State ex rel. Phillips v. Lorain Cty. Bd. of Elections

[This decision has been published in Ohio Official Reports at 93 Ohio St.3d 535.]

THE STATE EX REL. PHILLIPS v. LORAIN COUNTY BOARD OF ELECTIONS.

[Cite as State ex rel. Phillips v. Lorain Cty. Bd. of Elections, 2001-Ohio-1627.]

Writs of prohibition and mandamus sought to prevent Lorain County Board of

Elections from placing name on Avon’s November 6, 2001 general

election ballot and counting any votes for that candidate at the election

for the office of council at large—Complaint for writ of mandamus

dismissed, when—Writ of prohibition denied, when.

(No. 01-1765—Submitted October 18, 2001—Decided October 23, 2001.)

IN MANDAMUS AND PROHIBITION.

__________________

Per Curiam.

{¶ 1} On August 20, 2001, Thomas L. Wearsch filed a nominating petition

and statement of candidacy for the office of Council at Large in the city of Avon,

Lorain County, Ohio. The nominating petition and statement of candidacy was

composed of five part-petitions and was on a form prescribed by the Secretary of

State of Ohio.

{¶ 2} The petition form provided:

“STATEMENT OF CANDIDACY

“I __________________________, the undersigned, * * * declare that I

desire to be a candidate for election to the office of _________________, in the

municipality of ___________________, for the: full term or unexpired term

ending ___________________, in ___________________ County, Ohio at the

general election to be held on the __________________ day of _____________,

___________.

“* * *

“NOMINATING PETITION

SUPREME COURT OF OHIO

“We, the undersigned, qualified electors of the State of Ohio, whose voting

residence is in the county, city, village, or township set opposite our names, hereby

nominate __________________ as a candidate for election to the office of

_________________ in the municipality of __________________, for the: full

term or unexpired term ending ________________, to be voted for at the next

general election.”

{¶ 3} On the form, the instruction “[f]ill in the appropriate date” is under

the blanks following the phrase “unexpired term ending.” (Id.)

{¶ 4} In two of the five part-petitions, Wearsch specified in the statement

of candidacy section that he desired to be a candidate for the office of Council at

Large for the “full term * * * ending 12-31-01,” whereas in the statement of

candidacy section on the other three part-petitions, Wearsch listed his candidacy

for a “full term * * * ending 12-31-03.” In the nominating petition section of all

five part-petitions, Wearsch listed himself as a candidate for Council at Large for

the “full term * * * ending 12-31-01 to be voted for at the next general election.”

In other words, in all of the part-petitions, in the statement of candidacy and

nominating petition sections, Wearsch checked the boxes next to “full term,” and

he did not check the boxes next to “unexpired term ending,” but he did insert either

“12-31-01” or “12-31-03” in the blanks next to “unexpired term ending.”

{¶ 5} On the November 6, 2001 general election ballot for Avon, there are

three available Council at Large seats. All three seats are for full terms ending

December 31, 2003, not for full terms ending December 31, 2001. The three

candidates receiving the highest vote total will be declared the successful

candidates.

{¶ 6} On September 4, 2001, relator, Gerald W. Phillips, an attorney who is

an elector of Avon, filed a written protest pursuant to R.C. 3513.263 with

respondent, Lorain County Board of Elections, against Wearsch’s petition. Phillips

claimed that the petition was defective because two part-petitions contained an

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January Term, 2001

incorrect term-ending date of December 31, 2001, in the statement of candidacy

section and all five part-petitions had the same incorrect term-ending date of

December 31, 2001, in the nominating petition section.

{¶ 7} By letter dated September 21, Phillips contended that the board had

failed to promptly set the hearing on his protest, and he requested an immediate

protest hearing. On September 24, Phillips submitted a memorandum in support of

his protest with the board. In his memorandum, Phillips asserted that specifying

the appropriate term of office in a nominating petition is an absolute requirement

of R.C. 3513.261 that requires strict compliance. Phillips did not specifically assert

that Wearsch had failed to substantially comply with R.C. 3513.261.

{¶ 8} On the same date that Phillips submitted his memorandum, September

24, 2001, the board held a hearing on Phillips’s protest, at the conclusion of which

the board unanimously denied the protest and reaffirmed the board’s certification

and validation of Wearsch’s petition and his placement on the November 6, 2001

general election ballot.

{¶ 9} On October 3, 2001, Phillips filed this action for a writ of prohibition

to prevent the placement of Wearsch’s name on the November 6, 2001 general

election ballot and the counting and canvassing of any ballots for Wearsch at the

election. Phillips also requested a writ of mandamus to compel the board to grant

Phillips’s protest, to reject the Wearsch petition, and to prohibit the placement of

his name on the November 6, 2001 general election ballot. The board filed an

answer, and the parties filed evidence and briefs pursuant to the expedited election

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

{¶ 10} Phillips requests writs of prohibition and mandamus to prevent the

board from placing Wearsch’s name on the November 6, 2001 general election

ballot and counting any votes for him at the election. For the following reasons,

Phillips’s claims lack merit.

Mandamus

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SUPREME COURT OF OHIO

{¶ 11} Phillips’s mandamus claim is an ill-conceived request for

prohibitory injunctive relief, i.e., to prevent Wearsch’s candidacy at the November

6, 2001 general election. “In general, if the allegations of a complaint for a writ of

mandamus indicate that the real objects sought are a declaratory judgment and a

prohibitory injunction, the complaint does not state a cause of action in mandamus

and must be dismissed for want of jurisdiction.” State ex rel. Grendell v. Davidson

(1999), 86 Ohio St.3d 629, 634, 716 N.E.2d 704, 710. We have applied this rule to

election cases. State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections (1995),

72 Ohio St.3d 69, 70-71, 647 N.E.2d 769, 771. Based on the foregoing precedent,

we lack jurisdiction over Phillips’s mandamus claim and it is dismissed.

Prohibition

{¶ 12} Phillips also requests a writ of prohibition to prevent Wearsch’s

candidacy on the November 6, 2001 general election ballot. In order to be entitled

to a writ of prohibition, Phillips must establish that (1) the board is about to exercise

or has exercised judicial or quasi-judicial power, (2) the exercise of that power is

unauthorized by law, and (3) denial of the writ will cause injury for which no other

adequate remedy in the ordinary course of law exists. See State ex rel. Baldzicki v.

Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 241, 736 N.E.2d 893,

895. Phillips has established that the board has exercised quasi-judicial power in

denying his protest and that denial of the writ will cause injury for which he lacks

an adequate remedy in the ordinary course of law.

{¶ 13} Therefore, in order to be entitled to the requested writ of prohibition,

Phillips must establish that the board engaged in fraud or corruption, abused its

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

Baur v. Medina Cty. Bd. of Elections (2000), 90 Ohio St.3d 165, 166, 736 N.E.2d

1, 2. Phillips asserts that the board abused its discretion and clearly disregarded

applicable law, including R.C. 3513.261, in denying his protest and certifying

Wearsch’s candidacy.

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January Term, 2001

{¶ 14} R.C. 3513.261 governs the form of the nominating petition and

statement of candidacy here and provides:

“The form of the nominating petition and statement of candidacy shall be

substantially as follows:

“STATEMENT OF CANDIDACY

“I, ……………. (Name of candidate), the undersigned, hereby declare

under penalty of election falsification * * * that I am a qualified elector in the

precinct in which my voting residence is located. I hereby declare that I desire to

be a candidate for election to the office of ……………. in the ……………. (State,

District, County, City, Village, Township, or School District) for the …………….

(Full term or unexpired term ending ………………) at the General Election to be

held on the …………. day of ……………….., ……………. .

“* * *

“NOMINATING PETITION

“We, the undersigned, qualified electors of the state of Ohio, whose voting

residence is in the County, City, Village, Ward, Township or Precinct set opposite

our names, hereby nominate …………….. as a candidate for election to the office

of ……………. in the ……………… (State, District, County, City, Village,

Township, or School District) for the …………. (Full term or unexpired term

ending ……………….) to be voted for at the general election next hereafter to be

held, and certify that this person is, in our opinion, well qualified to perform the

duties of the office or position to which the person desires to be elected.” (Emphasis

added.)

{¶ 15} Phillips claims that by using the incorrect term-ending date for the

nominating petition portion of all five part-petitions and for the statement of

candidacy on two of the five part-petitions, the petition failed to comply with the

strict form requirements of R.C. 3513.261.

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SUPREME COURT OF OHIO

{¶ 16} Admittedly, the settled rule is that election laws are mandatory and

require strict compliance, and that substantial compliance is acceptable only when

an election statute expressly permits it. State ex rel. Citizens for Responsible

Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167, 169, 602 N.E.2d

615, 617. R.C. 3513.261, however, expressly permits substantial compliance with

the form of the nominating petition and statement of candidacy. State ex rel.

Osborn v. Fairfield Cty. Bd. of Elections (1992), 65 Ohio St.3d 194, 196-197, 602

N.E.2d 636, 638 (“R.C. 3513.261 requires only substantial compliance with the

form of the statement of the candidacy”). Therefore, Wearsch needed only to

substantially comply with the form requirements in R.C. 3513.261.

{¶ 17} The cases cited by Phillips in his protest and supplemental

memorandum in support of his proposition that Wearsch failed to strictly comply

with the requirements of R.C. 3513.261 are inapposite. See, e.g., State ex rel.

Clinard v. Greene Cty. Bd. of Elections (1990), 51 Ohio St.3d 87, 554 N.E.2d 895;

State ex rel. Calhoun v. Scioto Cty. Bd. of Elections (1988), 36 Ohio St.3d 164, 522

N.E.2d 49; State ex rel. McGinley v. Bliss (1948), 149 Ohio St. 329, 37 O.O. 21, 78

N.E.2d 715. These cases construed strict statutory requirements regarding the

commencement date for declarations of judicial candidacies. See R.C. 3513.08.

The requirements contained in R.C. 3513.261 regarding the form of the nominating

petition and statement of candidacy demand only substantial compliance. Osborn,

65 Ohio St.3d at 196-197, 602 N.E.2d at 638.

{¶ 18} Phillips now claims that Wearsch also failed to substantially comply

with R.C. 3513.261. But he never specifically raised this argument in his protest

or his supplemental memorandum in support of his protest, instead confining his

contention to the petition’s failure to strictly comply with allegedly mandatory

statutory requirements. See State ex rel. Cooker Restaurant Corp. v. Montgomery

Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 308, 686 N.E.2d 238, 243

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January Term, 2001

(“[B]ecause the alleged substantive petition defects now raised by Meyer in this

action were not specified in her protest, we need not consider these issues”).

{¶ 19} Even assuming that Phillips’s claim is properly before us, it lacks

merit. In State ex rel. Hanna v. Milburn (1959), 170 Ohio St. 9, 9 O.O.2d 332, 161

N.E.2d 891, we denied a writ of prohibition to prevent a board of elections and its

members and clerk from certifying and placing names of candidates who had put

the incorrect commencement term of the elective offices on their nominating

petitions. In so holding, we concluded that R.C. 3513.261 requires that a candidate

specify only whether he is running for a full term or an unexpired term and if it is

an unexpired term, he must indicate the date when the term ends:

“An examination of this statute shows that in no place is a candidate

required to set forth the date of the commencement of his term. It is only required

that the candidate specify whether he is running for a full term or an unexpired

term and if it is an unexpired term then he must set forth not the date of the

commencement of the term but rather the date when such term ends. The inclusion

in the present case of the date of the commencement of the terms constituted a mere

surplusage which in no way affected the validity of the petitions.” (Emphasis added

in part.) Id. at 13, 9 O.O.2d at 334, 161 N.E.2d at 894.

{¶ 20} Based on Hanna, once Wearsch designated in his nominating

petition and statement of candidacy that he desired to be a candidate for election to

the office of Council at Large in Avon for the full term to be held at the general

election on November 6, 2001, he did not need to put a date when the term ended.

This additional information—which related to candidates running for an unexpired

term—constituted mere surplusage that in no way affected the validity of the

petition. All of the available Council at Large seats had the same term of office.

{¶ 21} In contrasting the R.C. 3513.261 requirements to R.C. 3513.08,

which contains a strict declaration-of-candidacy requirement for judicial candidates

to specify a commencement of term date, we held:

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SUPREME COURT OF OHIO

“It is seen that the General Assembly recognized that because of the

staggered dates such information is necessary for an accurate description of the

office. No such necessity exists in the present case, as a mere description of the

office by title is sufficient.

“Where a public office is of such a nature that in accurately describing it it

is necessary to state not only the title but also the time of its commencement, then

failure to accurately state the date of commencement of the term will invalidate a

nominating petition. On the other hand, where the public office sought is of such a

nature that it may be accurately described without pin pointing the date of the

commencement of the term, a slight error in the insertion of the date which does

not mislead the signers of the petition does not invalidate the petition.” Id. at 14, 9

O.O.2d at 334, 161 N.E.2d at 895.

{¶ 22} Similarly, under R.C. 3513.261, the public office sought by Wearsch

is accurately described by noting that it is for a full term without specifying the end

of the term. The term-ending dates are not required to distinguish between races.

There is also no evidence that term dates added by Wearsch misled petition signers

so that electors would not have signed the petition if they had known of the correct

ending date for the full term sought by Wearsch. This case is not comparable to

State ex rel. Wiethe v. Hamilton Cty. Bd. of Elections (1954), 98 Ohio App. 89, 57

O.O. 181, 128 N.E.2d 121, cited by Phillips, because in that case, the person

seeking the elective office stated that he was a candidate for a precinct office instead

of a ward office.

{¶ 23} Finally, Phillips claims that he is entitled to the writ because the

board did not properly set the protest hearing under R.C. 3513.263, which provides

that “[u]pon the filing of such protests, the election officials with whom it is filed

shall promptly fix the time and place for hearing it.” The purpose, however, of the

timing requirements of R.C. 3513.263 is to have election officials act promptly;

they are not designed to render invalid an otherwise valid petition nor to give

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January Term, 2001

validity to an invalid petition when not acted upon within the proper time. See,

e.g., State ex rel. Svete v. Geauga Cty. Bd. of Elections (1965), 4 Ohio St.2d 16,

17, 33 O.O.2d 139, 140, 212 N.E.2d 420, 421 (“The mere failure of the board to

declare the petition void within the statutory time does not render the petition valid

since the statute does not state that the petition shall be valid if not declared void

by the board within the time named in the statute”); State ex rel. Hinkle v. Franklin

Cty. Bd. of Elections (1991), 62 Ohio St.3d 145, 150, 580 N.E.2d 767, 771. Phillips

cites no applicable authority to the contrary.

{¶ 24} Based on the foregoing, the board of elections neither abused its

discretion nor clearly disregarded R.C. 3513.261 in denying Phillips’s protest. No

vital public purpose or public interest is served by denying Wearsch’s candidacy

here, and we “must avoid unduly technical interpretations that impede the public

policy favoring free, competitive elections.” State ex rel. Ruehlmann v. Luken

(1992), 65 Ohio St.3d 1, 3, 598 N.E.2d 1149, 1151; cf. Stern v. Cuyahoga Cty. Bd.

of Elections (1968), 14 Ohio St.2d 175, 180, 43 O.O.2d 286, 289, 237 N.E.2d 313,

317 (“Absolute compliance with every technicality should not be required in order

to constitute substantial compliance, unless such complete and absolute

conformance to each technical requirement of the printed form serves a public

interest and a public purpose”). Therefore, Phillips has not established his

entitlement to the requested extraordinary relief in prohibition and we deny the writ.

Judgment accordingly.

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

LUNDBERG STRATTON, JJ., concur.

__________________

Phillips & Co., L.P.A., and Gerald W. Phillips, pro se.

Gregory A. White, Lorain County Prosecuting Attorney, and Gerald A.

Innes, Assistant Prosecuting Attorney, for respondent.

__________________

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