The opinion
OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. McMillan v. Ashtabula County Board of
Elections.
[Cite as State ex rel. McMillan v. Ashtabula Cty. Bd. of
Elections (1992), Ohio St.3d .]
Elections -- Declarations of candidacy and all separate
petition papers must be filed at the same time as one
instrument -- R.C. 3513.05, applied.
(No. 92-1911 -- Submitted and decided October 22, 1992 --
Opinion announced December 9, 1992.*)
In Prohibition.
Debra S. McMillan, relator, filed the instant complaint in
prohibition to prevent the Ashtabula County Board of Elections,
respondent, from placing the name of William A. Kobelak on the
November 3, 1992 ballot as a candidate for Judge of the County
Court of Ashtabula County, Eastern Division. McMillan had
protested the validity of Kobelak's candidacy with the board.
According to an employee of the board, in a written
statement submitted to the board at its September 9, 1992
protest hearing, she miscalculated the number of signatures
Kobelak needed on his nominating petition. She informed
Kobelak that he needed eighty-five signatures; he actually
needed 167 signatures.
Acting on this misinformation, Kobelak filed several
petition papers containing 125 signatures with the board on
July 2, 1992. Apparently after learning he needed 167
signatures, Kobelak, on August 4, 1992, filed more petition
papers. These latter petition papers contained 197 signatures.
After reviewing the second set of petition papers the
board determined that they contained the signatures of 173
qualified electors, six more than required. The board
evidently did not review Kobelak's first set of petition papers
for sufficiency of signatures.
The board rejected McMillan's protest, and McMillan filed
this complaint for writ of prohibition.
Debra S. McMillan, pro se.
Gregory J. Brown, Prosecuting Attorney, for respondent.
Per Curiam. R.C. 3513.05 states:
"* * * The declaration of candidacy and all separate
petition papers shall be filed at the same time as one
instrument. * * *"
McMillan, inter alia, argues that the board had no
authority to accept any petition papers other than those first
filed on July 2 and, since those petition papers contained
fewer than the number of legally required signatures, the board
should have ruled Kobelak off the ballot. The board responds
that a candidate who relies to his detriment on erroneous
information given him by a board of elections should be
permitted to file a new set of petition papers. We agree with
McMillan and grant the writ. With this disposition, we need
not address McMillan's remaining arguments.
In State ex rel. Weaver v. Wiethe (1965), 4 Ohio St.2d 1,
33 O.O.2d 1, 210 N.E.2d 881, Weaver, a candidate for city
council, filed a nominating petition consisting of several
separate petition papers that contained 562 signatures. Three
days later, the board of elections notified the candidate that
only 395 signatures, 105 less than needed, were valid. The
candidate then attempted to withdraw his nominating petition to
obtain additional valid signatures on additional petition
papers, but the board refused this demand. Nevertheless, and
within the deadline, the candidate presented additional
petition papers, containing 199 signatures, to the board. The
board, however, rejected the candidacy.
In a mandamus action seeking to place Weaver's name on the
ballot, we construed Section 4, Article IX of Cincinnati's
charter, which reads much like R.C. 3513.05 and states:
"* * * [A]ll separate papers comprising a nominating
petition shall be assembled and filed * * * as one instrument
* * *."
We held that traditional notions of fair play might allow
a candidate to withdraw his petition papers or file additional
papers. However, we concluded that the plain language of the
charter prevented this. Moreover, we observed that R.C.
3501.38(I) prohibits altering, correcting, or adding to a
petition after it is filed in a public office. Accordingly, we
denied the writ.
In State ex rel. Senn v. Cuyahoga Cty. Bd. of Elections
(1977), 51 Ohio St.2d 173, 5 O.O.3d 381, 367 N.E.2d 879, Senn,
a candidate for judge, submitted eleven part-petitions with
signatures to a clerk at the board of elections for a
preliminary check to determine whether Senn had obtained enough
valid signatures. The next day, the clerk informed Senn that
he had sufficient signatures. Senn added another part-petition
with additional signatures and filed the twelve part-petitions
with the board, paying his filing fee of $50. On the next day,
the filing deadline, Senn learned that he had not filed his
master form. Thirty-eight minutes before the deadline, he
filed the form, which he had not circulated, with the board.
In reviewing the court of appeals' order granting a writ
to place Senn's name on the ballot, we held that placing Senn's
name on the ballot violated R.C. 3513.05 and its admonition
that the declaration of candidacy and all part-petitions shall
be filed at the same time as one instrument. Consequently, we
reversed the court of appeals' judgment and denied the writ.
Under this authority, a candidate may file only one
declaration of candidacy and set of petition papers as one
instrument with the board of elections. Thus, in this case,
Kobelak's first filing is the only filing permitted. Since
this filing did not contain enough signatures, the board did
not have the authority to place his name on the ballot.
Moreover, since a candidate may not alter, correct, or add to a
petition after its filing, R.C. 3501.38(I), Kobelak may not
file, nor may the board of elections accept, additional
petition papers to add to the signature total.
As to Kobelak's reliance on the misinformation of the
board employee, the mistaken advice or opinion of an employee
of the board of elections does not estop the board from
removing a candidate's name from the ballot. State ex rel.
Svete v. Geauga Cty. Bd. of Elections (1965), 4 Ohio St.2d 16,
33 O.O.2d 139, 212 N.E.2d 420; State ex rel. Shaw v. Lynch
(1991), 62 Ohio St.3d 174, 176-177, 580 N.E.2d 1068, 1070.
Thus, Kobelak cannot excuse his insufficient petition on this
basis.
Accordingly, we grant the writ of prohibition and order
the board of elections to remove Kobelak's name from the
November 3, 1992 ballot.
Writ granted.
Sweeney, Acting C.J., Holmes, Douglas, Wright and H.
Brown, JJ., concur.
Resnick, J., dissents.
Moyer, C.J., not participating.
* We granted the writ in this case in an order dated
October 22, 1992, "consistent with the opinion to follow." See
65 Ohio St.3d 1438, 600 N.E.2d 681. We announce the "opinion
to follow" today.