent statutes is unreasonable. Adopting Whitman’s interpretation would render
{¶24} Finally, despite Whitman’s claims to the contrary, he has a legal remedy should Nelson be elected and take office. Whitman could file a quo warranto action to challenge Nelson’s right to hold office. See, e.g., Carr, 63 Ohio St.3d at 138, 586 N.E.2d 73 (courts of common pleas and appellate courts may decide what constitutes the practice of law for purposes of statutory qualifications in quo warranto actions); see, also, State ex rel. Schenck v. Shattuck (1982), 1 Ohio St.3d 272, 1 OBR 382, 439 N.E.2d 891. For example, in State ex rel. Peirce v. Stark Cty. Bd. of Elections (1958), 168 Ohio St. 249, 250, 6 O.O.2d 339, 153 N.E.2d 393, we denied a writ of prohibition to prevent the candidacy of a person for common pleas court judge who allegedly did not meet the requirement of
{¶25} Therefore, Whitman is not entitled to the requested writ of prohibition.
{¶26} Accordingly, we dismiss Whitman’s claim for a writ of mandamus and deny the writ of prohibition.
Judgment accordingly.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, J., concurs in judgment only.
DOUGLAS, J., concurring in judgment only.
{¶27} I concur in the judgment of the majority but for a reason different from those set forth by the majority opinion.
{¶28} This provision could not be clearer, and, therefore, further discussion by the majority in denying the requested writ is unwarranted. Accordingly, I concur in the judgment only.
Dinsmore & Shohl, L.L.P., and Mark A. Vander Laan, for relator.
Michael K. Allen, Hamilton County Prosecuting Attorney, Gordon M. Strauss and Edward J. Geiser, Assistant Prosecuting Attorneys, for respondent Hamilton County Board of Elections.
Betty D. Montgomery, Attorney General, Arthur J. Marziale Jr. and Elizabeth Luper Schuster, Assistant Attorneys General, for respondent Secretary of State J. Kenneth Blackwell.