State ex rel. Stevens v. Geauga Cty. Bd. of Elections

[This opinion has been published in Ohio Official Reports at 90 Ohio St.3d 223.]

THE STATE EX REL. STEVENS v. GEAUGA COUNTY BOARD OF ELECTIONS.

[Cite as State ex rel. Stevens v. Geauga Cty. Bd. of Elections, 2000-Ohio-66.]

Elections—Mandamus sought to compel Geauga County Board of Elections to

certify question B on a local option petition for placement on the

November 7, 2000 election ballot—Writ denied, when.

(No. 00-1601—Submitted September 28, 2000—Decided October 2, 2000.)

IN MANDAMUS.

__________________

{¶ 1} Hillbrook Club, Inc. (“Hillbrook”) designated relator, Eugene

Stevens, as its agent to file a particular-location local option petition with

respondent, Geauga County Board of Elections. Stevens retained Michael D.

Ambrose to prepare, circulate, and file the petition for the submission of two local

option questions to the electors of Precinct C in Russell Township, Geauga County,

Ohio, at the November 7, 2000 general election.

{¶ 2} On August 23, 2000, Ambrose filed a petition with the board on behalf

of Stevens as the petitioner and designated agent of Hillbrook. Each part-petition,

which was on a form prescribed by the Secretary of State of Ohio, specified on the

first page:

“LOCAL OPTION ELECTION PETITION

“Revised Code Sections 3501.38, 4301.323 and 4301.333

“A petition to submit the question of the sale of beer and intoxicating

liquor at a particular location within a precinct if the petitioner for the local

option election is an applicant for the issuance or transfer of a liquor permit

at, or to, a particular location within a precinct; or the holder of a permit at a

particular location within the precinct; or a person who operates or seeks to

operate a liquor agency store at a particular location within the precinct.

SUPREME COURT OF OHIO

“INSTRUCTIONS

“1. Any one or more of the following questions may be submitted.

“2. Place an ‘X’ in the box to the left of the question or questions to be

submitted.

“3. Complete the description of the precinct for each question to be

submitted.

“4. All of the above must be completed before obtaining any signatures.

“***

“TO THE BOARD OF ELECTIONS OF Geauga COUNTY, OHIO:

“We, the undersigned qualified electors of the precinct herein defined,

respectfully petition that you submit to the electors of such precinct, the following

question(s):

“[XX] A. ‘Shall the sale of beer and any intoxicating liquor be permitted

by Hillbrook Club, Inc. doing business as Hillbrook Club, a(n) applicant for a D-1,

D-2 and D-3 liquor permit, who is engaged in the business of operating a private

social club at 14800 Hillbrook Drive, Russell Twp., OH in this precinct?’

“[ ] B. ‘Shall the sale of beer and intoxicating liquor be permitted for sale

on Sunday by Hillbrook Club, Inc. doing business as Hillbrook Club, a(n) applicant

for a D-6 liquor permit who is engaged in the business of operating a private social

club at 14800 Hillbrook Drive, Russell Twp., OH in this

precinct?’ ”1 (Underlining sic.)

{¶ 3} Each part-petition contained two “X”s in the box next to question A

but did not contain an “X” for the box next to question B, which addresses the sale

of beer and intoxicating liquor by Hillbrook on Sundays. The third page of each

part-petition contained an affidavit of Stevens with a paragraph specifying, in

1. The underlined material in questions A and B as well as the “X”s in the box next to question A

on each part-petition were filled in on the form by or on behalf of Stevens.

2

January Term, 2000

extremely small print, the proposed use of the location following the election. The

proposed Sunday sales use was described at the very end of the paragraph:

“[The proposed use] will be the operation of a full-service, family oriented

social club offering full course meals including the sale of beer at retail either in

glass or container, for consumption on the premises where sold, and to sell beer at

retail in other receptacles or in original containers having a capacity of not more

than five and one-sixth gallons not for consumption on the premises where sold as

authorized by a D1 permit. To also sell wine and prepared and bottled cocktails,

cordials and other mixed beverages manufactured and distributed by holders of A-

4 and B-4 permits at retail, either in glass or container, for consumption on the

premises where sold and to sell the same in original packages and not for

consumption on the premises where sold or for resale as authorized by a D2 permit.

And to sell spirituous liquor at retail, only by the individual drink in glass or from

the container, for consumption on the premises where sold until one a.m. as

authorized under a D3 permit. The operation of said social club shall also include

the sale of intoxicating liquor on Sundays after 1:00 p.m. as authorized by a D6

permit.” (Emphasis added.)

{¶ 4} At an August 25, 2000 meeting, the board of elections voted to accept

question A and submit that question to electors at the November 7, 2000 general

election. The board determined that Stevens’s petition requested the submission of

only question A on the November 7 ballot, since there was no “X” mark in the space

provided for question B. On August 29, the board forwarded absentee voter ballots

to the printer to have them ready for use on October 3. See R.C. 3509.01.

{¶ 5} On September 5, Stevens filed this action for a writ of mandamus to

compel the board to certify question B for placement on the November 7 election

ballot. The parties filed evidence and briefs pursuant to the expedited election

schedule set forth in S.Ct.Prac.R. X(9).

__________________

3

SUPREME COURT OF OHIO

Donald J. McTigue, for relator.

David P. Joyce, Geauga County Prosecuting Attorney, and Laura A.

LaChapelle, Assistant Prosecuting Attorney, for respondent.

__________________

Per Curiam.

{¶ 6} Stevens seeks a writ of mandamus to compel the submission of

question B on his local option petition to the electorate. “In extraordinary actions

challenging the decision of a board of elections, the applicable standard is whether

the board engaged in fraud, corruption, abuse of discretion, or clear disregard of

statutes or pertinent law.” State ex rel. Valore v. Summit Cty. Bd. of Elections

(1999), 87 Ohio St.3d 144, 145, 718 N.E.2d 415, 416. Stevens asserts that the board

abused its discretion and acted in clear disregard of the applicable statutes by failing

to certify question B. The term “abuse of discretion” connotes an unreasonable,

arbitrary, or unconscionable decision. In re Election Contest of Democratic

Primary Held May 4, 1999 for Clerk, Youngstown Mun. Court (2000), 88 Ohio

St.3d 258, 266, 725 N.E.2d 271, 278.

{¶ 7} Under R.C. 4301.323, the electors of an election precinct may

exercise the privilege of local option on the sale of beer and any intoxicating liquor

at a particular location within the precinct if the petitioner seeking the election

meets one of the qualifications set forth in R.C. 4301.323(A) through (D).2 See,

also, R.C. 4301.333(A)(1) through (4). In order to exercise the privilege, a qualified

petitioner must, not later than four p.m. of the seventy-fifth day before the day of a

2. R.C. 4301.323 requires that the petitioner for a local option election be one of the following:

“(A) An applicant for the issuance or transfer of a liquor permit at, or to, a particular

location within the precinct;

“(B) The holder of a liquor permit at a particular location within the precinct;

“(C) A person who operates or seeks to operate a liquor agency store at a particular location

within the precinct;

“(D) The designated agent for an applicant, liquor permit holder, or liquor agency store

described in division (A), (B), or (C) of this section.”

4

January Term, 2000

general or primary election, present a petition to the board of elections of the county

in which the precinct is situated that meets the requirements set forth in R.C.

4301.333(B). One of these requirements is that the petition contain a notice that

the petition is for the submission of one or more of the questions in R.C. 4301.355.3

See R.C. 4301.333(B)(1).

{¶ 8} The board must then examine and determine the sufficiency of the

signatures and validity of the petition. R.C. 4301.333(C). “If the board finds that

the petition contains sufficient signatures and in other respects is valid, it shall order

the holding of an election in the precinct on the day of the next general or primary

election, whichever occurs first, for the submission of the question or questions set

forth in section 4301.355 of the Revised Code.” Id. R.C. 4301.355(B) provides

that at the local option election, one or more of the two particular-location issues

“as designated in a valid petition, shall be submitted to the electors of the precinct.”

(Emphasis added.)

{¶ 9} The Secretary of State is authorized under R.C. 3501.05(P) to

“[p]rescribe and distribute to boards of elections a list of instructions indicating all

legal steps necessary to petition successfully for local option elections under

sections 4301.32 to 4301.41, 4303.29, 4305.14, and 4305.15 of the Revised Code,”

which includes local option elections for particular locations or liquor agency stores

within a precinct.

{¶ 10} The form and accompanying instructions prepared by the Secretary

of State and used by Stevens in preparing, circulating, and filing his petition

expressly required that the petitioner place an “X” in the box to the left of the

3. Although R.C. 4301.333(B)(1) refers to R.C. 4301.353, which involves special elections for sales

in a portion of a precinct or residence district, it is evident—as relator himself asserts—that the

General Assembly intended to refer instead to R.C. 4301.355, which specifies the form of ballots

and petitions for particular local option elections for locations or liquor agency stores within the

precinct.

5

SUPREME COURT OF OHIO

question or questions sought to be submitted to the electorate. It is uncontroverted

that Stevens and his agent did not place any “X” in the box to the left of question

B, relating to Sunday sales.

{¶ 11} Notwithstanding Stevens’s assertions to the contrary, the form and

instructions prescribed by the Secretary of State reasonably specify the legal

requirements for the requested local option election. The form’s mandatory

instruction that petitioners place an “X” in the box to the left of the question or

questions to be submitted implements the statutory requirements that the petition

afford notice of the R.C. 4301.355 questions that are being submitted and that the

petition designate which questions are being submitted. See R.C. 4301.333(B)(1)

and 4301.355(B); see, also, State ex rel. Herman v. Klopfleisch (1995), 72 Ohio

St.3d 581, 586, 651 N.E.2d 995, 999 (“[W]hen an election statute is subject to two

different, but equally reasonable, interpretations, the interpretation of the Secretary

of State, the state’s chief election officer, is entitled to more weight”).

{¶ 12} By not placing an “X” in the box next to question B, Stevens failed

to comply with the notice requirement of R.C. 4301.333(B)(1) as well as the

designation requirement of R.C. 4301.355(B).

{¶ 13} Stevens counters that because he filled in the blanks of question B

with all the information necessary and his affidavit attached to the petition included

Sunday sales of intoxicating liquor as a proposed use of Hillbrook, it was evident

that Stevens also sought the submission of question B to the electorate. But based

on the first page of each part-petition, signers could have reasonably believed that

an “X” was required for the question or questions to be submitted for vote and that

because he failed to mark an “X” in the box next to question B, that question would

not be submitted. In addition, Stevens’s affidavit was on the third page of each

part-petition and the proposed Sunday sales use contained therein was at the end of

a lengthy, single-spaced paragraph in extremely small print.

6

January Term, 2000

{¶ 14} In other words, because only one of the two questions was marked

for submission, the petition conveyed a mistaken or confusing impression about

whether the second question was also being submitted to the electorate. Cf. E. Ohio

Gas Co. v. Wood Cty. Bd. of Elections (1998), 83 Ohio St.3d 298, 301, 699 N.E.2d

916, 918, quoting State ex rel. Hamilton v. Clinton Cty. Bd. of Elections (1993), 67

Ohio St.3d 556, 562, 621 N.E.2d 391, 395 (“ ‘Referendum petitions have been held

invalid for conveying a confusing or mistaken impression as to the effect of a

zoning resolution’ ”). By creating this ambiguity, Stevens contravened the

requirements for a valid local option petition.

{¶ 15} Therefore, the board did not act in an unreasonable, arbitrary, or

unconscionable manner by certifying only question A for submission to the

electorate at the November 7 election. Instead, the board fully complied with R.C.

4501.333 and 4301.355 by submitting the sole question properly designated by

Stevens in his petition, i.e., question A. As we have previously noted, boards of

elections “are the local authorities best equipped to gauge compliance with election

laws.” State ex rel. Sinay v. Sodders (1997), 80 Ohio St.3d 224, 231, 685 N.E.2d

754, 760. Nothing in the case indicates that the board failed in this regard.

{¶ 16} Based on the foregoing, Stevens has not established his entitlement

to the requested extraordinary relief. Consequently, we deny the writ.

Writ denied.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

__________________

7