State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections

[This opinion has been published in Ohio Official Reports at 80 Ohio St.3d 302.]

THE STATE EX REL. COOKER RESTAURANT CORPORATION ET AL. v.

MONTGOMERY COUNTY BOARD OF ELECTIONS ET AL.

[Cite as State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of

Elections, 1997-Ohio-315.]

Elections—Prohibition—Attorneys—Protest to local liquor option petitions filed by

nonattorney properly dismissed—R.C. 3501.39(A)(1) requires that

objections be specified in the protest—Board of elections does not abuse its

discretion in limiting scope of protest hearing to specific objections raised

in written protest—Liquor permit holders have no due process right to

notice of impending local option election—Writ denied.

(No. 97-2001—Submitted October 20, 1997—Decided October 24, 1997.)

IN PROHIBITION.

__________________

{¶ 1} Intervening respondent, Sphere Investments, Ltd. (“Sphere”), owns a

shopping center located in Precinct W of Washington Township in Montgomery

County, Ohio. One of Sphere’s shopping center tenants is a liquor permit holder

that operates a nightclub named Diamond’s. Sphere hired Hans H. Soltau, an

attorney, to prepare and file local liquor option petitions for a residence district

consisting of Precincts Q and W of Washington Township.

{¶ 2} Pursuant to R.C. 4301.33 and 4305.14, the Division of Liquor Control

of the Ohio Department of Commerce provided Soltau with a list of the names and

addresses of liquor permit holders in the residence district who would be affected

by the election. The list included relators Cooker Restaurant Corporation

(“Cooker”), which operates a Cooker restaurant, and Brinker Ohio, Inc.

(“Brinker”). The list, however, specified only Brinker’s Cozymel’s Mexican Grill

and Chili’s Grill & Bar restaurants and did not include its Romano’s Macaroni Grill

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restaurant, even though all of these restaurants are located in the same vicinity in

the residence district. Soltau was not aware of the omission when he received the

list from the Division of Liquor Control.

{¶ 3} On June 3, 1997, Soltau mailed notices to each of the permit holders

specified on the list provided by the Division of Liquor Control. Soltau informed

the permit holders that he was circulating local liquor option petitions concerning

Precincts Q and W in Washington Township. Cooker and Brinker received the

notices, although Brinker did not receive specific notice concerning its Romano’s

Macaroni Grill restaurant.

{¶ 4} On June 6, Soltau filed two local option petitions for the residence

district with respondent, Montgomery County Board of Elections. Both petitions

contained the same affidavit of Soltau certifying that he had notified all affected

permit holders on the list supplied by the Division of Liquor Control in the manner

and time required by R.C. 4301.33 and 4305.14 and that at the time every person

signed the petition, each part-petition contained a copy of the list of affected permit

holders provided by the Division of Liquor Control.

{¶ 5} Soltau’s petitions sought placement of the following liquor option

questions on the November 4 election ballot in Precincts Q and W of Washington

Township:

1. “Shall the sale of wine, and mixed beverages by the package, under

permits which authorize sale for on-premises consumption only, and under permits

which authorize sale for both on-premise and off-premise consumption, be

permitted in WASHINGTON TWP. PRECINCTS Q AND W?”

2. “Shall the sale of spirituous liquors by the glass be permitted in

WASHINGTON TWP. PRECINCTS Q & W?”

3. “Shall the sale [of] beer as defined in Section 4305.08 of the Revised

Code under permits which authorize sale for on-premises consumption only, and

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under permits which authorize sale for both on-premises and off-premises

consumption, be permitted in WASHINGTON TWP. PRECINCTS Q & W?”

{¶ 6} The board determined that the petitions contained more than the

required number of valid signatures and certified the sufficiency and validity of the

petitions in August for placement of the liquor option issues on the November 4

election ballot.

{¶ 7} Robert Young, an employee of The Craig Group, Inc., a public

relations and consulting firm, subsequently became aware that the board had

certified the local liquor option issues. The Craig Group, Inc. consults on liquor

industry matters and conducts local option election campaigns for liquor permit

holders. After Young contacted liquor permit holders in Precinct Q, relator Cooker

authorized him to act on its behalf to file a statutory protest under R.C. 4301.33,

4305.14, and 3501.39 against the petitions. Young is not an attorney.

{¶ 8} On September 2, Young filed a protest on behalf of Cooker with the

board, requesting that the petitions be invalidated. On the same date, relator Karen

A. Meyer, an elector of Precinct W in Washington Township, filed a protest against

the petitions. Young’s and Meyer’s protests specified certain grounds to invalidate

the petitions.

{¶ 9} On September 9, the board held a hearing on the protests. At the

hearing, Meyer’s counsel objected to Cooker’s representation by Young, who is not

an attorney. Despite Meyer’s objection, the board permitted Young to present

Cooker’s case through oral argument, examination of witnesses, and introduction

of exhibits. The board further granted Meyer’s motion to continue the protest

hearing. On September 18, the board reconvened the protest hearing and

reconsidered Meyer’s objection to Young’s representation of Cooker and dismissed

Cooker’s protest. The board determined that it lacked jurisdiction over Cooker’s

protest because it had been filed by a nonattorney. The board noted that although

Cooker had an attorney present for the September 18 hearing, the statutory

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deadlines for submitting a proper protest under R.C. 4301.33 and 4305.14 had

passed.

{¶ 10} The board also granted Sphere’s motion to restrict the evidence

presented at the hearing to those grounds specified in Meyer’s protest. Meyer then

proffered evidence in support of her and Cooker’s contention that Precincts Q and

W did not constitute an appropriate residence district under R.C. 4301.01(B)(19)

because they are not contiguous.

{¶ 11} Although Brinker appeared at the hearing, the board did not permit

it to introduce evidence. Instead, the board indicated that it would conduct its own

investigation concerning the allegation that Brinker had not received notice that its

liquor permit at its Romano’s Macaroni Grill restaurant would be affected by the

liquor option petitions. At the conclusion of the September 18 hearing, the board

denied Meyer’s protest.

{¶ 12} On September 24, relators, Cooker, Meyer, and Brinker, brought this

action for a writ of prohibition to prevent the board from holding a November 4

election on the liquor option issues. Relators also filed a motion for the issuance

of an alternative writ. We granted Sphere’s motion to intervene as a respondent.

Respondents filed answers and motions to dismiss, and relators filed a motion to

strike the motions to dismiss. Relators and Sphere subsequently filed merit briefs.

Pursuant to the expedited election schedule set forth in S.Ct.Prac.R. X(9), this cause

is now before the court for a consideration of the merits.

__________________

Brunner, Brunner & Alexander Co., L.P.A., Rick L. Brunner and Lisa A.

Atkins; J. Richard Lumpe; Benesch, Friedlander, Coplan & Aronoff, L.L.P., N.

Victor Goodman, James F. DeLeone and Mark D. Tucker, for relator Cooker

Restaurant Corporation.

Gary L. Jones Co., L.P.A., Gary L. Jones and James J. Andrioff, for relator

Brinker Ohio, Inc.

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Boucher & Boucher and Richard A. Boucher; and Don A. Little, for relator

Karen A. Meyer.

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and

Victor T. Whisman, Assistant Prosecuting Attorney, for respondent Montgomery

County Board of Elections.

McTigue & Brooks and Donald J. McTigue, for respondent Sphere

Investments, Ltd.

__________________

Per Curiam.

Prohibition

{¶ 13} In order to be entitled to the requested writ of prohibition, relators

must establish that (1) the board is about to exercise judicial or quasi-judicial

power, (2) the exercise of such power is not legally authorized, and (3) if the writ

is denied, they will suffer injury for which no other adequate legal remedy exists.

Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 36-37, 671 N.E.2d

1, 3. A board’s exercise of judicial or quasi-judicial power is unauthorized if it

engaged in fraud or corruption, abused its discretion, or acted in clear disregard of

applicable legal provisions. State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections

(1995), 72 Ohio St.3d 289, 292, 649 N.E.2d 1205, 1208. Here, relators contend

that the board abused its discretion and acted in clear disregard of applicable

statutes and other law. An abuse of discretion implies an unreasonable, arbitrary,

or unconscionable attitude. State ex rel. Crabtree v. Franklin Cty. Bd. of Health

(1997), 77 Ohio St.3d 247, 249, 673 N.E.2d 1281, 1283.

With the foregoing standards in mind, relators’ claims are next addressed.

Cooker Protest: Unauthorized Practice of Law

{¶ 14} Relators contend that the board of elections abused its discretion and

acted in clear disregard of applicable law by dismissing Cooker’s protest because

it had been submitted by Young, a nonattorney, on behalf of Cooker.

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{¶ 15} The last paragraph of R.C. 4301.33(B) provides the following

protest procedure for local option petitions concerning the sale of wine, mixed

beverages, spirituous liquor, and intoxicating liquor:

“Protest against local option petitions may be filed by any elector eligible

to vote on the question or questions described in the petitions or by a permit holder

in the precinct or residence district as described in the petitions, not later than four

p.m. of the sixty-fourth day before the day of the general or primary election for

which the petition qualified. The protest shall be in writing and shall be filed with

the election officials with whom the petition was filed. Upon filing of the protest,

the election officials with whom it is filed shall promptly fix the time for hearing

it, and shall mail notice of the filing of the protest and the time and place for hearing

it to the person who filed the petition and to the person who filed the protest. At

the time and place fixed, the election officials shall hear the protest and determine

the validity of the petition.”

{¶ 16} R.C. 4305.14(D) provides a similar protest procedure for local

option petitions on the sale of beer:

“Protest against a local option petition may be filed by any qualified elector

eligible to vote on the question or questions specified in the petition or by a permit

holder in the precinct or residence district as described in the petition, not later than

four p.m. of the sixty-fourth day before the day of such general or primary election.

Such protest must be in writing and shall be filed with the election officials with

whom the petition was filed. Upon filing of such protest the election officials with

whom it is filed shall promptly fix the time for hearing the same, and shall forthwith

mail notice of the filing of the protest and the time for hearing it to the person who

filed the petition which is protested and to the person who filed the protest. At the

time fixed, the election officials shall hear the protest and determine the validity of

the petition.”

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{¶ 17} In Sharon Village Ltd. v. Licking Cty. Bd. of Revision (1997), 78

Ohio St.3d 479, 678 N.E.2d 932, syllabus, we held that “[t]he preparation and filing

of a complaint with a board of revision on behalf of a taxpayer constitute the

practice of law.” See, also, Gammarino v. Hamilton Cty. Bd. of Revision (1997),

80 Ohio St.3d 32, 684 N.E.2d 309. In so holding, we relied on several factors,

including that (1) the board of revision is a quasi-judicial body, (2) in order to

invoke its jurisdiction, it is necessary to file a verified complaint, (3) the board must

give notice to property owners and boards of education when a complaint is filed

by other parties, and (4) preparation and filing of the complaint contained statutorily

defined jurisdictional requirements that, if not properly met, barred the rights of

owners to contest their valuations. Sharon Village, 78 Ohio St.3d at 481-482, 678

N.E.2d at 934-935.

{¶ 18} For the reasons that follow, the board did not abuse its discretion or

clearly disregard applicable law by dismissing Cooker’s protest because it was not

submitted by an attorney. First, a board of elections, like a board of revision, is a

quasi-judicial body when it considers protests. See State ex rel. Harbarger v.

Cuyahoga Cty. Bd. of Elections (1996), 75 Ohio St.3d 44, 45, 661 N.E.2d 699, 700,

citing Thurn, 72 Ohio St.3d at 291, 649 N.E.2d at 1207 (“A protest hearing in

election matters is a quasi-judicial proceeding.”). Second, in order to invoke the

board’s statutory authority to consider protests to local liquor option petitions under

R.C. 4301.33(B) and 4305.14(D), it is necessary to file a protest. Third, the board

must give notice to the petitioner of the filing of a protest, fix a time for hearing it,

and notify the petitioner and protestor of the time and place for the hearing. R.C.

4301.33 and 4305.14(D). Fourth, if the protestor does not properly meet the

requirements for filing a protest, e.g., time or specificity, it may bar the protestor’s

rights to contest the petitions. See R.C. 4301.33, 4305.14(D), and 3501.39(A)(1).

{¶ 19} Therefore, based on Sharon Village, the preparation and filing of a

statutory protest with a board of elections constitute the practice of law. See R.C.

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4705.01. Young submitted a protest, gave professional advice to his client, and

appeared at the September 9 protest hearing before the board on Cooker’s behalf,

presenting argument and evidence, and conducting direct examination of witnesses.

See Cincinnati Bar Assn. v. Estep (1995), 74 Ohio St.3d 172, 657 N.E.2d 499. The

board of elections thus properly dismissed Cooker’s protest because it was not

properly filed by an attorney. Relators’ reliance on Jemo Assoc., Inc. v. Lindley

(1980), 64 Ohio St.2d 365, 18 O.O.3d 518, 415 N.E.2d 292, is unavailing because,

as noted in Sharon Village, 78 Ohio St.3d at 483, 678 N.E.2d at 935, we did not

consider the issue in Jemo because it was irrelevant. This issue, however, is not

irrelevant here.

{¶ 20} Finally, any argument that Young relied on the advice of the board

in determining that it was permissible for a nonattorney to file a protest is likewise

meritless. Sphere introduced evidence that the board did not advise Young whether

he had to be an attorney to file a protest on behalf of someone else. Furthermore,

any mistaken advice by the board of elections did not estop it from invalidating the

protest submitted by Young. See State ex rel. Chevalier v. Brown (1985), 17 Ohio

St.3d 61, 63, 17 OBR 64, 66, 477 N.E.2d 623, 625, quoting Besl Corp. v. Pub. Util.

Comm. (1976), 45 Ohio St.3d 146, 150, 74 O.O.2d 262, 265, 341 N.E.2d 835, 838

(“ ‘[T]he principle of estoppel does not apply against a state or its state agencies in

the exercise of a governmental function.’ ”); State ex rel. McMillan v. Ashtabula

Cty. Bd. of Elections (1992), 65 Ohio St.3d 186, 189, 602 N.E.2d 631, 633.

Meyer Protest: Specificity

{¶ 21} Relators contend that the board abused its discretion and acted in

clear disregard of applicable law by not invalidating the petitions because (1)

Precincts Q and W are not a “residence district” as defined in R.C. 4301.01(B)(19),

since they are not contiguous, and (2) Sphere did not attach an original R.C.

4305.14(B) affidavit to its beer option petition. Meyer, however, did not raise either

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of these specific objections in her written protest. The board prevented Meyer from

introducing evidence relating to objections she had not raised in her protest.

{¶ 22} R.C. 3501.39(A)(1) provides that a board of elections shall accept

any petition unless 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.”

(Emphasis added.) R.C. 3501.39(A)(1) thereby incorporates the liquor option

protest procedures of R.C. 4301.33 and 4305.14(D). See Harbarger, 75 Ohio St.3d

at 46, 661 N.E.2d at 700; State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d

581, 585, 651 N.E.2d 995, 998 (“All statutes relating to the same general subject

matter must be read in pari materia, and in construing these statutes in pari materia,

this court must give them a reasonable construction so as to give proper force and

effect to each and all of the statutes.”).

{¶ 23} R.C. 3501.39(A)(1) required Meyer to specify her objections in her

protest. One of the evident purposes of this requirement is to give notice to the

petitioner and the opportunity to present evidence to rebut the objections specified.

See R.C. 4301.33 and 4305.14(D). This purpose is not served if the board permits

protestors to introduce evidence on objections not specified in their protests. Meyer

herself acknowledged the specificity requirement of R.C. 3501.39(A)(1) by

referring to it in her protest.

{¶ 24} Based on the unambiguous language of R.C. 3501.39(A)(1), the

board did not err in preventing Meyer from introducing evidence which was not

pertinent to the specific objections in her written protest. Further, because the

alleged substantive petition defects now raised by Meyer in this action were not

specified in her protest, we need not consider these issues. State ex rel. Shumate v.

Portage Cty. Bd. of Elections (1992), 64 Ohio St.3d 12, 14-15, 591 N.E.2d 1194,

1196-1197. Finally, while relators correctly observe that the board is empowered

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to refuse to accept a petition even in the absence of a written protest if it determines

that the petition violates the applicable legal requirements under R.C.

3501.39(A)(3), see State ex rel. O’Beirne v. Geauga Cty. Bd. of Elections (1997),

80 Ohio St.3d 176, 685 N.E.2d 502, the board does not abuse its discretion by

limiting the scope of a protest hearing to the specific objections raised by the written

protest necessitating the hearing. R.C. 3501.39(A)(1).

Cooker and Meyer: Adequate Remedy at Law

{¶ 25} Cooker’s and Meyer’s claims regarding alleged substantive defects

in the liquor option petitions are additionally barred because they failed to properly

raise these issues by valid statutory protest, which is an adequate remedy that

precludes issuance of an extraordinary writ. Shumate, 64 Ohio St.3d at 14-15, 591

N.E.2d at 1196-1197. Cooker’s protest was invalid because it was not prepared

and submitted by an attorney. Meyer’s protest failed to specify the claims she now

raises.

Cooker and Meyer: Laches

{¶ 26} Cooker’s and Meyer’s claims are also barred by laches. “Extreme

diligence and promptness are required in election-related matters.” In re Contested

Election of November 2, 1993 (1995), 72 Ohio St.3d 411, 413, 650 N.E.2d 859,

862.

{¶ 27} Although the liquor option petitions were circulated and filed with

the board in early June, Cooker and Meyer waited until after the board certified the

sufficiency and validity of the petitions in August and thereafter until the statutory

protest deadline in early September to file their protests. Cooker received notice of

the petitions’ circulation and filing in June and could have discerned its main

substantive objections at that time. At the September 9 protest hearing, Meyer

requested and received a continuance of over one week. Cooker and Meyer then

waited another six days following the board’s September 18 decision to file this

prohibition action. Their delay was prejudicial because by the time the expedited

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briefing schedule was complete, the board of elections could not make changes in

the absentee ballots, which had already been printed. Some of the absentee ballots

had also been mailed. State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995),

74 Ohio St.3d 143, 145-146, 656 N.E.2d 1277, 1279. In fact, the continuance of

the protest hearing because of Meyer’s request forced the board to delay printing

the absentee ballots.

{¶ 28} Consequently, Cooker and Meyer did not exercise the required

diligence in this election case, and their claims are barred by laches.

Brinker: Notice

{¶ 29} Relators, including Brinker, finally assert that Sphere’s failure to

provide notice to Brinker under R.C. 4301.33 and 4305.14 of the circulation of the

liquor option petitions denied Brinker due process and deceived signers of the

petitions. The board did not permit Brinker to argue or introduce evidence at the

protest hearings.

{¶ 30} Notwithstanding relators’ argument to the contrary, liquor permit

holders do not possess a constitutional due process right to notice of an impending

local option election because the election is a legislative action by the local

electorate. 37712, Inc. v. Ohio Dept. of Liquor Control (C.A.6, 1997), 113 F.3d

614, 619 (“[T]he failure of Ohio law to provide notice and a hearing prior to the

alleged ‘taking’ (consequent to an adverse local option election) of a person’s

privilege pursuant to an ODLC-issued liquor license to market one or more varieties

of alcoholic beverages in a particular precinct or residence district does not violate

due process, because no notice or opportunity to be heard need [precede] any

legislative action of general applicability.”); State ex rel. Red Carpet Kamms, Inc.

v. Cuyahoga Cty. Bd. of Elections (1988), 46 Ohio App.3d 126, 127, 546 N.E.2d

418, 419.

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{¶ 31} In addition, R.C. 4301.33 and 4305.14 require only that the

petitioner and the board provide notice to the liquor permit holders on the list

provided by the Division of Liquor. For example, R.C. 4301.33 provides:

“Within five days after a petitioner has received from the division the list of

liquor permit holders who would be affected by the question or questions set forth

on a petition for local option election, the petitioner shall, using the form provided

by the board of elections, notify by certified mail each permit holder whose name

appears on that list. * * *

“The petitioner shall attach a copy of the list provided by the division to

each petition paper. A part petition paper circulated at any time without the list of

affected permit holders attached to it is invalid.

“At the time the petitioner files the petition with the board of elections, the

petitioner shall provide to the board the list supplied by the division and an affidavit

certifying that the petitioner notified all affected permit holders on the list in the

manner and within the time required in this section and that, at the time each signer

of the petition affixed the signer’s signature to the petition, the petition paper

contained a copy of the list of affected permit holders.

“Within five days after receiving a petition calling for an election for the

submission of one or more of the questions specified in divisions (A) to (C) of

section 4301.35 or section 4301.351 of the Revised Code, the board shall give

notice by certified mail that it has received the petition to all liquor permit holders

whose names appear on the list of affected permit holders filed by the petitioner as

furnished by the division. Failure of the petitioner to supply the affidavit required

by this section and a complete and accurate list of liquor permit holders as

furnished by the division invalidates the entire petition. * * *” (Emphasis added.)

See, also, R.C. 4305.14(B), which contains similar requirements; cf. Kamms, 46

Ohio App.3d at 127, 546 N.E.2d at 418-419, which held that permit holders have

an express statutory right to notice of the filing of a local option election petition

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under a previous version of R.C. 4301.33, which did not limit the notice

requirement to those affected liquor permit holders specified on the list provided

by the Division of Liquor Control.

{¶ 32} Relators’ argument that the failure to specifically notify Brinker

deceived signers of the petitions so as to render the petitions invalid is also

meritless. None of the cases cited by relators applies to this case, where the

petitioner complied with all applicable legal requirements. Unlike State ex rel.

Green v. Casey (1990), 51 Ohio St.3d 83, 554 N.E.2d 1288, there are no legal

defects in the petitions here. Cf. Thurn, 72 Ohio St.3d at 293, 649 N.E.2d at 1208,

quoting Cincinnati v. Hillenbrand (1921), 103 Ohio St. 286, 133 N.E. 556,

paragraph two of the syllabus (“ ‘[W]here the mandatory provisions of the

Constitution or statute prescribing the necessary preliminary steps to authorize the

submission to the electors of an initiative statute or ordinance have been complied

with, the submission will not be enjoined.’ ”).

Conclusion

{¶ 33} Accordingly, for the foregoing reasons, we deny the writ of

prohibition. Based on the evidence presented by the parties, relators have not

established their entitlement to the requested extraordinary relief. This conclusion

moots the parties’ various motions.

Writ denied.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,

JJ., concur.

COOK, J., concurs separately.

DOUGLAS, J., concurs in judgment only.

__________________

COOK, J., concurring.

{¶ 34} I concur in the judgment denying the writ of prohibition as to Brinker

on the notice issue. As to Cooker and Meyer, I concur in the judgment denying

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the writ only on the basis of laches and concur with the analysis of that subject in

the per curiam opinion.

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