The opinion
[Cite as State ex rel. Murray v. Scioto Cty. Bd. of Elections, 127 Ohio St.3d 280, 2010-Ohio-
5846.]
THE STATE EX REL. MURRAY v. SCIOTO COUNTY BOARD OF ELECTIONS ET AL.
[Cite as State ex rel. Murray v. Scioto Cty. Bd. of Elections,
127 Ohio St.3d 280, 2010-Ohio-5846.]
Mandamus — Prohibition — Municipal elections — Mayoral recall — Sufficiency
of petition for recall — Mandamus not available when real nature of relief
requested is declaratory judgment or prohibitory injunction — Petition’s failure
to comply with requirements of R.C. 3501.38(E) immaterial when city charter
contains expressly conflicting parallel requirements — Board of elections did not
abuse discretion or disregard applicable law in determining that petition
contained sufficient valid signatures — Writ of prohibition denied.
(No. 2010-1963 — Submitted November 30, 2010 — Decided
December 2, 2010.)
IN MANDAMUS and PROHIBITION.
__________________
Per Curiam.
{¶ 1} This is an expedited election action for writs of mandamus and
prohibition to prevent respondents, the Scioto County Board of Elections and its
members, from conducting a December 7, 2010 special election on a mayoral
recall. Because the board of elections neither abused its discretion nor clearly
disregarded applicable law by determining that the recall petition contained a
sufficient number of valid signatures, we deny the writ of prohibition. We
dismiss the mandamus claim for lack of jurisdiction.
Facts
Recall Petition
{¶ 2} Relator, M. Jane Murray, is the mayor of the city of Portsmouth,
Ohio. On October 9, 2010, a petition seeking an election to recall the mayor was
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filed with the city. The petitioners sought the recall based on their claims against
the mayor specified in the petition:
{¶ 3} “EPA compliance issues.
{¶ 4} “Arbitrary/unlawful placement of traffic control devices.
{¶ 5} “Came out against the best hope for jobs and future security for
area families at the Piketon USEC facility by casting the only negative vote to
their plans.
{¶ 6} “Placing her own personal wants ahead of the other city employees
working under deplorable conditions in the city building by arbitrarily and
unlawfully contracting prior to taking office, and after taking office having
renovations done to the Mayor’s office without having funds authorized and
appropriated in accordance with the Ohio Revised Code and Portsmouth City
ordinances.
{¶ 7} “Failure to provide a budget for the city of Portsmouth in
accordance with the City Charter.
{¶ 8} “Making public remarks about persons that have resulted in three
lawsuits having been filed against her and the City of Portsmouth alleging slander
and libel.”
{¶ 9} The petition comprises 66 part-petitions containing a total of 1,368
signatures. Each part-petition includes a space for the circulator’s affidavit,
which provides:
{¶ 10} “I, ________________, being duly sworn, depose and say that I,
and I only personally circulated the foregoing petition paper and that all
signatures appended thereto were made in my presence and are the genuine
signatures of the persons whose names they purport to be.
“__________________
“Subscribed and sworn before me this _____ day of ___________, 20___.
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“__________________
“Notary Public
“(seal)”
{¶ 11} Each part-petition also included the following “notice”: “Whoever
commits election falsification is guilty of a felony of the fifth degree.”
{¶ 12} On part-petition 5, which contains seven signatures found by the
Portsmouth city clerk to be valid, the circulator signed the first blank of the
affidavit but failed to sign the second blank. For part-petition 2, the Portsmouth
city clerk credited 15 valid signatures even though it contained only 14 valid
signatures.
{¶ 13} On October 20, 2010, the city clerk certified the sufficiency of the
recall petition by finding that it contained 1,171 valid signatures, which exceeded
the 1,148 valid signatures required by Section 151 of the Portsmouth Charter1 for
a recall petition. On October 28, the Portsmouth City Council enacted Ordinance
No. 2010-69, which ordered that a special election on the mayoral recall be held
on December 7, 2010. The next day, the city clerk provided a certified copy of
the ordinance to the Scioto County Board of Elections.
Protest and Board of Elections Decision
{¶ 14} On October 29, Murray filed a protest with the board of elections
against the recall petition. Murray raised several grounds, including the
following:
{¶ 15} 1. “All part-petitions fail to contain a statement by the circulator
indicating the number of signatures on the part-petition as required by Sections
143 and 165 of the City of Portsmouth Charter (‘Charter’) and R.C. § 3501.38(E)
and are invalid.”
1. Section 151 of the Portsmouth Charter provides that for a recall petition to be sufficient, it
“must bear the signatures of qualified electors of the City equal in number to at least twenty-five
per centum (25%) of the electors who voted at the last preceding regular municipal election.”
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{¶ 16} 2. “All part-petitions fail to contain a statement by the circulator
as required by Sections 143 and 165 of the Charter and R.C. § 3501.38(E) that to
the best of the circulator’s knowledge and belief all signers were qualified to sign
the petition and are invalid.”
{¶ 17} 3. “Part-petition 5 is invalid because it is not signed by the
circulator as required by Sections 27, 143, and 165 of the Charter and R.C. §
3501.38.”
{¶ 18} 4. “The petition fails to contain the minimum number of valid
signatures of electors of the City of Portsmouth required by Section 151 of the
Charter for the question to be submitted to the voters.”
{¶ 19} On that same day, the board of elections issued a notice that a
hearing on the protest would be held on November 8. On November 5, 2010,
Murray supplemented her protest with several additional grounds, including that
the city clerk had mistakenly counted one invalid signature on part-petition 2 as
valid.
{¶ 20} Just before the board’s November 8 hearing on Murray’s protest
against the recall petition, the committee representing the recall petitioners filed
its own protest, claiming that the city clerk had erroneously stricken three
signatures from the petition. Murray objected to the board’s hearing of the recall
petitioners’ protest on that date due to the protest’s lack of timeliness. The board
decided not to consider the recall petitioners’ claim at the hearing, instead leaving
it in abeyance until the board’s November 17 regular meeting.
{¶ 21} At the November 8 board hearing on Murray’s protest, the parties
submitted sworn testimony and other evidence. The board sustained certain
grounds of Murray’s protest and invalidated an additional 16 petition signatures.
The board denied the remaining grounds of Murray’s protest, including those
previously set forth. The board concluded that the recall petition contained a total
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of 1,155 valid signatures, which still exceeded the minimum of 1,148 valid
signatures required for the December 7, 2010 special recall election.
Mandamus and Prohibition Case and Subsequent Board Meeting
{¶ 22} Four days later, on November 12, Murray filed this expedited
election action for writs of mandamus and prohibition to prevent the board of
elections and its members from submitting the mayoral recall to the electorate at
the December 7, 2010 special election. We issued an accelerated schedule for the
submission of an answer, evidence, and briefs. State ex rel. Murray v. Scioto Cty.
Bd. of Elections, 127 Ohio St.3d 1433, 2010-Ohio-5534, 936 N.E.2d 963.
{¶ 23} On November 17, at its regular meeting, the board of elections
corrected its tabulation of valid signatures in the recall petition by deducting the
additional signature the city clerk had mistakenly counted as valid on Part-
Petition 2, which was one of the grounds of Murray’s protest, and adding the three
signatures that the city clerk had previously stricken, which were the subject of
the recall committee’s November 8 protest. The board validated the three
additional signatures when it determined that they were the signatures of the
electors they purported to be. The board thus concluded that the correct number
of valid signatures on the recall petition was 1,157, which exceeded the 1,148
signatures required. The board made this determination without holding an
additional hearing.
{¶ 24} The board of elections and its members filed an answer, and the
parties submitted evidence and briefs.
{¶ 25} This cause is now before the court for our consideration of the
merits.
Legal Analysis
Mandamus
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{¶ 26} Murray requests a writ of mandamus to compel the board of
elections to sustain the specified grounds of her protest and to invalidate the recall
petition.
{¶ 27} “This court lacks jurisdiction over complaints in mandamus if the
allegations establish that the relator actually requests relief in the nature of a
declaratory judgment and a prohibitory injunction.” State ex rel. Knowlton v.
Noble Cty. Bd. of Elections, 126 Ohio St.3d 483, 2010-Ohio-4450, 935 N.E.2d
395, ¶ 29. “We have applied this jurisdictional rule to expedited election cases by
examining the complaint to determine whether it actually seeks to prevent, rather
than compel, official action.” State ex rel. Evans v. Blackwell, 111 Ohio St.3d
437, 2006-Ohio-5439, 857 N.E.2d 88, ¶ 20.
{¶ 28} Although some of the allegations and requests for relief in
Murray’s complaint are couched in terms of compelling affirmative duties, she
actually seeks (1) a declaratory judgment that the board erred in denying the
specified grounds of her protest and (2) a prohibitory injunction preventing the
recall election.
{¶ 29} Therefore, because Murray seeks relief in the nature of declaratory
judgment and prohibitory injunction, we lack jurisdiction to consider the merits of
her mandamus claim and therefore dismiss it. See Knowlton, at ¶ 31; State ex rel.
Stewart v. Clinton Cty. Bd. of Elections, 124 Ohio St.3d 584, 2010-Ohio-1176,
925 N.E.2d 601, ¶ 12.
Prohibition
{¶ 30} Murray also requests a writ of prohibition to prevent the board of
elections and its members from submitting the mayoral recall to the electorate.
To be entitled to the writ, Murray must establish that (1) the board of elections
and its members are about to exercise quasi-judicial power, (2) the exercise of that
power is unauthorized by law, and (3) denying the writ will result in injury for
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which no other adequate remedy exists in the ordinary course of law. State ex rel.
Eshleman v. Fornshell, 125 Ohio St.3d 1, 2010-Ohio-1175, 925 N.E.2d 609, ¶ 11.
{¶ 31} Murray established the first and third requirements for the writ
because the board of elections exercised quasi-judicial authority by ruling on her
protest after a hearing that included sworn testimony, and she lacks an adequate
remedy in the ordinary course of law given the proximity of the December 7
special election. Id. at ¶ 12.
{¶ 32} For the remaining requirement to establish entitlement to the
requested writ of prohibition, “[i]n extraordinary actions challenging the decisions
of * * * 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.” Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216,
2002-Ohio-5923, 778 N.E.2d 32, ¶ 11; State ex rel. Ross v. Crawford Cty. Bd. of
Elections, 125 Ohio St.3d 438, 2010-Ohio-2167, 928 N.E.2d 1082, ¶ 17.
{¶ 33} Murray claims that the board of elections abused its discretion and
clearly disregarded applicable law, including R.C. 3501.38(E) and certain
provisions of the Portsmouth Charter, by not sustaining certain grounds of her
protest and invalidating the recall petition.
R.C. 3501.38(E)(1)
{¶ 34} Murray first contends that the petition was defective because each
part-petition did not comply with R.C. 3501.38, which provides:
{¶ 35} “All declarations of candidacy, nominating petitions, or other
petitions presented to or filed with the secretary of state or a board of elections or
with any other public office for the purpose of becoming a candidate for any
nomination or office or for the holding of an election on any issue shall, in
addition to meeting the other specific requirements prescribed in the sections of
the Revised Code relating to them, be governed by the following rules:
{¶ 36} “* * *
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{¶ 37} “(E)(1) On each petition paper, the circulator shall indicate the
number of signatures contained on it, and shall sign a statement made under
penalty of election falsification that the circulator witnessed the affixing of every
signature, that all signers were to the best of the circulator’s knowledge and belief
qualified to sign, and that every signature is to the best of the circulator’s
knowledge and belief the signature of the person whose signature it purports to be
or of an attorney in fact acting pursuant to section 3501.382 of the Revised Code.”
{¶ 38} Murray contends that the petition did not comply with R.C.
3501.38(E)(1), because each circulator statement (1) did not “indicate the number
of signatures contained on it” and (2) did not specify that “all signers were to the
best of the circulator’s knowledge and belief qualified to sign.”
{¶ 39} Noncompliance with either of these statutory requirements
normally requires invalidation of the part-petitions. See, e.g., Rust v. Lucas Cty.
Bd. of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766, ¶ 11-13
(board of elections did not err in invalidating petition because circulator
statements specified numbers less than the actual numbers of signatures contained
on the part-petitions); State ex rel. Commt. for Referendum of Lorain Ordinance
No. 77-01 v. Lorain Cty. Bd. of Elections, 96 Ohio St.3d 308, 2002-Ohio-4194,
774 N.E.2d 239, ¶ 49 (“R.C. 3501.38(E) demands strict compliance”).
{¶ 40} Nevertheless, “[i]n matters of local self-government, if a portion of
a municipal charter expressly conflicts with a parallel state law, the charter
provisions will prevail.” State ex rel. Lightfield v. Indian Hill (1994), 69 Ohio
St.3d 441, 442, 633 N.E.2d 524; Sections 3 and 7, Article XVIII, Ohio
Constitution. Therefore, although we will construe municipal charters to give
effect to all separate provisions and to harmonize them with statutory provisions
whenever possible, see State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122
Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 31, we will not do so when
there is a conflict. State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St.3d 472,
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475, 764 N.E.2d 971; see also Portsmouth Charter, Sections 143 (“the provisions
of the general election laws of the State shall apply to all such elections except as
otherwise provided by this Charter” [emphasis added]) and 165 (“All general
laws of the State applicable to municipal corporations, now or hereafter enacted,
and which are not in conflict with the provisions of this Charter * * * shall be
applicable to this City” [emphasis added]).
{¶ 41} Notwithstanding the requirements of R.C. 3501.38(E)(1) detailing
the contents of a circulator statement for each petition paper, Section 27 of the
Portsmouth Charter provides otherwise by requiring that each petition paper
instead include the specified circulator affidavit, which affidavit must be strictly
construed:
{¶ 42} “The affidavit attached to each petition paper shall be as follows:
{¶ 43} “State of Ohio,
{¶ 44} “County of Scioto, SS.
{¶ 45} “I, __________________, being duly sworn, depose and say that I,
and I only personally circulated the foregoing petition paper and that all the
signatures appended thereto were made in my presence and are the genuine
signatures of the persons whose names they purport to be.
“Signed ___________________
“Subscribed and sworn to before me this ____ day of ___________, 19__
“_________________________
“Notary Public
{¶ 46} “The foregoing affidavit shall be strictly construed and any affiant
convicted of swearing falsely as regards any particular thereof shall be guilty of
perjury.”
{¶ 47} In effect, the specific Section 27 circulator affidavit for municipal
initiative, referendum, and recall petitions in Portsmouth stands in lieu of the
general state-law requirement of an R.C. 3501.38(E)(1) circulator statement for
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petitions. Section 27 of the Portsmouth Charter requires that each petition paper
include a circulator affidavit made under penalty of perjury, a felony of the third
degree, see R.C. 2921.11(F), that states that (1) the circulator personally
circulated the petition paper, (2) all signatures appended thereto were made in the
circulator’s presence, and (3) the signatures are the genuine signatures of the
persons whose names they purport to be.
{¶ 48} The charter provision requiring strict construction of the affidavit
evinces an unmistakable intent on the part of the Portsmouth electors who adopted
it that no comparable state-law requirement regarding the circulator’s statement
on petitions is applicable. The affidavit required by the charter serves the same
purpose as the statement required by statute — it prevents fraud by supplying the
circulator’s attestation that the circulator witnessed each of the signatures on the
part-petition and that the signatures are genuine. In fact, until it was amended in
1974, R.C. 3501.38(E) likewise required a circulator affidavit instead of a
circulator statement on each part-petition. See 135 Ohio Laws, Part II, 799. The
charter provision, by its own terms, demands strict construction of the specified
form of the circulator affidavit and prevails over the conflicting state statute.
{¶ 49} This result is consistent with precedent. In Ditmars, 94 Ohio St.3d
at 475, 764 N.E.2d 971, we held that because Section 42 of the Columbus Charter
“requires circulator affidavits and [R.C. 3501.38(E)] does not * * *, the charter
provision prevails.”
{¶ 50} Murray’s reliance on our decision in Finkbeiner, 122 Ohio St.3d
462, 2009-Ohio-3657, 912 N.E.2d 573, to claim that the circulator-affidavit
requirement specified in Section 27 of the Portsmouth Charter does not conflict
with the circulator-statement requirement of R.C. 3501.38(E), is misplaced. In
Finkbeiner, we held that a recall petition that failed to include the R.C. 3501.38(J)
election-falsification statement was defective because nothing in the Toledo
Charter conflicted with that provision. Finkbeiner is distinguishable because in
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that case, the recall provisions of the Toledo Charter and other general petition-
form requirements of the charter were silent on the requirement of an election-
falsification statement. Id. at ¶ 34. Further, Toledo voters had repealed the
specific recall-petition requirements in 1934 and had rejected a 1959 amendment
to reinstate those requirements. Id. No comparable facts are present here.
{¶ 51} Notably, the Toledo Charter (1) did not specify a form for petitions
that explicitly required strict construction and (2) did not expressly exclude the
election-falsification statement. By contrast, Section 27 of the Portsmouth
Charter specifies the complete form for the circulator affidavit for petitions and
mandates strict construction of that form. And the mere fact that the petition here
also included the R.C. 3501.38(J) election-falsification statement does not alter
our conclusion. Although that statement would not apply to a petition circulator,
who would be governed by the charter’s requirement of an affidavit, subjecting
the circulator to perjury for swearing falsely, R.C. 2921.13(A)(6), it would still be
effective for any noncirculator committing election falsification regarding the
petition.
{¶ 52} Further, Murray’s reliance on various other cases like Rust and
State ex rel. Macko v. Monzula (1976), 48 Ohio St.2d 35, 2 O.O.3d 129, 356
N.E.2d 493, is also misplaced because these cases do not address any claimed
conflict between R.C. 3501.38(E) and municipal charter provisions. Although
Murray may disagree with whether the charter provision satisfies the fraud-
prevention objective as well as its statutory counterpart, it was within the
municipality’s constitutional home-rule authority to resolve such policy concerns
by adopting its own specific provision. “[N]either the wisdom nor the desirability
of these [charter] provisions is subject to judicial review.” State ex rel. Fattlar v.
Boyle (1998), 83 Ohio St.3d 123, 127, 698 N.E.2d 987; see also State ex rel.
Cater v. N. Olmsted (1994), 69 Ohio St.3d 315, 324, 631 N.E.2d 1048, quoting
Fuldauer v. Cleveland (1972), 32 Ohio St.2d 114, 118, 61 O.O.2d 374, 290
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N.E.2d 546 (“the feasibility or wisdom of charter provisions is ‘not a matter for
our consideration’”).
{¶ 53} Therefore, the board of elections neither abused its discretion nor
clearly disregarded applicable law by denying Murray’s protest premised on the
recall petition’s purported failure to comply with R.C. 3501.38(E)(1).
Mathematical Error
{¶ 54} The board of elections concedes that it abused its discretion and
clearly disregarded applicable law by initially denying Murray’s protest
concerning part-petition 2. The clerk determined that the part-petition contained
15 valid signatures, but she erroneously counted as valid one of the signatures that
had been crossed out. The board later corrected this mistake at its November 17
meeting. Therefore, insofar as Murray seeks a writ of mandamus to compel the
board to correct this mistake, her claim has now been rendered moot. See State ex
rel. Law Office of Montgomery Cty. Public Defender v. Rosencrans, 111 Ohio
St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 15 (“Subsequent performance of
the act requested in the mandamus action generally renders the action moot”);
State ex rel. Dehler v. Kelly, 123 Ohio St.3d 297, 2009-Ohio-5259, 915 N.E.2d
1223, ¶ 1 (“Mandamus will not compel the performance of an act that has already
been performed”).
Section 27 Signature Requirement
{¶ 55} Murray finally contends that the board of elections erred in failing
to sustain her protest against part-petition 5 because it was not signed by the
circulator in the blank required by Section 27 of the Portsmouth Charter. Part-
petition 5 contained seven valid signatures.
{¶ 56} At its regular meeting on November 17, which occurred after this
case was instituted but before the board of elections and its members filed their
answer, the board of elections revised its previous determination that the recall
petition contained 1,155 valid signatures by deducting from this total the signature
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on part-petition 2 that Murray had protested and by adding three signatures that
had been invalidated by the city clerk and had been the subject of the recall
committee’s November 8 protest. This resulted in the board’s November 17
finding that the recall petition contained 1,157 valid signatures, which exceeded
the minimum of 1,148 valid signatures required for the recall election by nine
signatures. Although this fact was not evident at the time that Murray
commenced this expedited election case, we consider it because it is relevant to
Murray’s claims. See, e.g., State ex rel. Brown v. Lemmerman, 124 Ohio St.3d
296, 2010-Ohio-137, 921 N.E.2d 1049, ¶ 12, quoting State ex rel. Portage Lakes
Edn. Assn., OEA/NEA v. State Emp. Relations Bd., 95 Ohio St.3d 533, 2002-
Ohio-2839, 769 N.E.2d 853, ¶ 54 (“ ‘in mandamus actions, a court is not limited
to considering the facts and circumstances at the time a proceeding is instituted
but should consider the facts and conditions at the time it determines whether to
issue a peremptory writ’ ”).
{¶ 57} In her reply brief, Murray asserts that the board of elections abused
its discretion and clearly disregarded applicable law by granting the recall
committee’s protest and validating the three signatures that the clerk had
invalidated. She claims that the board erred by considering the merits of the
untimely protest without holding a hearing. Murray’s initial merit brief, however,
which was filed six days after the board’s November 17 revision of the number of
total valid signatures and five days after the board of elections and its members
relied on this decision in their answer, includes no argument concerning this
contention. The parties’ stipulated facts, which were filed on the same date as
Murray’s initial merit brief, also included evidence of the board’s November 17
revised determination.
{¶ 58} Because Murray could have raised this argument in her initial
merit brief but failed to do so, we do not address this claim. See State ex rel.
Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 61
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(relators in expedited election case were forbidden to raise new argument in their
reply brief that was not raised in their initial merit brief); State ex rel. Ohio
Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d
410, ¶ 61 (court, in an election-related writ case, will not address request for relief
that was raised in relators’ complaint and resuscitated in reply brief, but was not
included in their initial merit brief).
{¶ 59} Moreover, even if Murray’s contention concerning part-petition 5
is correct, the number of valid petition signatures would be reduced from 1,157 to
1,150, which is still more than the 1,148 signatures required for the recall
election. “[W]e will not issue advisory opinions, and this rule applies equally to
election cases.” State ex rel. Barletta v. Fersch, 99 Ohio St.3d 295, 2003-Ohio-
3629, 791 N.E.2d 452, ¶ 22; State ex rel. LetOhioVote.org v. Brunner, 125 Ohio
St.3d 420, 2010-Ohio-1895, 928 N.E.2d 1066, ¶ 22.
{¶ 60} Murray finally claims that based on the specified grounds of her
protest, she has thus established that the board of elections should have
invalidated the recall petition because the petition failed to contain a sufficient
number of valid signatures. But for the reasons previously set forth, she has failed
to establish either an abuse of discretion or a clear disregard of applicable law by
the board of elections that would result in an insufficient number of signatures on
the recall petition.
{¶ 61} Therefore, Murray is not entitled to the requested extraordinary
writ of prohibition to prevent the recall election. We deny the writ of prohibition
and dismiss the mandamus claim.
Judgment accordingly.
PFEIFER, ACTING C.J., and BROGAN, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
JAMES A. BROGAN, J., of the Second Appellate District, sitting for BROWN,
C.J.
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__________________
McTigue & McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis, J.
Corey Colombo, and Michael P. Stinziano, for relator.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Chadwick K.
Sayre, Assistant Prosecuting Attorney, for respondents.
______________________
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