State Ex Rel. Coughlin v. Summit County Board of Elections

[Cite as State ex rel. Coughlin v. Summit Cty. Bd. of Elections, 136 Ohio St.3d 371, 2013-Ohio-

3867.]

THE STATE EX REL. COUGHLIN v. SUMMIT COUNTY BOARD OF ELECTIONS.

[Cite as State ex rel. Coughlin v. Summit Cty. Bd. of Elections,

136 Ohio St.3d 371, 2013-Ohio-3867.]

Mandamus—Writ to compel board of elections to place a name on general-

election ballot for municipal clerk of court—Candidate on nonpartisan

ballot is not required to disaffiliate from party—Writ granted.

(No. 2013-1264—Submitted August 30, 2013—Decided September 9, 2013.)

IN MANDAMUS.

____________________

Per Curiam.

{¶ 1} This is an expedited election action by relator, Kevin J. Coughlin,

for a writ of mandamus to compel respondent, the Summit County Board of

Elections, to place his name on the November 5, 2013 ballot as a candidate for

Stow Municipal Court clerk of courts. Because the board disregarded clearly

established law by refusing to place Coughlin’s name on the ballot, we grant the

writ.

Facts

{¶ 2} On May 6, 2013, one day before the primary, Coughlin filed a

nominating petition to run for the office of clerk of courts for the Stow Municipal

Court in the November 5, 2013 general election. The parties agree that Coughlin

is a qualified elector and satisfies the statutory requirements to run for the Stow

Municipal Court clerkship.

{¶ 3} On July 11, 2013, an elector named Donald Nelsch filed a protest

against Coughlin’s nominating petition. The protest letter challenged Coughlin’s

ability to run as either a nonpartisan or independent candidate by setting out

Coughlin’s long history of association with the Republican Party. The letter

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alleged that Coughlin had taken no steps to disaffiliate from the Republican Party

before submitting his nominating petition.

{¶ 4} Coughlin responded in writing and at the board’s July 15, 2013

protest hearing. Coughlin argued that he was running as a nonpartisan candidate,

not an independent candidate, and that the requirement of disaffiliation applies

only to independent candidates.

{¶ 5} At the close of the hearing, the board voted unanimously to sustain

the protest and deny Coughlin’s petition.

{¶ 6} Coughlin commenced this expedited election action for a writ of

mandamus on August 8, 2013, to compel the board to place his name on the

general-election nonpartisan ballot. The board has filed an answer, and the parties

have filed briefs under the accelerated schedule in S.Ct.Prac.R. 12.08(A).

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

Analysis

Preliminary Matters

{¶ 8} At the outset, we reject the board’s claim that this action is barred

by laches. Laches may bar relief in an election-related matter if the person

seeking relief fails to act with “ ‘requisite diligence.’ ” State ex rel. Voters First

v. Ohio Ballot Bd., 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 16,

quoting Smith v. Scioto Cty. Bd. of Elections, 123 Ohio St.3d 467, 2009-Ohio-

5866, 918 N.E.2d 131, ¶ 11.

{¶ 9} “The elements of laches are (1) unreasonable delay or lapse of time

in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual

or constructive, of the injury or wrong, and (4) prejudice to the other party.” State

ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 145, 656

N.E.2d 1277 (1995).

{¶ 10} The board of elections denied Coughlin’s petition on July 15,

2013. According to the board, an audiotape of the proceedings was available to

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Coughlin by July 23, 2013, and a written transcript was available by August 2,

2013. The board alleges that Coughlin did not act diligently because he did not

file suit until August 8, 2013.

{¶ 11} The board claims that it has suffered prejudice as a result of

Coughlin’s delay because August 8, 2013, was less than 90 days from the

November 5, 2013 election, so the case fell under the expedited election

provisions of S.Ct.Prac.R. 12.08. This court has held that the element of

prejudice is satisfied where the delay causes the case to become an expedited

election case, which restricts the time the board of elections has to prepare and

defend the case. State ex rel. Willke v. Taft, 107 Ohio St.3d 1, 2005-Ohio-5303,

836 N.E.2d 536, ¶ 18.

{¶ 12} However, the board’s own evidence demonstrates that Coughlin

did act diligently. He made a public-records request for a transcript of the board

hearing on July 16, 2013, the day after the hearing. The board did not notify

Coughlin that the transcript was ready until August 1, 2013. He picked up the

transcript the next day, Friday, August 2, 2013, and filed his complaint four

business days later.

{¶ 13} Although the board characterizes Coughlin’s actions as a three-

week delay, most of that delay is attributable to the board. Even in the elections

context, a delay in filing may be reasonable when a relator is diligently trying to

obtain documents from a board of elections. State ex rel. Owens v. Brunner, 125

Ohio St.3d 130, 2010-Ohio-1374, 926 N.E.2d 617, ¶ 18.

{¶ 14} The chronology of events does not demonstrate a deliberate plan to

delay filing until less than 90 days before the election. Rather, the timing of the

complaint was dictated by the board of elections, which took more than two

weeks to provide the necessary transcript. To the extent the board now claims it

has been prejudiced, it must bear much of the responsibility for that delay.

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{¶ 15} Laches does not bar this claim. Coughlin acted with diligence by

promptly demanding a certified transcript and filing suit five business days after

the transcript became available. This result is consistent with the “ ‘fundamental

tenet of judicial review in Ohio,’ ” which is “ ‘that courts should decide cases on

their merits.’ ” Voters First, 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d

119, ¶ 21, quoting State ex rel. Becker v. Eastlake, 93 Ohio St.3d 502, 505, 756

N.E.2d 1228 (2001).

{¶ 16} We likewise reject the board’s assertion that Coughlin’s claim is

barred by unclean hands. The doctrine of unclean hands requires a showing that

the party seeking relief engaged in reprehensible conduct with respect to the

subject matter of the action. Goldberger v. Bexley Properties, 5 Ohio St.3d 82,

84-85, 448 N.E.2d 1380 (1983). The board argues that Coughlin should not be

able to take advantage of legislation he drafted while serving in the General

Assembly. We reject the board’s argument that it is reprehensible conduct for

Coughlin to rely on a duly enacted statute in later litigation.

Mandamus

{¶ 17} For a writ of mandamus to issue, Coughlin must establish a clear

legal right to have his name placed on the November 5, 2013 ballot, a

corresponding clear legal duty on the part of the board of elections and its

members to place his name on the ballot, and the lack of an adequate remedy at

law. State ex rel. Allen v. Warren Cty. Bd. of Elections, 115 Ohio St.3d 186,

2007-Ohio-4752, 874 N.E.2d 507, ¶ 8. Coughlin must prove these requirements

by clear and convincing evidence. State ex rel. Orange Twp. Bd. of Trustees v.

Delaware Cty. Bd. of Elections, 135 Ohio St.3d 162, 2013-Ohio-36, 985 N.E.2d

441, ¶ 14.

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{¶ 18} Because of the proximity of the November 5 election, and

specifically the September 21, 2013 deadline for finalizing UOCAVA ballots,1

Coughlin has established that he lacks a remedy in the ordinary course of the law.

State ex rel. Ohio Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-

1845, 928 N.E.2d 410, ¶ 27.

Clear Legal Right and Clear Legal Duty

{¶ 19} Coughlin claims that the board disregarded applicable law by

refusing to place his name on the November 5, 2013 nonpartisan ballot for

municipal court clerk.

{¶ 20} R.C. 1901.31 sets forth the duties of a municipal court clerk and

the manner by which candidates are nominated and elected. In most jurisdictions,

including Stow, candidates for the office of clerk of courts must be nominated and

elected in the same manner as provided in R.C. 1901.07 for the nomination and

election of municipal court judges. R.C. 1901.31(A)(1)(a).

{¶ 21} Candidates for municipal court judge must appear on a nonpartisan

ballot in the general election. R.C. 1901.07(A). Thus, by operation of R.C.

1901.31(A)(1)(a), the names of candidates for municipal clerk of courts must also

appear on a nonpartisan ballot in a general election.

{¶ 22} Candidates for municipal court judge or clerk of courts may be

nominated in one of two ways: either by nominating petition or by primary

election. R.C. 1901.07(B). Each method has a different filing deadline.

Candidates seeking nomination through primary election must file declarations of

candidacy and petitions no later than the 90th day before the primary election. Id.

Candidates seeking nomination by way of nominating petitions must file their

1. Pursuant to R.C. 3511.04(B), the board of elections must begin providing absent-voter ballots

upon request to certain uniformed service members, their families, and other citizens under the

Uniformed and Overseas Citizens Absentee Voters Act (“UOCAVA”) no later than 45 days before

the general election.

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nominating petitions no later than the day before the primary. Id. Coughlin

employed the latter deadline.

{¶ 23} The Nelsch protest letter argued that Coughlin could not in good

faith hold himself out as an independent or nonpartisan because he had not ceased

conducting himself as a Republican. Nelsch alleged that Coughlin was merely

trying to avoid running in the Republican primary. The board of elections

sustained the protest and denied Coughlin’s petitions.

{¶ 24} We begin by discussing the difference between nonpartisan and

independent. These two terms are not synonymous.

{¶ 25} R.C. 3505.04 provides that the names of nonpartisan candidates for

election to certain offices, including judicial office, shall be printed on a portion

of the ballot designated as the “nonpartisan ballot.” Political-party designations

are not permitted on the nonpartisan ballot. R.C. 3505.04, eighth paragraph. A

“nonpartisan” candidate is simply any candidate whose name is required by R.C.

3505.04 to be listed on the nonpartisan ballot. R.C. 3501.01(J).

{¶ 26} The Revised Code defines an “independent” candidate as “any

candidate who claims not to be affiliated with a political party, and whose name

has been certified on the office-type ballot at a general or special election through

the filing of a statement of candidacy and nominating petition, as prescribed in

section 3513.257 of the Revised Code.” R.C. 3501.01(I). If an affiliated

candidate wishes to run as an independent, the candidate must disaffiliate in good

faith from his or her political party. Morrison v. Colley, 467 F.3d 503 (6th

Cir.2006).

{¶ 27} Unlike independent candidates, candidates for nonpartisan office

are not required to disaffiliate from political parties. State ex rel. Allen v. Warren

Cty. Bd. of Elections, 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507,

¶ 18.

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{¶ 28} In simple terms, “nonpartisan” describes an office, a ballot, or a

race, nonaffiliation (i.e., being an independent) is a characteristic of candidates,

and party affiliation is a characteristic of candidates and voters.2

{¶ 29} R.C. 3501.01(I) requires independent candidates to meet the

requirements for nominating petitions in R.C. 3513.257. R.C. 3513.257 contains

requirements such as the number of valid signatures necessary on a qualifying

petition and the location where petitions are to be filed.

{¶ 30} Petitions submitted by candidates for municipal court judge must

also meet the requirements of R.C. 3513.257. R.C. 1901.07(B). And therefore,

by operation of R.C. 1901.31(A)(1)(a), candidates for clerk of court must also

meet these requirements.

{¶ 31} Thus, the board argues, since R.C. 3513.257 governs the petitions

of independent candidates, who must disaffiliate in order to run, and since

candidates for clerk must also satisfy R.C. 3513.257, it follows that clerk

candidates must be disaffiliated independents.

{¶ 32} However, R.C. 3513.257 does not create the disaffiliation

requirement. The obligation of independents to disaffiliate exists as part of the

statutory definition of an independent in R.C. 3501.01(I). There is no provision in

the Revised Code extending that disaffiliation requirement to candidates for

nonpartisan office.

2. A voter cannot register as an independent, except in the negative sense of not voting in partisan

primaries or signing partisan nominating petitions. The Revised Code contains no provision for

declaring party affiliation when one registers to vote, State ex rel. Young v. Gasser, 21 Ohio St.2d

253, 255, 257 N.E.2d 389 (1970), and the registration forms do not contain a space for that

information. Rather, party affiliation or membership is “that which [the voter] desires it to be

from time to time.” Id. at 257. Essentially, being “registered” as a Republican or Democrat

means nothing more than voting in that party’s primary, because the local boards of elections keep

records of that information.

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Although under R.C. 1901.07(B) nonpartisan candidates

for municipal court judge must have their petitions “conform to the

requirements provided for those petitions of candidacy contained

in section 3513.257 of the Revised Code,” which governs petition

requirements for independent candidates, nothing in R.C. 3513.257

requires that nonpartisan candidates be unaffiliated or disaffiliated

from a political party.

Allen, 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507, ¶ 18.

{¶ 33} As this court recognized in Allen, the fact that a candidate must

follow the same petition procedures as an independent candidate does not mean

that the candidate is an independent.

{¶ 34} Therefore, based on Allen, the board of elections erred when it

sustained the protest against Coughlin’s declaration of candidacy.

{¶ 35} The board disputes Coughlin’s contention that R.C.

1901.31(A)(1)(a) makes the procedures for nominating and electing clerks of

court the same in all respects as those for nominating and electing municipal

judges. However, the board does not explain which procedures in R.C. 1901.07

are applicable to clerk candidates, which aspects are not applicable, and why.

And specifically, the board does not explain why the two methods of nomination,

and their respective deadlines, are not part of the “manner” of nominating

municipal judges.

{¶ 36} The Summit County Board of Elections disregarded clearly

established law when it concluded that Coughlin had to disaffiliate or else seek

nomination through a partisan primary and that therefore his nominating petition

was untimely. For this reason, Coughlin has a clear legal right to have his name

on the ballot, the board has a clear legal duty to place his name on the ballot, and,

given the proximity of the election, Coughlin has no adequate remedy at law.

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Conclusion

{¶ 37} Based on the foregoing, Coughlin has established his entitlement to

the requested extraordinary relief. We grant a writ of mandamus to compel the

Summit County Board of Elections to place his name on the November 5, 2013

nonpartisan ballot as a candidate for Stow Municipal Court Clerk of Courts.

Writ granted.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur.

____________________

Donald S. Varian Jr., for relator.

Sherry Bevan Walsh, Summit County Prosecuting Attorney, John F.

Galonski, Deputy Chief, Civil Division, and Joseph M. Fantozzi, Chief Assistant

Prosecuting Attorney, for respondent.

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