The opinion
[This decision has been published in Ohio Official Reports at 174 Ohio St.3d 445.]
THE STATE EX REL. PETERSON v. LICKING COUNTY BOARD OF ELECTIONS
ET AL .
[Cite as State ex rel. Peterson v. Licking Cty. Bd. of Elections, 2024-Ohio-646.]
Elections—Prohibition—Mandamus—Disqualification of counsel—Relator, a
village mayor, failed to show that she was entitled to writ of prohibition
preventing respondent village from setting date for recall election or
preventing respondent boards of elections from conducting that election—
Relator failed to show that she was entitled to writ of mandamus ordering
respondent boards of elections to remove recall election from ballot—Writs
denied—Relator’s motion to disqualify counsel for respondent village
denied.
(No. 2024-0155—Submitted February 15, 2024—Decided February 21, 2024.)
IN PROHIBITION and MANDAMUS.
__________________
Per Curiam.
{¶ 1} In this expedited election case, relator, Jeryne Peterson, seeks writs of
prohibition and mandamus against respondents, the Licking County Board of
Elections and its members, the Fairfield County Board of Elections and its
members, and the village of Buckeye Lake and its council president, Linda
Goodman.1 Peterson is the mayor of Buckeye Lake. Buckeye Lake has scheduled
a special election for February 27, 2024, for a vote on the recall of Peterson. She
1. The individual members of the Licking County Board of Elections are Freddie Latella, Dave
Rhodes, Kaye Hartman, and Park Shai. The individual members of the Fairfield County Board of
Elections are Angela D. White, Michael Oatney, Kyle Joseph Farmer, and Paul R. Johnson. In this
opinion, “Licking County Board of Elections” refers to both that board and its members, and
“Fairfield County Board of Elections” refers to both that board and its members.
SUPREME COURT OF OHIO
seeks a writ of prohibition preventing the village and the boards of elections from
setting the recall-election date and from conducting the recall election on that date.
She also seeks a writ of mandamus ordering the boards of elections to remove the
recall election from the February 27 ballot. We deny the writs.
I. FACTUAL, PROCEDURAL, AND LEGAL BACKGROUND
{¶ 2} Buckeye Lake is a village located primarily in Licking County, with
a small portion located in Fairfield County. Buckeye Lake has adopted a charter,
which provides that its elected officials may be recalled. See Buckeye Lake Village
Charter, Section 10.02. The recall procedure generally provides that electors of the
village may submit a petition to the clerk of the village council demanding the
removal of an elected official. Id. at Section 10.02(b). The petition must contain
the signatures of at least 15 percent of the village’s registered voters at the time of
the last general election. Id. Upon submission of the petition to the clerk of council,
the clerk must determine whether the petition contains sufficient valid signatures.
Id. at Section 10.02(c). If the petition does not contain sufficient valid signatures,
the petitioner is allowed ten days to obtain them. Id. If the clerk certifies that the
petition contains sufficient valid signatures—either initially or after the ten-day
period for curing an insufficient petition—the village council must schedule a recall
election to occur between 40 and 65 days after the date of the clerk’s certification
of the petition’s sufficiency to the council. Id. at Section 10.02(c) and (d).
{¶ 3} Peterson, the current mayor of Buckeye Lake, was elected to that
office in November 2021 for a four-year term. On November 13, 2023, an elector
of Buckeye Lake filed with the clerk of council a notice of intent to circulate
petitions for the recall of Peterson. On December 11, an elector filed with the clerk
part-petitions demanding the recall of Peterson. The clerk then delivered the part-
petitions to the Licking County Board of Elections for signature verification. The
clerk did not deliver any part-petitions to the Fairfield County Board of Elections,
because none of the signatures appeared to be of Fairfield County residents.
2
January Term, 2024
{¶ 4} On December 18, the Licking County Board of Elections notified the
clerk of council of the number of signatures that the board had determined were
valid. On December 20, the clerk notified the petitioner that the recall petition did
not contain a sufficient number of valid signatures. On January 2, 2024, the
petitioner submitted to the clerk of council additional part-petitions containing
additional signatures. The clerk forwarded those part-petitions to the Licking
County Board of Elections for signature verification, and on January 5, the Licking
County Board of Elections notified the clerk of the new number of signatures that
the board had determined were valid.
{¶ 5} Also on January 5, the clerk of council sent a “Certificate of Sufficient
Recall Petitions” to the village council, in which the clerk notified the council that
she had determined that the recall petition was sufficient and contained elector
signatures totaling at least 15 percent of the number of the village’s registered
voters at the time of the last general election. On January 8, the village council
passed an ordinance setting the recall election for February 27. By its terms, the
ordinance would be effective only if Peterson did not resign by January 12. On
January 12, the clerk of council found that Peterson had not resigned, and the clerk
sent the ordinance to the Licking County Board of Elections.
{¶ 6} The Licking County Board of Elections then began the process of
conducting the special recall election. Because only 12 registered voters who
would be eligible to vote in the recall election then resided in Fairfield County, the
Fairfield County Board of Elections assigned those voters to Licking County for
purposes of the recall election. See R.C. 3503.01(B) (allowing a county board of
elections to assign voters residing in a portion of a precinct within that county to an
adjoining county for purposes of a special election). On January 30, absentee
ballots were sent out and early voting began.
{¶ 7} On February 1, Peterson filed her verified complaint for writs of
mandamus and prohibition in this court. She seeks a writ of prohibition preventing
3
SUPREME COURT OF OHIO
the village and the boards of elections from setting the recall-election date and from
conducting the recall election on that date. She also seeks a writ of mandamus
ordering the boards of elections to remove the recall election from the February 27
ballot. She generally argues that the clerk of council did not perform her duty to
determine the sufficiency of the petition, because the Licking County Board of
Elections actually verified the petition signatures. She also argues that the recall
petitioner took more than ten days to file additional signatures after the clerk of
council initially determined that the number of signatures was insufficient, in
violation of the village’s charter.
II. ANALYSIS
A. Motion to disqualify the village’s attorney
{¶ 8} As an initial matter, Peterson filed a motion asking this court to
disqualify the village’s attorney in this matter—Bradley Nicodemus—from
representing the village due to a conflict of interest. We deny the motion.
{¶ 9} Nicodemus serves as Buckeye Lake’s village solicitor pursuant to a
contract authorized under Buckeye Lake’s charter. The charter provides, “Prior to
the creation of a Department of Law, the Mayor shall appoint, pursuant to a contract
with an individual attorney or law firm, and the Council shall confirm, by a majority
vote, such person or firm as legal advisor.” Buckeye Lake Village Charter,
Section 6.06(a). “The Solicitor or the attorney or law firm engaged * * * shall be
the legal advisor, prosecuting attorney and counsel for the Village, and subject to
the direction of Council, shall represent the Village in all proceedings in Court or
before any administrative board or body.” Id. at Section 6.06(c). The village
contracted with Nicodemus for him to serve as the village’s solicitor.
{¶ 10} As a general matter, an attorney may not represent a client if that
representation will be directly adverse to another client or there is a substantial risk
that the attorney’s ability to represent the client will be materially limited by the
attorney’s responsibilities to another client, a former client, a third person, or the
4
January Term, 2024
attorney’s personal interests. Prof.Cond.R. 1.7(a). A court has inherent authority
to supervise attorneys appearing before it, which “necessarily includes the power
to disqualify counsel in specific cases.” Morgan v. N. Coast Cable Co., 63 Ohio
St.3d 156, 161, 586 N.E.2d 88 (1992). But “[t]ypically, courts do not disqualify an
attorney on the grounds of conflict of interest unless there is (or was) an attorney-
client relationship between the party seeking disqualification and the attorney the
party seeks to disqualify.” Id. at 159.
{¶ 11} The village itself, not any individual officer or employee of the
village, is Nicodemus’s client. See Buckeye Lake Village Charter, Section 6.06(c)
(the solicitor “shall be the legal advisor, prosecuting attorney and counsel for the
Village” [emphasis added]); see also Prof.Cond.R. 1.13(a) (“A lawyer employed or
retained by an organization represents the organization acting through its
constituents. A lawyer employed or retained by an organization owes allegiance to
the organization and not to any constituent or other person connected with the
organization”). The village solicitor’s duties to the village may at times put him at
odds with the village’s mayor, but that does not mean that the solicitor is conflicted
from representing the village in such instances. For example, the solicitor may
bring a mandamus action against the mayor to compel the mayor to perform her
duties. R.C. 733.58; see also Buckeye Lake Village Charter, Section 6.06(c) (the
solicitor “shall perform all other powers, duties and functions now or hereafter
imposed on Village Solicitors under the laws of Ohio”). Nicodemus is representing
the village and its council president (in her official capacity) in this case, and
Peterson points to no authority suggesting that Nicodemus is conflicted from
defending them in a lawsuit brought by Peterson in her personal capacity.
{¶ 12} Peterson also claims that Nicodemus disclosed attorney-client-
privileged information at a public village-council meeting in September 2023. But
the information allegedly disclosed did not relate to the recall election or to this
case, and Nicodemus denies that he disclosed any privileged information. Even if
5
SUPREME COURT OF OHIO
Nicodemus did disclose privileged information, Peterson has not explained how
such a disclosure created a conflict of interest that necessitates Nicodemus’s
disqualification from this case, nor has she explained how his representation of the
village interferes with her ability to obtain the writs she requests in this case.
{¶ 13} In addition, Peterson argues that Nicodemus should be disqualified
because, in her view, he is no longer the village solicitor. Although Peterson
misclassifies this issue as one involving a conflict of interest, she is correct that as
a general matter, an attorney may not represent a client if the attorney has been
discharged. See Prof.Cond.R. 1.16(a)(3).
{¶ 14} The root of this argument lies in a dispute among Nicodemus,
Peterson, and the village council. On January 8, Peterson, in her role as mayor of
the village, sent Nicodemus a letter informing him that she was terminating him as
village solicitor. Nicodemus responded, stating that Peterson’s attempt to terminate
him as village solicitor violated his contract to represent the village, that only the
village council could terminate that contract, and that he remained the village
solicitor.
{¶ 15} A client of an attorney has an absolute right to discharge the attorney
at any time, subject to the obligation to compensate the attorney for services
rendered. Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio
St.3d 570, 629 N.E.2d 431 (1994), paragraph one of the syllabus. But the village,
not Peterson, is Nicodemus’s client, and the village has not filed any notice that it
has discharged Nicodemus or substituted counsel. Peterson provides no authority
supporting her argument that a court may grant a party’s motion to disqualify a
different party’s attorney based on an alleged discharge of the attorney. Further,
Peterson has not submitted a copy of Nicodemus’s contract with the village or any
other evidence enabling us to evaluate her argument that the village’s mayor may
unilaterally discharge a village solicitor like Nicodemus without the approval of the
village council. See Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124 Ohio St.3d
6
January Term, 2024
284, 2009-Ohio-6764, 921 N.E.2d 1038, ¶ 39-40 (holding that a party’s failure to
submit a contract as evidence was fatal to its claim based on the contract).
{¶ 16} For these reasons, we deny Peterson’s motion to disqualify
Nicodemus.
B. Service
{¶ 17} The Licking County Board of Elections alleges that Peterson did not
properly serve it with a copy of her complaint; it alleges that Peterson sent the
complaint to the wrong email address. The board argues that the complaint should
thus be dismissed because Peterson did not serve the complaint in accordance with
S.Ct.Prac.R. 12.08(C), which provides that “[a]ll documents in expedited election
cases, except those filed to initiate a case under this rule, shall be served on the date
submitted for filing by personal service, facsimile transmission, or email”
(emphasis added). The board does not provide any evidence in support of its
allegation that Peterson sent the complaint to the wrong email address. But even if
she did send it to the wrong email address, the complaint was the document she
filed to initiate this case, so S.Ct.Prac.R. 12.08(C) is inapplicable. We reject the
board’s request to dismiss the complaint for failure of service.
C. Prohibition
{¶ 18} Peterson seeks a writ of prohibition “preventing the Licking County
and Fairfield County Boards of Election[s] from holding [the] recall election.” To
be entitled to a writ of prohibition, Peterson must prove by clear and convincing
evidence that (1) respondents exercised or are exercising quasi-judicial power,
(2) the exercise of that power was or is unlawful, and (3) she lacks an adequate
remedy in the ordinary course of the law. State ex rel. Federle v. Warren Cty. Bd.
of Elections, 156 Ohio St.3d 322, 2019-Ohio-849, 126 N.E.3d 1091, ¶ 10.
{¶ 19} Neither the Licking County Board of Elections nor the Fairfield
County Board of Elections has exercised quasi-judicial authority in this matter. “A
board of elections exercises quasi-judicial authority when it decides a protest after
7
SUPREME COURT OF OHIO
a mandatory hearing that includes sworn testimony.” State ex rel. Moscow v.
Clermont Cty. Bd. of Elections, 169 Ohio St.3d 161, 2022-Ohio-3138, 202 N.E.3d
684, ¶ 15. And “extraordinary relief in prohibition is not available when there is
no statute or other law requiring a board of elections to conduct a quasi-judicial
hearing on a protest.” State ex rel. Fritz v. Trumbull Cty. Bd. of Elections, 165 Ohio
St.3d 323, 2021-Ohio-1828, 179 N.E.3d 67, ¶ 10. Here, Peterson did not file an
election protest, and neither of the boards of elections conducted a quasi-judicial
hearing. Nor does Peterson point to any authority that would have allowed her to
file a protest or would have required the boards to hold a quasi-judicial hearing.
See State ex rel. King v. Cuyahoga Cty. Bd. of Elections, 174 Ohio St.3d 43, 2023-
Ohio-3668, 233 N.E.3d 602, ¶ 21-22 (a board of elections does not exercise quasi-
judicial authority when it holds a recall election for which no election protest was
filed); State ex rel. Wright v. Cuyahoga Cty. Bd. of Elections, 120 Ohio St.3d 92,
2008-Ohio-5553, 896 N.E.2d 706, ¶ 9 (board of elections did not exercise quasi-
judicial authority in placing a city-charter amendment on the ballot, and no legal
authority required the board to conduct a quasi-judicial hearing on protest
challenging the ordinance submitting the amendment issue to the electorate; case
did not involve written protest against petitions or candidacies, which would have
required quasi-judicial proceedings).
{¶ 20} Peterson also seeks a writ of prohibition against the village and its
council president. Specifically, she seeks a writ “preventing [them] from setting a
day for holding a recall election until the requirements of the Village Charter are
met.” But like the boards of elections, the village and its council have not exercised
quasi-judicial authority in this matter.
{¶ 21} “Quasi-judicial authority” refers to the “power to hear and determine
controversies between the public and individuals that require a hearing resembling
a judicial trial.” State ex rel. Wright v. Registrar, Ohio Bur. of Motor Vehicles, 87
Ohio St.3d 184, 186, 718 N.E.2d 908 (1999). “When a public entity takes official
8
January Term, 2024
action but does not conduct proceedings akin to a judicial trial, prohibition will not
issue.” State ex rel. Save Your Courthouse Commt. v. Medina, 157 Ohio St.3d 423,
2019-Ohio-3737, 137 N.E.3d 1118, ¶ 27. Here, although the village and its clerk
determined the sufficiency of the petition and set a date for the recall election, they
“did not receive evidence, place witnesses under oath, or take any other actions that
qualify as judicial,” id. at ¶ 28. It follows that they did not exercise quasi-judicial
authority. Accordingly, prohibition will not lie.
D. Mandamus
{¶ 22} Peterson also requests a writ of mandamus ordering the boards of
elections “to remove the special recall election from the February 27, 2024, ballot.”
To be entitled to a writ of mandamus, Peterson must establish by clear and
convincing evidence (1) a clear legal right to the relief requested, (2) a clear legal
duty on the part of the boards of elections to provide that relief, and (3) the lack of
an adequate remedy in the ordinary course of the law. State ex rel. Clark v.
Twinsburg, 169 Ohio St.3d 380, 2022-Ohio-3089, 205 N.E.3d 454, ¶ 16.
{¶ 23} Peterson cannot show that she has a clear legal right to an order
requiring the boards of elections to remove the recall election from the ballot.
Peterson’s argument is premised on the belief that the recall petition and the
village’s ordinance setting the recall election were invalid. But the determination
whether the recall petition was sufficient was properly made by the clerk of
council—not the boards of elections. See Buckeye Lake Village Charter,
Section 10.02(c) (“Within ten days after the day on which such [a recall] petition is
filed, the Clerk of Council shall determine whether or not it meets the requirements
[of this charter]. * * * If the Clerk of Council finds the petition to be sufficient, the
Clerk shall, within five days, certify that fact to council”). No provision of either
the village’s charter or the Revised Code allowed the boards of elections to make
that determination.
9
SUPREME COURT OF OHIO
{¶ 24} To be sure, R.C. 3501.39(A) requires a board of elections to reject a
petition described in R.C. 3501.38 if the petition violates certain requirements
established by law. See R.C. 3501.39(A)(4). But here, the Licking County Board
of Elections was not presented with a petition pursuant to a statute requiring the
board’s review of the petition. Rather, the board was presented with an ordinance
passed by the village setting a special election. Such an ordinance is not a petition
described in R.C. 3501.38. See State ex rel. King v. Cuyahoga Cty. Bd. of Elections,
174 Ohio St.3d 103, 2023-Ohio-3959, 234 N.E.3d 410, ¶ 19-20; see also Wright,
120 Ohio St.3d 92, 2008-Ohio-5553, 896 N.E.2d 706, at ¶ 9 (city ordinance
providing for the submission of a proposed charter amendment to the electorate was
not a petition under R.C. 3501.39(A)). Therefore, the boards of elections had no
duty to reject the recall-election-certification ordinance. Rather, the duty of the
boards of elections upon receiving the ordinance was to hold the special election.
See King at ¶ 20. Thus, mandamus does not lie to order the boards of elections to
remove the recall election from the ballot.
{¶ 25} Given our holdings in this matter, we need not decide whether the
recall petitioner timely submitted the part-petitions or whether the clerk of council
complied with her duties regarding determining the sufficiency of the petition. We
also need not decide respondents’ laches argument. See id. at ¶ 24.
III. CONCLUSION
{¶ 26} Peterson has not shown that she is entitled to a writ of prohibition
preventing the village from setting a date for the recall election or preventing the
boards of elections from conducting the recall election. Nor has she shown that she
is entitled to a writ of mandamus ordering the boards of elections to remove the
recall election from the ballot. We therefore deny Peterson’s request for writs of
prohibition and mandamus. We also deny her motion to disqualify the village’s
counsel.
Writs denied.
10
January Term, 2024
KENNEDY, C.J., and DEWINE, DONNELLY, STEWART, BRUNNER, and
DETERS, JJ., concur.
FISCHER, J., concurs in judgment only.
_________________
The Behal Law Group, L.L.C., and John M. Gonzales, for relator.
Jenny Wells, Licking County Prosecuting Attorney, and Joshua M. Kunkel,
Assistant Prosecuting Attorney, for respondents Licking County Board of
Elections, Freddie Latella, Dave Rhodes, Kaye Hartman, and Park Shai.
R. Kyle Witt, Fairfield County Prosecuting Attorney, and Amy Brown
Thompson, Assistant Prosecuting Attorney, for respondents Fairfield County Board
of Elections, Angela D. White, Michael Oatney, Kyle Joseph Farmer, and Paul R.
Johnson.
The Nicodemus Law Office, L.P.A., and Bradley S. Nicodemus, for
respondents village of Buckeye Lake and Linda Goodman.
_________________
11