The opinion
[This decision has been published in Ohio Official Reports at 97 Ohio St.3d 216.]
WHITMAN v. HAMILTON COUNTY BOARD OF ELECTIONS ET AL.
[Cite as Whitman v. Hamilton Cty. Bd. of Elections, 2002-Ohio-5923.]
Elections—Writs of prohibition and mandamus sought to prevent Hamilton County
Board of Elections and Secretary of State from placing Republican Party’s
candidate for judge of Court of Common Pleas of Hamilton County on the
November 5, 2002 election ballot—Mandamus complaint dismissed and
writ of prohibition denied, when.
(No. 2002-1700—Submitted October 25, 2002—Decided October 30, 2002.)
IN PROHIBITION AND MANDAMUS.
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Per Curiam.
{¶1} In February 2002, Frederick D. Nelson filed a declaration of candidacy
and a petition for the Republican Party nomination for judge of the Court of
Common Pleas of Hamilton County, Ohio, for the full term commencing February
10, 2003. Nelson subsequently won the May 7, 2002 primary election and is the
Republican Party candidate for that judgeship in the November 5, 2002 general
election. Relator, Bruce B. Whitman, is the Democratic Party candidate in the same
election.
{¶2} On August 14, 2002, Whitman filed a written protest challenging
Nelson’s candidacy with respondent Hamilton County Board of Elections. In his
protest, Whitman claimed that Nelson did not meet the eligibility criteria of R.C.
2301.01 because Nelson will not have practiced law in Ohio for at least six years
preceding the commencement of his term if he is elected judge. At a hearing before
the board, Nelson argued that the protest should be dismissed as untimely.
{¶3} On September 16, 2002, the board of elections deadlocked two-to-two
on the motion to dismiss Whitman’s protest. On September 30, 2002, the board
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submitted the matter to respondent Secretary of State Kenneth Blackwell pursuant
to R.C. 3501.11(X).
{¶4} On September 30, 2002, the Secretary of State dismissed Whitman’s
protest. The Secretary of State agreed with Nelson that the protest was not timely
filed.
{¶5} On October 3, 2002, Whitman filed this action for a writ of prohibition
or, in the alternative, a writ of mandamus to prevent the board and the Secretary of
State from placing Nelson’s name on the November 5, 2002 election ballot, and if
already placed, to strike his name from the ballot. Respondents filed answers, and
the parties filed evidence and briefs pursuant to the expedited schedule in
S.Ct.Prac.R. X(9).
{¶6} This cause is now before the court for a consideration of the merits.
{¶7} Whitman requests writs of prohibition and mandamus to prevent the
board of elections and the Secretary of State from placing Nelson’s name on the
November 5, 2002 election ballot.
Mandamus
{¶8} Whitman’s mandamus claim is an ill-disguised request for prohibitory
injunctive relief: to prevent Nelson’s candidacy at the November 5, 2002 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. Phillips v. Lorain Cty. Bd. of
Elections (2001), 93 Ohio St.3d 535, 537, 757 N.E.2d 319, quoting State ex rel.
Grendell v. Davidson (1999), 86 Ohio St.3d 629, 634, 716 N.E.2d 704.
{¶9} Like the relator in State ex rel. Cunningham v. Amer Cunningham Co.,
L.P.A. (2002), 94 Ohio St.3d 323, 324, 762 N.E.2d 1012, Whitman attempts to
couch his claim in terms of compelling affirmative duties on the part of
respondents—to remove Nelson’s name from the ballot if it has already been placed
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on it. But since the manifest objective of his claim is to prohibit Nelson’s
candidacy, mandamus is as inappropriate as it was in Cunningham.
{¶10} Therefore, we lack jurisdiction over Whitman’s mandamus claim,
and as in comparable expedited election cases, we dismiss it. Phillips, 93 Ohio
St.3d at 537, 757 N.E.2d 319; State ex rel. Youngstown v. Mahoning Cty. Bd. of
Elections (1995), 72 Ohio St.3d 69, 70-71, 647 N.E.2d 769.
Prohibition
{¶11} In extraordinary actions challenging the decisions of the Secretary of
State and boards of elections, the standard is whether they engaged in fraud,
corruption, or abuse of discretion, or acted in clear disregard of applicable legal
provisions. See, e.g., State ex rel. Kelly v. Cuyahoga Cty. Bd. of Elections (1994),
70 Ohio St.3d 413, 414, 639 N.E.2d 78; State ex rel. Herman v. Klopfleisch (1995),
72 Ohio St.3d 581, 583, 651 N.E.2d 995. There is no allegation of fraud or
corruption here. Consequently, the dispositive issue is whether the Secretary of
State abused his discretion or clearly disregarded applicable law in dismissing
Whitman’s protest as untimely.
{¶12} The Secretary of State neither abused his discretion nor clearly
disregarded applicable law in holding that Whitman’s protest was untimely and that
at the time of the protest, the board of elections lacked authority to consider sua
sponte Nelson’s qualifications under R.C. 2301.01. “County boards of elections
are of statutory creation, and the members thereof in the performance of their duties
must comply with applicable statutory requirements.” State ex rel. Babcock v.
Perkins (1956), 165 Ohio St. 185, 187, 59 O.O. 258, 134 N.E.2d 839. R.C. 3501.39
governs pre-election protests concerning petitions and candidacies in election
matters by providing:
{¶13} “(A) The secretary of state or a board of elections shall accept any
petition described in section 3501.38 of the Revised Code unless one of the
following occurs:
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{¶14} “(1) 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.
{¶15} “(2) 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 violates any
requirement established by law.
{¶16} “(3) The candidate’s candidacy or the petition violates the
requirements of this chapter, Chapter 3513. of the Revised Code, or any other
requirements established by law.”
{¶17} R.C. 3501.39(A)(1) requires a hearing on a written protest against
any petition or candidacy, at which election officials can determine the validity of
the petition “in accordance with any section of the Revised Code providing a protest
procedure.” R.C. 3513.05, which relates to declarations of candidacy and petitions
in primary elections, governs the applicable statutory protest procedure here. That
statute provides that these protests must be filed by any qualified elector who is a
member of the same political party as the candidate and is eligible to vote at the
primary election “not later than four p.m. of the sixty-fourth day before the day of
the primary election.” Whitman is not a member of Nelson’s political party, and
neither he nor anybody else filed a timely protest against Nelson’s candidacy on
the issue of his experience pursuant to R.C. 3513.05 and 3501.39(A)(1).
{¶18} Furthermore, Whitman “cannot rely on the protest procedure in R.C.
3501.39(A)(2), which contains no time requirement, to circumvent the specific
statutory protest procedure of R.C. 3513.05, as incorporated in R.C.
3501.39(A)(1).” State ex rel. Harbarger v. Cuyahoga Cty. Bd. of Elections (1996),
75 Ohio St.3d 44, 46, 661 N.E.2d 699.
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{¶19} Moreover, the board lacked authority under R.C. 3501.39(A)(3) to
invalidate sua sponte Nelson's petition and candidacy at the time that Whitman filed
his protest. Under R.C. 3501.39(B), “[a] board of elections shall not invalidate any
declaration of candidacy * * * under division (A)(3) of this section after the fiftieth
day prior to the election at which the candidate seeks nomination to office, if the
candidate filed a declaration of candidacy * * * .” The board thus lacked authority
to consider the merits of Whitman’s challenge either sua sponte or on the protest
after the primary election. See Harbarger, 75 Ohio St.3d at 46, 661 N.E.2d 699;
see, also, State ex rel. Klein v. Cuyahoga Cty. Bd. of Elections (1995), 102 Ohio
App.3d 124, 127, 656 N.E.2d 1031 (“Under R.C. Chapter 3513 the time specified
for making a protest to a person’s candidacy is up to sixty-four days before the
primary. * * * After that time the board of elections has no duty to consider
protests.”).
{¶20} Whitman relies on State ex rel. Carr v. Cuyahoga Cty. Bd. of
Elections (1992), 63 Ohio St.3d 136, 586 N.E.2d 73, and 2000 Ohio Atty.Gen.Ops.
No. 2000-033, to support his contention that boards of elections are empowered to
act on petitions regardless of the timeliness of the petition.
{¶21} Whitman’s reliance on these authorities is misplaced. Carr preceded
the amendment to R.C. 3501.39 that added the express prohibition in subsection
(B) against a board’s invalidating sua sponte any declaration of candidacy after the
50th day before the primary election at which the candidate seeks nomination to the
office. 1995 Am.Sub.H.B. No. 99, 146 Ohio Laws, Part I, 549, 619-620. And the
Attorney General’s opinion actually concluded, consistent with the Secretary of
State’s decision to dismiss the protest, that “[a]fter the primary election, a county
board of elections has no authority to remove from the general election ballot the
name of a candidate, who was elected at the primary election as a political party’s
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nominee for office * * * .”1 Paragraph one of the syllabus. In other words, “[a]ny
determination by a board of elections as to the validity of a person’s candidacy must
be made well before the primary election.” Id. at 2-206.
{¶22} Moreover, this conclusion is consistent with our duty to defer to the
Secretary of State’s interpretation of election law if it is subject to two different,
but equally reasonable, interpretations. Herman, 72 Ohio St.3d at 586, 651 N.E.2d
995.
{¶23} In fact, Whitman’s construction of the pertinent statutes is
unreasonable. Adopting Whitman’s interpretation would render R.C. 3501.39(B)
a nullity by having R.C. 2301.01 supersede it. R.C. 2301.01, however, does not
specify the procedure to raise a pre-election protest concerning the qualifications
contained in R.C. 2301.01, so R.C. 3501.39 and incorporated statutory provisions
like R.C. 3513.05 govern that procedure. See State ex rel. Gains v. Rossi (1999),
86 Ohio St.3d 620, 622, 716 N.E.2d 204 (“in interpreting related and co-existing
statutes, we must harmonize and accord full application to each of these statutes
unless they are irreconcilable and in hopeless conflict”); R.C. 1.47(B) (“In enacting
a statute, it is presumed that * * * [t]he entire statute is intended to be effective”).
{¶24} Finally, despite Whitman’s claims to the contrary, he has a legal
remedy should Nelson be elected and take office. Whitman could file a quo
warranto action to challenge Nelson’s right to hold office. See, e.g., Carr, 63 Ohio
St.3d at 138, 586 N.E.2d 73 (courts of common pleas and appellate courts may
decide what constitutes the practice of law for purposes of statutory qualifications
in quo warranto actions); see, also, State ex rel. Schenck v. Shattuck (1982), 1 Ohio
St.3d 272, 1 OBR 382, 439 N.E.2d 891. For example, in State ex rel. Peirce v.
Stark Cty. Bd. of Elections (1958), 168 Ohio St. 249, 250, 6 O.O.2d 339, 153 N.E.2d
1. The opinion was concerned with an allegation that a candidate was a classified employee engaged
in partisan political activity in violation of R.C. 124.57 at the time he filed his declaration of
candidacy and campaigned for office.
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393, we denied a writ of prohibition to prevent the candidacy of a person for
common pleas court judge who allegedly did not meet the requirement of R.C.
2301.01 of six years of practicing law. In so holding, we found that the relator’s
unexplained lack of diligence prevented the requested extraordinary relief, but
further noted that if the allegedly unqualified candidate was elected, “other
remedies will be available to relator.” Id.
{¶25} Therefore, Whitman is not entitled to the requested writ of
prohibition.
{¶26} Accordingly, we dismiss Whitman’s claim for a writ of mandamus
and deny the writ of prohibition.
Judgment accordingly.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
DOUGLAS, J., concurs in judgment only.
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DOUGLAS, J., concurring in judgment only.
{¶27} I concur in the judgment of the majority but for a reason different
from those set forth by the majority opinion. R.C. 3501.11(X) provides that in all
cases of a tie vote or a disagreement in the board of elections, the matter in
controversy shall be submitted to the Secretary of State, “who shall summarily
decide the question, and the secretary of state’s decision shall be final.” Thus, when
the Secretary of State made his decision, the matter was at an end.
{¶28} This provision could not be clearer, and, therefore, further discussion
by the majority in denying the requested writ is unwarranted. Accordingly, I concur
in the judgment only.
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Dinsmore & Shohl, L.L.P., and Mark A. Vander Laan, for relator.
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Michael K. Allen, Hamilton County Prosecuting Attorney, Gordon M.
Strauss and Edward J. Geiser, Assistant Prosecuting Attorneys, for respondent
Hamilton County Board of Elections.
Betty D. Montgomery, Attorney General, Arthur J. Marziale Jr. and
Elizabeth Luper Schuster, Assistant Attorneys General, for respondent Secretary of
State J. Kenneth Blackwell.
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