# State ex rel. Schreiner v. Erie Cty. Bd. of Elections

> Ohio Supreme Court · January 29, 2024 · 174 Ohio St. 3d 555

URL: https://www.frixlaw.com/law-library/cases/11147707

## Case

- **Court:** Ohio Supreme Court
- **Decided:** January 29, 2024
- **Citations:** 174 Ohio St. 3d 555; 2024 Ohio 290
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

This decision has been published in Ohio Official Reports at 174 Ohio St.3d 555.

THE STATE EX REL. SCHREINER v. ERIE COUNTY BOARD OF ELECTIONS
ET AL .

[Cite as State ex rel. Schreiner v. Erie Cty. Bd. of Elections, 2024-Ohio-290.]
Elections—Prohibition—R.C. 2961.02—Writ sought to compel board of elections
to remove candidate for Ohio House of Representatives from primary-
election ballot—A person is incompetent to hold a public office under R.C.
2961.02 if (1) the person was convicted of a disqualifying offense, (2) the
public office “involves substantial management or control over the property
of a state agency, political subdivision, or private entity,” and (3) the
person’s conviction has not been expunged, reversed, annulled, or
pardoned—Office of state representative does not involve substantial
management or control over property of a state agency, political
subdivision, or private entity—Board of elections did not abuse its
discretion or act in clear disregard of applicable law in keeping candidate
for Ohio House of Representatives on primary-election ballot—Writ denied.
(No. 2024-0052—Submitted January 24, 2024—Decided January 29, 2024.)
IN PROHIBITION.
__________________
Per Curiam.
{¶ 1} In this expedited election case, relator, Dennis Schreiner, seeks a writ
of prohibition against respondents, the Erie County Board of Elections and its
members, Thomas Ferrell, Maryann Groot, Lisa Crescimano, and Nancy McKeen.
Schreiner seeks a writ ordering the board of elections to remove Steven Kraus, a
candidate for the Ohio House of Representatives, from the March 2024 primary-
election ballot. Because Schreiner has not shown that the office of state
representative involves substantial management or control over the property of a
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state agency, political subdivision, or private entity, see R.C. 2961.02(B), we deny
the writ.
I. FACTUAL, PROCEDURAL, AND LEGAL BACKGROUND
{¶ 2} Kraus is a Republican candidate in the March 2024 primary election
for the office of state representative for the 89th Ohio House District. In 2015,
Kraus was convicted in the Ottawa County Court of Common Pleas of theft from
an elderly person in violation of R.C. 2913.02, a felony of the fifth degree. He was
sentenced to two years of community control and ordered to pay a $2,500 fine.
Kraus successfully completed all requirements of his community control, and his
community control was terminated in 2018. In 2022, the common pleas court
conducted a hearing on a motion filed by Kraus to seal the record of his conviction
under R.C. 2953.32. The common pleas court granted the motion on January 23,
2023, and determined that Kraus was entitled “to have his record sealed in [his]
case, including any records of his arrest.”
{¶ 3} On or about December 19, 2023, Kraus filed his declaration of
candidacy with the board of elections to run for state representative. As part of his
declaration, Kraus declared, “[I]f elected to said office or position, I will qualify
therefor.” See R.C. 3513.07. On December 27, Schreiner filed a written protest
against Kraus’s candidacy with the board of elections in accordance with R.C.
3513.05. Schreiner is a registered-Republican voter living in Erie County within
the 89th Ohio House District. In his protest, Schreiner argued that Kraus’s
declaration was invalid because Kraus was not qualified to hold office under R.C.
2961.02(B) due to his conviction of a “disqualifying offense.”
{¶ 4} The board of elections held a hearing on the protest on January 5,
2024. At the hearing, Kraus stipulated that he had been convicted of a disqualifying
offense for purposes of R.C. 2961.02 but argued that he was eligible to hold office
because his conviction had been expunged. Schreiner argued that Kraus’s
conviction had been sealed, which he contended was not equivalent to being

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expunged. At the conclusion of the hearing, the members of the board of elections
voted unanimously to deny Schreiner’s protest, thus allowing Kraus to remain on
the March 2024 primary-election ballot.
{¶ 5} On January 10, Schreiner filed this verified petition for a writ of
prohibition. He seeks a writ ordering the board of elections to remove Kraus from
the ballot in the March 2024 primary election. Kraus filed a motion to intervene as
a respondent, which we granted. 172 Ohio St.3d 1449, 2024-Ohio-156, 225 N.E.3d
999.
II. ANALYSIS
A. Legal standards
{¶ 6} Prohibition is an appropriate remedy to challenge a board of elections’
decision to place a candidate on the ballot. State ex rel. Emhoff v. Medina Cty. Bd.
of Elections, 153 Ohio St.3d 313, 2018-Ohio-1660, 106 N.E.3d 21, ¶ 13. To be
entitled to a writ of prohibition, Schreiner must prove by clear and convincing
evidence that (1) the board of elections exercised quasi-judicial power, (2) the
exercise of that power was unlawful, and (3) he 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. “A board of elections
exercises quasi-judicial authority when it decides a protest after 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. Here,
the board of elections was required to and did hold a hearing on Schreiner’s protest,
see R.C. 3513.05, and it heard sworn testimony at the hearing. In addition, given
the proximity of the March 2024 primary election, Schreiner lacks an adequate
remedy in the ordinary course of the law. See State ex rel. Finkbeiner v. Lucas Cty.
Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18-19.
{¶ 7} The remaining question is whether the board of elections acted
unlawfully when it denied Schreiner’s protest. A board of elections’ exercise of

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judicial or quasi-judicial power “is unauthorized if it engaged in fraud, corruption,
abuse of discretion, or clear disregard of statutes or applicable legal provisions.”
State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 72 Ohio St.3d 69, 72,
647 N.E.2d 769 (1995). Schreiner does not argue that the board engaged in fraud
or corruption. He instead argues that the board of elections abused its discretion
and acted in clear disregard of statutes or applicable legal provisions.
B. R.C. 2961.02: The disqualification statute
{¶ 8} The core issues in this case involve the interpretation of R.C. 2961.02,
which this opinion calls the “disqualification statute.” R.C. 2961.02 was first
enacted in 2005. See Sub.H.B. No. 181, 150 Ohio Laws, Part IV, 6185, 6214-6215.
It was last revised in 2008. See 2008 Sub.H.B. No. 195.
{¶ 9} R.C. 2961.02(A) defines various terms, including a “disqualifying
offense.” R.C. 2961.02(B) and (C) then provide:

(B) Any person who pleads guilty to a disqualifying offense
and whose plea is accepted by the court or any person against whom
a verdict or finding of guilt for committing a disqualifying offense
is returned is incompetent to hold a public office or position of
public employment or to serve as a volunteer, if holding the public
office or position of public employment or serving as the volunteer
involves substantial management or control over the property of a
state agency, political subdivision, or private entity.
(C) Division (B) of this section does not apply if a plea,
verdict, or finding of the type described in that division regarding a
disqualifying offense is reversed, expunged, or annulled. The full
pardon of a person who has pleaded guilty to a disqualifying offense
and whose plea was accepted by the court or a person against whom
a verdict or finding of guilt for committing a disqualifying offense

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January Term, 2024

was returned restores the privileges forfeited under division (B) of
this section, but the pardon does not release the person from the costs
of the person’s conviction in this state, unless so specified.

Thus, in accordance with the disqualification statute, a person is incompetent to
hold a public office if (1) the person was convicted of a disqualifying offense, (2)
the public office “involves substantial management or control over the property of
a state agency, political subdivision, or private entity,” and (3) the person’s
conviction has not been expunged, reversed, annulled, or pardoned.
{¶ 10} Here, the parties agree that Kraus’s 2015 felony-theft conviction for
violating R.C. 2913.02 is a disqualifying offense. See R.C. 2961.02(A)(5) (“theft
offense” in the disqualification statute has the same meaning as in R.C. 2913.01)
and 2913.01(K)(1) (“theft offense” includes a violation of R.C. 2913.02). Kraus
argues, however, that the office of state representative does not involve substantial
management or control over the property of a state agency, political subdivision, or
private entity. Kraus and the board of elections also argue that Kraus’s conviction
was expunged within the meaning of R.C. 2961.02(C). Kraus further argues that
applying the disqualification statute to remove him from the ballot would be
unconstitutional.
C. Substantial management or control
{¶ 11} Kraus argues that the disqualification statute does not disqualify him
from serving as a state representative, because the position does not “involv[e]
substantial management or control over the property of a state agency, political
subdivision, or private entity” as required by R.C. 2961.02(B). We agree.
{¶ 12} The disqualification statute does not define the phrase “substantial
management or control,” nor has any case decided what the phrase means. Thus,
the ordinary definition of the terms the General Assembly used at the time of
enactment should be used to guide our determination of legislative intent. Rockies

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Express Pipeline, L.L.C. v. McClain, 159 Ohio St.3d 302, 2020-Ohio-410, 150
N.E.3d 895, ¶ 12. A contemporary edition of Webster’s New World College
Dictionary (4th Ed.1999) defined “substantial” as “considerable; ample; large,” id.
at 1428, “manage” as “to have charge of; direct; administer,” id. at 871, and
“control” as “to exercise authority over; direct; command,” id. at 317. Similarly,
The American Heritage Dictionary of the English Language (4th Ed.2000) defined
“substantial” as “[c]onsiderable in importance, value, degree, amount, or extent,”
id. at 1727, “manage” as “[t]o direct the affairs or interests of,” id. at 1061, and
“control” as “[a]uthority or ability to manage or direct,” id. at 400.
{¶ 13} Applying these terms, we determined that a state representative has
no direct management or control over the property of any state agency, political
subdivision, or private entity. Rather, the directors of a state agency, political
subdivision, or private entity manage and control the property. See, e.g., R.C.
121.07(A) (state-department offices and divisions “shall be under the direction,
supervision, and control of the directors of their respective departments”).
{¶ 14} Schreiner argues that the General Assembly manages and controls
state agencies through the budgeting process and general legislative oversight of
state agencies. But such oversight is not the equivalent of directing or
administering a state agency in the usual sense. And even if such oversight is
considered substantial management or control, the General Assembly acts as a
whole in exercising such authority, and each state representative is only 1 of 99
members of one chamber of the assembly. Schreiner has not established that acting
alone, a single state representative exercises substantial management or control
over a state agency’s property.
{¶ 15} Schreiner also argues that the disqualification statute applies here
because a state representative has control over office space and must manage
legislative assistants. The General Assembly is not explicitly included in the
disqualification statute’s definition of a state agency. See R.C. 2961.02(A)(4)

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January Term, 2024

(defining “state agency” as having the same meaning as in R.C. 1.60, which defines
“state agency” as “every organized body, office, or agency established by the laws
of the state for the exercise of any function of state government”). But even if a
state representative’s office space is considered part of a state agency, Schreiner
has the burden of proof, see Federle, 156 Ohio St.3d 322, 2019-Ohio-849, 126
N.E.3d 1091, at ¶ 10, and Schreiner presents no evidence, much less clear and
convincing evidence, regarding how much property a state representative
individually controls or to what extent he or she controls that property. Every
public office or position of public employment involves control over some minimal
amount of property—even if just a pen and paper. But the disqualifying statute
speaks to “the property” (emphasis added) of a state agency, not negligible
components of it, and requires “substantial”—i.e., considerable or large—
management or control over the property.
{¶ 16} In addition to the plain language of R.C. 2961.02, a different statute
sheds light on this distinction. R.C. 2921.41(C)(1) provides that a “public official
or party official who pleads guilty to theft in office and whose plea is accepted by
the court or a public official or party official against whom a verdict or finding of
guilt for committing theft in office is returned is forever disqualified from holding
any public office, employment, or position of trust in this state.” Thus, if a person
is convicted of theft in office (a violation of R.C. 2921.41), he or she is prohibited
from holding any public office, while persons convicted of other specified theft
offenses are prohibited from public offices or employment only if the position
involves substantial management or control over the property of a state agency,
political subdivision, or private entity, R.C. 2961.02(B). And Schreiner has not
shown by clear and convincing evidence that the office of state representative
involves such management or control.
{¶ 17} Because Schreiner has not shown that the office of state
representative involves substantial management or control over the property of a

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state agency, political subdivision, or private entity, see id., he has not established
that the board of elections abused its discretion or acted in clear disregard of statutes
or applicable legal provisions when it denied his protest, see Youngstown, 72 Ohio
St.3d at 72, 647 N.E.2d 769. He is thus not entitled to a writ of prohibition.
{¶ 18} Because we deny the writ on this ground, we need not address
whether a sealed conviction is the equivalent of an expunged conviction for
purposes of the disqualification statute. We also do not need to address Kraus’s
constitutional arguments.
III. CONCLUSION
{¶ 19} The board of elections did not abuse its discretion or act in clear
disregard of applicable law when it denied Schreiner’s protest and kept Kraus on
the March 2024 primary-election ballot. We therefore deny Schreiner’s petition for
a writ of prohibition.
Writ denied.
FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.,
concur.
KENNEDY, C.J., concurs in judgment only.
_________________
Baker & Hostetler, L.L.P., and Taylor M. Thompson, for relator.
Kevin J. Baxter, Erie County Prosecuting Attorney, and Gerhard R. Gross
and Jason R. Hinners, Assistant Prosecuting Attorneys, for respondents.
Mayle, L.L.C., Andrew R. Mayle, Benjamin G. Padanilam, and Nichole
Kanios Papageorgiou, for intervening respondent.
_________________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11147707. Public record. Not legal advice.