State ex rel. Markulin v. Ashtabula Cty. Bd. of Elections

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The State ex rel. Markulin v. Ashtabula County Board of

Elections.

[Cite as State ex rel. Markulin v. Ashtabula Cty. Bd. of

Elections (1992), Ohio St.3d .]

Elections -- Mandamus to compel board of elections to certify

relator's nominating petition and place her name on

general election ballot as candidate for judge -- Writ

denied when relator is a "non-qualified elector" and a

"non-qualified circulator elector."

(No. 92-1864 -- Submitted and decided October 22, 1992 --

Opinion announced December 9, 1992.*)

In Mandamus.

On August 20, 1992, relator, Katica Markulin, a licensed

attorney and resident of Euclid, Cuyahoga County, Ohio, timely

filed with respondent, the Ashtabula County Board of Elections,

a nominating petition and statement of candidacy for the office

of Judge of the Ashtabula County Court, Eastern Division. The

nominating petition contained a legally sufficient number of

signatures. Respondent rejected relator's petition at a

meeting held on August 26, 1992. Relator contends that the

reason given for rejecting the petition was that she was an

"invalid circulator" of the petition. Respondent contends that

relator is a "non-qualified elector" and "non-qualified

circulator elector," and that it rejected relator's petition on

advice of Attorney Sara Rectenwald of the Secretary of State's

office.

On September 9, 1992, respondent held a hearing on the

rejection at relator's request and again rejected the petition

because relator was a "non-qualified elector" and

"non-qualified circulator elector." On September 28, 1992,

relator filed this action in mandamus to compel respondent to

certify her nominating petition and place her name on the

November 3, 1992 general election ballot as a candidate for

Judge of the Ashtabula County Court, Eastern Division.

Katica Markulin, pro se.

Gregory J. Brown, Prosecuting Attorney, for respondent.

Per Curiam. We deny the writ for the reasons that follow.

Relator raises five issues:

(1) That the rejection of her petition violated the open

meetings law, R.C. 121.22;

(2) that respondent erred by finding that she was a

"non-qualified circulator elector";

(3) that respondent erred by finding her a "non-qualified

elector";

(4) that the proceedings surrounding the rejection of her

petition were tainted by corruption; and

(5) that to the extent that R.C. 3513.261 imposes a

durational residency requirement for independent candidates, it

violates the First and Fourteenth Amendments to the United

States Constitution.

Open Meetings Law

R.C. 121.22(H) provides in part:

"A resolution, rule, or formal action of any kind is

invalid unless adopted in an open meeting of the public body."

Relator contends that respondent violated R.C. 121.22 by

consulting with an attorney from the Secretary of State's

office, who advised rejection of her petition, but not

discussing that fact at the hearing of August 26, 1992, when it

rejected her petition. She further contends that the only

reason given at the August 26 meeting for rejecting her

petition was that she was not a qualified circulator.

The original minutes of the August 26 meeting state in

part:

"The petitioner was not a registered elector in Ashtabula

County. Chairman Vensel advised he had contacted Bob Taft,

Secretary of State, for legal direction. Legal Section

Attorney Sarah Bechenwald [sic] advised the Board that the

petition should be rejected due to 'non-qualified elector' and

'non-qualified circulator elector.' * * *"

Relator submits as evidence a handwritten addendum to the

August 26 official minutes, apparently written by respondent's

deputy director, which she states accurately describes the

August 26 meeting. The addendum states:

"Additions of comments made during general discussions of

board meeting of 8-26-92.

"During the general discussion of the petition for Katica

(Kathy) Markulin, Director Hornstien's [sic, Hornstein's]

reason for recommending that her petition be rejected was that

she was not a qualified elector in this county and that

therefore she could not be a qualified circulator of her

petitions. Therefore she did not have sufficient qualified

signatures to make her petition valid. He then cited various

sections of the O.R.C.

"Also during the general discussion and questions asked by

the petitioners it was brought out that [the] director and

deputy director had conferred with their local legal counsel

the county prosecutor for clarification of differing sections

of the O.R.C.

"Also it was brought out that the Chairman Arthur Vensel

had contacted the legal dept. of the Secretary of States [sic]

office, without specifically mentioning any name, and they had

recommended the [sic] these petition's [sic] i.e., Patricia M.

Walsh['s] and Kathy Markulin's be rejected for the reasons

cited in the O.R.C.

"8-27-92

"Ernie Fedor"

On September 8, 1992, respondent amended the minutes of

the August 26 meeting to state:

"A motion was made by Arthur Vensel to amend the minutes

to officially include the section on background information on

section referring to 'Legal Section Attorney Sarah Bechenwald

[sic], advised the Board that the petition should be rejected

due to non-qualified elector and non-qualified

circulator-elector.' * * *"

The handwritten addendum to the August 26 minutes, which

is the only evidence relator submits as to the alleged

violation of the open meetings law, states that respondent's

director recommended to respondent that relator was not a

qualified elector. If relator was not a qualified elector, she

would not have been an eligible candidate or circulator.

Moreover, both the official minutes of August 26 and the

handwritten addendum mention contact with the Secretary of

State's office. They differ only as to whether attorney

Rectenwald's name was specifically mentioned.

Thus, even relator's evidence raises the "qualified

elector" issue and gives some indication that the hearing of

August 26 included mention of contact with the Secretary of

State's legal advisor. Whether the August 26 meeting fully

explored both possible reasons why relator's petition was

ultimately rejected -- that is, "non-qualified elector" and

"non-qualified circulator elector" -- is uncertain, since there

is no transcript of that hearing in evidence.

R.C. 3501.05(B) requires the Secretary of State to

"[a]dvise members of such boards [of elections] as to the

proper methods of conducting elections[,]" and R.C. 3501.11(K)

requires boards of elections to "[r]eview, examine, and certify

the sufficiency and validity of petitions and nominating

papers[.]" Thus, respondent properly sought the advice of the

Secretary of State's office. Moreover, we have held that

boards may carry out their duties under R.C. 3501.11(K) sua

sponte, without notice or hearing to the candidate. Wiss v.

Cuyahoga Cty. Bd. of Elections (1980), 61 Ohio St.2d 298, 301,

15 O.O.3d 357, 359, 401 N.E.2d 445, 448; State ex rel. McGinley

v. Bliss (1948), 149 Ohio St. 329, 37 O.O. 21, 78 N.E.2d 715.

Accordingly, even if respondent did fail to fully explore all

the reasons for denying relator's petition at the August 26

meeting, relator was denied nothing she was entitled to.

Moreover, respondent granted relator a second hearing on her

petition at which she was given full latitude to discuss all

issues. Accordingly, we find on these facts no violation of

the open meetings law that invalidates respondent's action.

Qualified circulator

R.C. 3513.261 provides in part that the circulator of a

petition must declare "under penalty of election falsification

that he is a qualified elector of the state of Ohio and resides

at the address appearing below his signature [t]hereto[.]"

R.C. 3503.01 provides in part:

"Every citizen of the United States who is of the age of

eighteen years or over and who has been a resident of the state

thirty days next preceding the election at which he offers to

vote, is a resident of the county and precinct in which he

offers to vote, and has been registered to vote for thirty

days, has the qualifications of an elector and may vote at all

elections in the precinct in which he resides." See, also, In

re Protest Filed by Citizens for the Merit Selection of Judges,

Inc. (1990), 49 Ohio St.3d 102, 104, 551 N.E.2d 962, 150,

152-153.

The parties agree that relator has been registered to vote

in Cuyahoga County since 1986, and respondent does not dispute

relator's age, state residence, citizenship, or address on the

circulator's statement. Accordingly, it is clear that she is

an elector, which is all that is required to be a petition

circulator. Thus, to the extent that respondent invalidated

relator's petition for this reason, it erred by disregarding

the plain language of R.C. 3513.261.

Qualified elector-candidate

R.C. 3513.261 requires, in addition to being an elector,

that a candidate swear under penalty of election falsification

that he or she is "qualified to vote for the office he [or she]

seeks." Relator crossed out this part of her statement of

candidacy on her petitions, and she argues that it cannot

create a durational residency requirement for candidates. We

hold otherwise, and so find that respondent correctly rejected

relator's petition for this reason.

The Attorney General has held that R.C. 3513.261's

requirement that a candidate be qualified to vote for the

office he or she seeks requires a candidate for county court

judge to be an elector of the county court district involved.

1958 Ohio Atty.Gen.Ops. No. 2295. More recently, he has

reached the same conclusion with regard to all candidates for

county office. 1984 Ohio Atty.Gen.Ops. No. 84-025.

Relator relies on R.C. 1907.13, which states in part:

"A county court judge, during his term of office, shall be

a qualified elector and a resident of the county court district

in which he is elected or appointed."

She argues that R.C. 1907.13's requirement of residence

only during office tenure is a special provision that takes

precedence over R.C. 3513.261's general requirement of

residency in the district of the office sought, applicable to

all candidates. However, in order for this type of analysis to

be invoked, the two statutes must be irreconcilable. R.C.

1.51. A general residence requirement for all candidates is

not irreconcilable with a specific residence requirement for an

elected official during his or her term. The requirements are,

in fact, complementary.

Relator also argues that if R.C. 3513.261 does impose a

residence requirement, then it violates her constitutional

rights to seek public office, vote, freedom of expression,

freedom of association, right to trial, and right to equal

protection of the law, under the First and Fourteenth

Amendments of the United States Constitution.

In effect, R.C. 3513.261 and 3513.263 impose a

seventy-five day minimum residence requirement on candidates,

because the statement of candidacy and the nominating petitions

must be filed with the board of elections at least seventy-five

days before the general election, and the candidate must be

eligible to vote for the office he or she seeks at the time the

statement of candidacy is signed. To be able to sign the

statement truthfully, a candidate must be registered at an

address within the election district at the time the statement

is signed. See State ex rel. Walsh v. Ashtabula Cty. Bd. of

Elections (1992), 65 Ohio St.3d , N.E.2d .

Although a majority of the United States Supreme Court has

not stated whether courts should apply the "strict scrutiny"

test under the Fourteenth Amendment to durational residency

requirements involving a candidate, a four-member plurality has

stated that candidacy is not a "fundamental right," and has

also stated:

"A 'waiting period' is hardly a significant barrier to

candidacy. In Storer v. Brown [1974], 415 U.S. [724] at

733-737 [94 S.Ct. 1274, at 1281-1282, 39 L.Ed.2d 714, at

725-727], we upheld a statute that imposed a flat

disqualification upon any candidate seeking to run in a party

primary if he had been registered or affiliated with another

political party within the 12 months preceding his declaration

of candidacy. Similarly, we upheld a 7-year durational

residency requirement for candidacy in Chimento v. Stark, 414

U.S. 802 (1973), summarily aff'g 353 F.Supp. 1211 (NH). We

conclude that this sort of insignificant interference with

access to the ballot need only rest on a rational predicate in

order to survive a challenge under the Equal Protection

Clause. * * *" Clements v. Fashing (1982), 457 U.S. 957,

967-968, 102 S.Ct. 2836, 2846, 73 L.Ed.2d 508, 518-519.

In State ex rel. Brown v. Summit Cty. Bd. of Elections

(1989), 46 Ohio St.3d 166, 545 N.E.2d 1256, we upheld a

two-year durational residency requirement for city council

candidates, holding that the effects on the rights of travel

and association were so minimal that they did not invoke the

strict scrutiny test under the Fourteenth Amendment and

required only a rational basis. Citing Brown, relator further

argues that the policy reasons for imposing durational

residency requirements on council members do not apply to

judges, because the law is the same everywhere, whereas

legislative policy matters may differ, making familiarity with

local issues more important for council members. This argument

has some merit, but not enough to persuade us to declare

irrational a legislative requirement that would-be candidates

must reside among the citizens whose signatures they solicit to

become candidates.

Accordingly, we reject relator's arguments based on

constitutional and statutory construction and hold that at the

time of her signing her statement of candidacy, relator did not

comply with R.C. 3513.261's requirement that she be eligible to

vote for the office she seeks.

Corruption

Relator also argues that respondent's decision to reject

her petition was tainted by corruption. The corruption she

alleges is that respondent's legal advisor, the prosecuting

attorney, is a close personal friend of relator's opponent and

should have removed himself from the proceedings. She submits

no evidence, however, as to how this corrupted the hearings,

except evidence that an assistant prosecuting attorney

circulated petitions for the opponent. She also cites

respondent's refusal to stipulate certain facts, refusal to

answer questions at the hearings, and commingling of her

hearings and other protests as further evidence of corruption.

We do review actions of boards of elections in these cases

to discover "fraud, corruption, abuse of discretion, or a clear

disregard of statutes or applicable legal provisions * * *."

(Emphasis added.) State ex rel. Senn v. Cuyahoga Cty. Bd. of

Elections (1977), 51 Ohio St.2d 173, 175, 5 O.O.3d 381, 382,

367 N.E.2d 879, 880. But corruption, like the other acts

mentioned, must result in some unlawful or unconscionable

result before a relator has the clear right to relief required

for a writ of mandamus to issue. Here, neither relator's

evidence nor her arguments persuade us that respondent was

guilty of corruption. Moreover, in any case, its deliberations

did not result in an unlawful rejection of relator's petition,

but a lawful one. She was not eligible to vote for the office

she seeks when she signed the petition, and her petition was

subject to rejection on those grounds. On the same grounds, we

deny her request for a writ of mandamus.

Writ denied.

Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown

and Resnick, JJ., concur.

* Reporter's Note: A writ of mandamus was denied in this

cause on October 22, 1992, "consistent with the opinion to

follow." See 65 Ohio St.3d 1438, 600 N.E.2d 681. The "opinion

to follow" is announced today.