State ex rel. Wolfe v. Delaware Cty. Bd. of Elections

[This opinion has been published in Ohio Official Reports at 88 Ohio St.3d 182.]

THE STATE EX REL. WOLFE v. DELAWARE COUNTY BOARD OF ELECTIONS ET

AL.

[Cite as State ex rel. Wolfe v. Delaware Cty. Bd. of Elections, 2000-Ohio-294.]

Elections—Candidacy for county sheriff invalidated by board of elections—

Candidate did not have credentials required by R.C. 311.01(B)(9)—Board

did not abuse its discretion—Writ denied.

(No. 00-139—Submitted February 14, 2000—Decided February 18, 2000.)

IN MANDAMUS.

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{¶ 1} In mid-October 1995, while serving as a full-time deputy sheriff for

the Delaware County Sheriff’s Office, relator, Mark W. Wolfe, assumed the duties

of an officer in charge during certain shifts. Wolfe continued in this capacity while

retaining the rank of deputy sheriff until he was promoted to sergeant on January

1, 1996.

{¶ 2} From January 1, 1996 until October 1, 1997, i.e., a total of twenty-one

months, Wolfe served as a sergeant with the Delaware County Sheriff’s Office and

performed supervisory duties associated with that position.

{¶ 3} On September 2, 1998, then village of Kirkersville Mayor Terry W.

Ashcraft appointed Wolfe as an auxiliary police officer for the Kirkersville Police

Department. According to Wolfe, he worked as a sergeant in Kirkersville for three

eight-hour shifts in September and October 1998, during which time no other

Kirkersville police officer was working. Wolfe claimed that he then took a leave

of absence from the job until he submitted his resignation in August 1999.

{¶ 4} Wolfe subsequently filed a declaration of candidacy and petition to

become a candidate for the Republican Party nomination for the office of Delaware

County Sheriff on the March 7, 2000 primary election ballot. On January 10, 2000,

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incumbent Delaware County Sheriff Alfred K. Myers, Wolfe’s prospective

opponent in the March 7 primary, filed a written protest under R.C. 3513.05 with

respondent Delaware County Board of Elections. In his protest, Myers stated that

Wolfe was not eligible to be a candidate for sheriff because he did not meet either

of the required qualifications set forth in R.C. 311.01(B)(9).

{¶ 5} On January 18, the board held a hearing on Sheriff Myers’s protest.

At the hearing, the parties introduced conflicting evidence on Wolfe’s duties during

his mid-October 1995 through December 31, 1996 employment as a deputy sheriff

with the Delaware County Sheriff’s Office. For example, Wolfe testified on his

redirect examination that he performed the same duties as shift supervisor during

this period that he subsequently performed as a sergeant from January 1, 1996 to

October 1, 1997. But upon further questioning by the board, Wolfe conceded that

he “was not at the rank of sergeant nor did [he] perform the sergeant’s duties” from

October through December 1995.

{¶ 6} The parties also introduced conflicting evidence concerning Wolfe’s

employment with the Kirkersville Police Department. Wolfe and Michael Kilburn,

the Kirkersville Police Chief from November 1997 until his resignation in early

September 1998, testified that on September 2, 1998, Wolfe was appointed sergeant

with the Kirkersville Police Department. Kilburn further testified, however, that

Wolfe was appointed by then Mayor Ashcraft upon Kilburn’s recommendation and

that the mayor’s appointment did not designate Wolfe as a sergeant. Ashcraft

testified that he never appointed Wolfe as sergeant. And Kilburn’s successors as

police chief testified that Wolfe never served as a sergeant on the Kirkersville

Police Department and that they had no records, i.e., time sheets or work logs, of

any service by Wolfe as a police officer for the department.

{¶ 7} On January 18, at the conclusion of the hearing, the board voted

unanimously to grant Sheriff Myers’s protest and to invalidate Wolfe’s candidacy

for sheriff at the March 7 primary election.

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January Term, 2000

{¶ 8} On January 24, Wolfe filed this expedited election action for a writ of

mandamus to compel respondents, the board, its director, chairman, and members,

to certify his candidacy for Delaware County Sheriff for the March 7 primary

election ballot. Respondents filed an answer, and the parties filed evidence and

briefs.

{¶ 9} This cause is now before the court for a consideration of the merits.

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David K. Greer, for relator.

W. Duncan Whitney, Delaware County Prosecuting Attorney, Dane A.

Gaschen and David A. Hejmanowski, Assistant Prosecuting Attorneys, for

respondents.

Reid & Berry and Robert L. Berry, urging denial of the writ for amicus

curiae, Buckeye State Sheriffs Association.

__________________

Per Curiam.

{¶ 10} Wolfe requests a writ of mandamus. The board’s decision to uphold

Sheriff Myers’s protest will be set aside and a writ of mandamus will issue to

compel placement of Wolfe’s name on the March 7 primary election ballot for the

office of Delaware County Sheriff if the board engaged in fraud, corruption, abuse

of discretion, or clear disregard of applicable legal provisions. State ex rel. Hazel

v. Cuyahoga Cty. Bd. of Elections (1997), 80 Ohio St.3d 165, 167, 685 N.E.2d 224,

226. Wolfe asserts that the board abused its discretion and acted in clear disregard

of R.C. 311.01 by determining that he was not eligible to be a candidate for sheriff.

{¶ 11} The board determined that Wolfe did not establish compliance with

R.C. 311.01(B), which provides:

“On and after January 1, 1988, except as otherwise provided in this section,

no person is eligible to be a candidate for sheriff and no person shall be elected or

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appointed to the office of sheriff unless that person meets all of the following

requirements:

“***

“(9) The person meets at least one of the following conditions:

“(a) Has at least two years of supervisory experience as a peace officer at

the rank of corporal or above, or has been appointed pursuant to section 5503.01

of the Revised Code and served at the rank of sergeant or above, in the five-year

period ending immediately prior to the qualification date;

“(b) Has completed satisfactorily at least two years of post-secondary

education or the equivalent in semester or quarter hours in a college or university

authorized to confer degrees by the Ohio board of regents or the comparable agency

of another state in which the college or university is located.” (Emphasis added.)

{¶ 12} Wolfe never claimed that he had been appointed under R.C. 5503.01,

which involves highway patrol employees, or that he has the post-secondary

education specified in R.C. 311.01(B)(9)(b). Therefore, in order to satisfy R.C.

311.01(B)(9), he had to have “at least two years of supervisory experience as a

peace officer at the rank of corporal or above * * * in the five-year period ending

immediately prior to the qualification date.” The pertinent five-year period here is

January 7, 1995 to January 6, 2000. See R.C. 311.01(H)(1); R.C. 3513.05.

{¶ 13} Legislative intent is the preeminent consideration in construing a

statute. State ex rel. Zonders v. Delaware Cty. Bd. of Elections (1994), 69 Ohio

St.3d 5, 8, 630 N.E.2d 313, 315. To determine the legislative intent, we first review

the statutory language. State ex rel. Sinay v. Sodders (1997), 80 Ohio St.3d 224,

227, 685 N.E.2d 754, 758. In reviewing the statutory language, we accord the

words used their usual, normal, or customary meaning. R.C. 1.42; State ex rel.

Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 340, 673 N.E.2d

1351, 1353.

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January Term, 2000

{¶ 14} Under the language used in the pertinent portion of R.C.

311.01(B)(9)(a), in order to be eligible to be a candidate for sheriff, the person must,

within the five-year period, have two years of supervisory experience and that

supervisory experience must have been earned when the person served as a peace

officer at the rank of corporal or above.

{¶ 15} Applying R.C. 311.01(B)(9)(a) here, we find it is uncontroverted

that Wolfe has twenty-one months of qualifying supervisory experience when he

served as a sergeant in the Delaware County Sheriff’s Office from January 1, 1996

to October 1, 1997, i.e., in that position, Wolfe had supervisory experience earned

while serving as a peace officer at a rank higher than corporal.

{¶ 16} Therefore, Wolfe needed three more months of qualifying

supervisory experience to satisfy R.C. 311.01(B)(9)(a). Wolfe claims that he is

entitled to an additional two and one-half months of qualifying supervisory

experience for his service as an acting shift supervisor in the Delaware County

Sheriff’s Office from mid-October through December 31, 1995, and an additional

twelve months of qualifying supervisory experience for his service as a sergeant for

the Kirkersville Police Department from September 1998 through his purported

resignation in August 1999.

{¶ 17} Wolfe is not, however, entitled to any of the additional claimed

supervisory experience. It is uncontroverted that the two and one-half months he

served as acting shift supervisor in the sheriff’s office were not served at the rank

of corporal or above. And the evidence before the board conflicted about whether

Wolfe served at the rank of corporal or above when he allegedly worked for the

Kirkersville Police Department. Former Mayor Ashcraft testified that he never

appointed Wolfe sergeant. While Wolfe claims that the board concluded that he

was a sergeant and that he is entitled to at least two months’ credit for September

and October 1998, a majority of the board did not make such finding. We will not

substitute our judgment for that of a board of elections if there is conflicting

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evidence on an issue. State ex rel. O’Beirne v. Geauga Cty. Bd. of Elections (1997),

80 Ohio St.3d 176, 181, 685 N.E.2d 502, 506; State ex rel. Kelly v. Cuyahoga Cty.

Bd. of Elections (1994), 70 Ohio St.3d 413, 414, 639 N.E.2d 78, 79 (“Boards of

elections are obligated to weigh evidence of a candidate’s qualifications, and courts

should not substitute their judgment for that of the board.”).

{¶ 18} Neither Wolfe’s reliance on State ex rel. Hawkins v. Pickaway Cty.

Bd. of Elections (1996), 75 Ohio St.3d 275, 662 N.E.2d 17, nor our duty to liberally

construe statutory restrictions on rights to be a political candidate requires a

contrary result. In Hawkins, we construed a substantially different previous version

of R.C. 311.01(B)(9),1 and held that “the mere fact that Hawkins failed to hold a

‘rank’ specifying supervisor status did not preclude him from performing duties

which constituted supervisory experience or its equivalent when he was a patrolman

and deputy sheriff.” Id. at 278, 662 N.E.2d at 20. But unlike former R.C.

311.01(B)(9), the current version of R.C. 311.01(B)(9) expressly requires that the

supervisory experience be “as a peace officer at the rank of corporal or above.”

(Emphasis added.) Hawkins is consequently inapposite.2

{¶ 19} Similarly, although we have a duty to liberally construe R.C.

311.01(B)’s limitations on the right to be an eligible candidate for sheriff in order

to permit electors to choose from all qualified candidates, see State ex rel. Altiere

v. Trumbull Cty. Bd. of Elections (1992), 65 Ohio St.3d 164, 165, 602 N.E.2d 613,

1. Former R.C. 311.01(B)(9) provided that no person is eligible to be a candidate for sheriff unless

that person “has at least two years of supervisory experience or its equivalent.” 141 Ohio Laws,

Part III, 5506.

2. Even if Hawkins applied, the evidence is such that the board would have been justified in

determining that Wolfe still did not have the requisite supervisory experience. For example, there

was evidence that Wolfe never supervised anyone during the time that he was employed by the

Kirkersville Police Department. And Wolfe testified at one point in the protest hearing that he never

performed sergeant’s duties for the sheriff’s office until January 1, 1996. Although Wolfe claims

in his reply brief that this portion of his testimony was incorrectly transcribed, he introduced no

evidence to that effect.

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January Term, 2000

614, “ ‘[t]here is no need to liberally construe a statute whose meaning is

unequivocal and definite.’ ” Nibert v. Ohio Dept. of Rehab. & Corr. (1998), 84

Ohio St.3d 100, 102, 702 N.E.2d 70, 71, quoting Lake Hosp. Sys., Inc. v. Ohio Ins.

Guar. Assn. (1994), 69 Ohio St.3d 521, 525, 634 N.E.2d 611, 614. Given the clarity

of the language of R.C. 311.01(B)(9), we need not apply interpretative rules to

discern its meaning; we need only apply its unambiguous language. Harsco Corp.

v. Tracy (1999), 86 Ohio St.3d 189, 192, 712 N.E.2d 1249, 1251-1252.

{¶ 20} Based on the foregoing, the board neither abused its discretion nor

clearly disregarded R.C. 311.01(B)(9) by granting the protest and invalidating

Wolfe’s candidacy for sheriff. Wolfe failed to satisfy either of the conditions

specified in R.C. 311.01(B)(9). Therefore, we deny Wolfe’s request for

extraordinary relief in mandamus.

Writ denied.

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

STRATTON, JJ., concur.

PFEIFER, J., dissents.

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PFEIFER, J., dissenting.

{¶ 21} The statute at issue, R.C. 311.01, is overly restrictive without a

rational basis. I would find it unconstitutional.

{¶ 22} R.C. 311.01 is denying Ohio citizens a meaningful choice in electing

sheriffs. In Ohio’s small counties, R.C. 311.01 effectively rules out competition.

Active police officers cannot run for sheriff because as classified civil servants they

are prohibited from political activity. R.C. 124.57. A sheriff’s deputy in an

unclassified position could run for office, but an officer running against his boss is

not a realistic possibility. Indeed, even the Attorney General of this state, defined

by statute as our “chief law officer,” R.C. 109.02, would not be qualified to be a

county sheriff under R.C. 311.01. See, e.g., R.C. 311.01(B)(8).

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{¶ 23} Reasonable, nondiscriminatory restrictions upon voting rights are

generally upheld where the state’s important regulatory interests justify the

restrictions. Burdick v. Takushi (1992), 504 U.S. 428, 434, 112 S.Ct. 2059, 2063-

2064, 119 L.Ed.2d 245, 253-254. R.C. 311.01 does not further the regulatory

interests of the state. Stifled competition does not yield better sheriffs.

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