State, Em Rel. Donofrio v. Henderson

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Jones, J.,

dissenting. The case appears before this court as an appeal on questions of law only. It is from an order of the Common Pleas Court of Mahoning County. In that court the appellant’s petition for writ of mandamus was dismissed for want of jurisdiction.

On February 2, 1965, Mr. Donofrio filed with the board of elections a nominating petition consisting of 53 papers and containing, in all, 736 signatures. The petition was intended to establish him as a candidate for the office ©f Judge of the Municipal Court of the city of Youngstown, Ohio, for the full term commencing January 2, 1966.

On July 15, 1965, the board notified Mr. Donofrio that his nominating petition had been rejected for the following reason: “Insufficient signatures.” On July 30,1965, Judge Don Hanni, an elector, filed a protest before the board of elections claiming, in substance, that there were additional invalid signatures contained in the Donofrio nominating petiton. Two days later Mr. Donofrio filed a petition for writ of mandamus in the Mahoning County Court of Common Pleas. He asked that court to order the election board to place his name on the ballot as above mentioned. After the protest hearing, the election board reduced the number of signatures

allowed;

there remained at that point only 327 valid signatures. Based on a second decision of the election board, Mr. Donofrio filed a supplemental petition for writ of mandamus. The petiton was dismissed by the trial court, and an appeal was timely filed in this court. It is agreed by both parties that 551 valid signatures are required in order that Mr. Donofrio may successfully have his name on the November 2 ballot.

Mr. Donofrio asks this court to do that which he honestly feels the trial court should have done and failed to do,

i.e.,

grant the writ of mandamus which would order the Board of Elections of Mahoning County to place his name on the ballot November 2, 1965.

The principles governing the issuance of this writ are the same as in those cases that are seemingly less dramatic and of less public interest. The law is quite explicit. There must be a clear right to the relief sought.

The trial court dismissed the petiton for the reason that the allegations, as set forth in the petiton, under the Ohio law, did

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not give the Common Pleas Court jurisdiction to review the election board’s multitudinous findings. The dismissal was based upon the reasoning that the allegations in the petition did not specifically allege that the acts of the board of elections were performed capriciously and in bad faith. The court noted that the allegations in the petition must be specific as to the facts constituting the alleged abuse of discretion.

(State, ex rel. Maxwell, Pros. Atty.,

v.

Schneider,

103 Ohio St. 492 , at 498;

Sullivan

v.

State, ex rel. O’Connor,

125 Ohio St. 387 .)

It is from this dismissal order that Mr. Donofrio appeals and assigns as error:

“The court below erred in refusing to assume jurisdiction and to issue a writ of mandamus requiring respondent to place relator’s name on the ballot for November 2, 1965, general election, as a candidate for the office of Municipal Judge for the city of Youngstown, Ohio.”

At the time of the order, the court may well have been right. If the relator intended to attack a factual determination it was required that he allege in his petition that the findings by the board of elections on these matters were the result of fraud or corruption.

State, ex rel. Walts,

v.

Michell,

124 Ohio St. 161 .

Further, if the relator intended to attack a legal determination he had to allege in his petition that the findings by the election board on these matters were the result of flagrant misinterpretation of a statute or a clear disregard of legal provisions applicable thereto.

State, ex rel. Hanna,

v.

Milburn,

170 Ohio St 9. See, also,

Sullivan

v.

State, ex rel. O’Connor,

125 Ohio St. 387, 392 .

Since the time of the lower court’s determination, the Ohio Supreme Court has announced its decision in the

Cline case, State, ex rel. Cline,

v.

Henderson,

4 Ohio St. 2d 7 , wherein the question of jurisdiction was raised by the respondents filing of a demurrer to the relator’s petition. Counsel for Cline are also counsel for Mr. Donofrio, and it is of interest to note that the jurisdictional allegations in both cases are identical, to wit:

“In so finding the board failed in the performance of its legal duty to count all valid signatures on said petition and acted unlawfully, arbitrarily and abused its discretion.”

The gray area has now been cleared. Based upon the identical jurisdictional allegations contained in the Donofrio peti

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tion for writ of mandamus, the jurisdiction of the Common Pleas Court was invoked.

Beyond invoking jurisdiction, the

Cline case, supra,

decided October 5,1965, by the Ohio Supreme Court, is applicable here in a limited capacity. It is not “carte blanche” authority to issue a writ in this case. Mr. Cline filed, with the board of elections, a nominating petiton consisting of six part-petition papers. Each of the papers contained a declaration of candidacy and an affidavit supporting it. A variance in dates appeared in the notary’s jurat. In other words, the same declarant signed identical part-petitions and his oath was administered by the same notary, but in some instances on different dates. The Ohio Supreme Court held that this could not mislead any elector intending to sign the petition. The writ was issued and Paul Cline’s name will appear on the ballot November 2, 1965.

NONE

of the signatures of the Donofrio nominating petition were held invalid for the reason that the signatures in the

Cline case

were allowed by the Supreme Court. The facts of the two cases are not the same. We are mindful that the Supreme Court also stated: “

*

* * to disqualify a candidate from seeking public office on such a minor technicality, which could easily occur by mistake or inadvertence, would serve no public purpose.” With this I agree. So does Mr. Donofrio when he states on page 35 of his brief:

“To insure the continued existence of our demoncratie form of government, men must always have a right to present themselves as candidates for public offices upon a reasonable compliance with our election laws.”

Turning to page two of appellant’s brief as a guideline, I will discuss the invalidated signatures:

“(1) Six (6) petitions, containing ninety (90) signatures were rejected because the statements of candidacy contained therein were notarized by a different Notary than the statements of candidacy contained in the other forty-seven (47) petitions.”

A primary petition (Declaration of Candidacy) is described in Sections 3513.05, 3513.07 and 3513.09, Revised Code. A nominating petition (Statement of Candidacy) is described in Section 3513.261. The latter refers to the requirements of the nomination as an independant by petition, and the former re

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fers to partisan primary nominations. The case of

State, ex rel. Ferguson,

v.

Brown, Secretary of State,

173 Ohio St. 317 , decided in 1962, involved a partisan primary election. Both parties to this controversy nse the

Ferguson case

to support their respective positions in relation to the “two-notary” question. Without deciding this issue by means of the

Ferguson case,

and the other cases cited in briefs, I rely upon the

Cline case.

The real issue is: Would this technical irregularity mislead an elector in his signing of a petition? I think not. This is a minor technicality. To eliminate signatures for this reason alone would serve no public purpose, and the valid signatures of these part-petitions should be counted.

“Seven (7) petitions containing one hundred five (105) signatures contained false affidavits because of improper circulation.”

Herein lies the heart of the matter before us — the eye of the storm. The record discloses that, in all, 190 signatures were invalidated because the petition contained “false affidavits” on the part of the circulators. Testimony directed to this point is voluminous. The election board heard a parade of witnesses regarding the issue of “false affidavits.”

Section 3501.38, Revised Code, reads in part:

“(D) No person shall write any name other than his own on any petition. No person may authorize another to sign for him.

“(E) Every petition paper shall bear the affidavit of the circulator that he witnessed the affixing of every signature, that all signers were to the best of his knowledge and belief qualified to sign, and that every signature is to the best of his knowledge and belief the signature of the person whose signature it purports to be.

“(F) If a circulator knowingly permits an unqualified person to sign a petition paper or permits a person to write a name other than his own on a petition paper, that petition paper is invalid ; otherwise the signature of a person not qualified to sign shall be rejected but shall not invalidate the other valid signatures on the paper.”

However, any violation of the above provisions or any other provisions found in Title 35 of the Revised Code constitutes a

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prima facie case of fraud within the purview of such Title (Section 3599.42, Revised Code).

The oath taken by the circulator is as follows (Section 3513.-261, Revised Code):

“*

*

* being duly sworn, deposes and says that he is a qualified elector of the state of Ohio and resides at the address appearing below his signature hereto; that he is the circulator of the foregoing petition paper containing signatures; that he witnessed the affixing of every signature, that all signers were to the best of his knowledge and belief qualified to sign, and that every signature is to the best of his knowledge and belief the signature of the person whose signature it purports to be.”

The testimony is extensive and the briefs are long concerning the issue of the “false affidavits” of the circulators. Notwithstanding the fact that decisions of a board of elections in election matters are, by statute, declared to be final (Section 3513.262, Revised Code), the decisions may nevertheless be reviewed where: by disallowing signatures, the board of elections displayed a flagrant misinterpretation of a statute or displayed a clear disregard of legal provisions applicable thereto or a clear abuse of discretion.

(State, ex rel. Flynn,

v.

Board of Elections of Cuyahoga County,

164 Ohio St. 193 .)

I quite agree with relator’s statement in his brief:

“ * * * a finding of fact by a board of elections on a factual issue may not be set aside. This is what our Supreme Court held in the

Sullivan

case” ( 125 Ohio St. 387 ).

There is no reason to detail each and every signature on the petition papers that were disallowed in this category.

However, the state of the record before me is such that 1 can say with firm conviction that the decision of the board of elections relating to the 190 signatures was not made as the result of fraud or corruption on its part nor has it been guilty of a flagrant misinterpretation of the law nor has it disregarded legal principles. The board properly applied its discretion, within prescribed limits, to all 190 names.

Relator conceded that the election board properly disallowed the twelve signatures for the reason that the signers were “not registered.” Further, by properly disallowing 190

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signatures for the reason that the circulator made a “false affidavit” the number of valid signatures would be less than is required.

Since the majority of this court declared the signatures contained on papers 4, 10 and 22 to be valid, but all other signatures under the category of “false affidavits” to be invalid, comment should be directed to these papers. (It is noted that some signatures that were found on these papers were disallowed by the majority for other reasons.) We differ in that I would uphold the election board’s action in relation to all these petition papers containing the 190 names.

A similar course of conduct prevailed among the circulators of all thirteen papers disallowed by the board of elections.

I feel compelled to apply the same rule to all thirteen papers upon review and cannot reconcile allowing three and rejecting ten.

Paper number 4 was circulated by a Mr. Gallo. The bill of exceptions clearly discloses the reason why this paper was invalidated in toto. In explaining the action of the board of elections Mr. Eogers testified in the lower court:

“Q. * * * Lets come to petition No. 4 now. This is a petition which was circulated by a man by the name of Gallo, and you have in this tabulation of yours invalidated. You invalidated every signature on that petition upon the basis that Mr. Gallo was guilty of some kind of a fraud, isn’t that right. A. That is right.

“Q. The board did that? A. That is right.

“Q. Now what was his fraud? A. If you’ll look at signature No. 2 which is Mrs. Tony Matsi, 124 E. Midlothian Boulevard, and if he said that he saw all of these people sign it, this is in fact Tony’s signature. * *

It is obvious that Mr. Matsi signed his wife’s name in the presence of the circulator.

Counsel for relator argues that there is not a ‘ ‘ syllable of testimony” that was before the board on this matter. The point is, however, that we have before us the testimony of Mr. Eogers, given in the lower court, who explained the action taken by the board. The members of the board concluded that Mrs. Tony Matsi did not sign her name and that the circulator knew

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this to be the fact and that his affidavit was false. In disallowing paper number 4 the board of elections acted within the limits of the

Flynn case.

Paper number 10 was circulated by a Mr. Guerriero. The board of elections disallowed all the signatures on this paper for the reason that the circulator made a false affidavit. Mr. Guerriero went to the Cole house. Mrs. Cole signed her name and

took the

paper upstairs

to

be signed by Mr. Cole. Admittedly, the purported signature of Mr. Cole was not made in the presence of Mr. Guerriero. When asked, “Then, sir, would you agree that your affidavit at the end of that petition was incorrect?,” Mr. Guerriero replied, “A. Yes, I would.”

State, ex rel. Pucel,

v.

Green,

101 Ohio App. 531 , is distinguishable. The facts differ. In the

Pucel case,

the wife signed for her husband in the

presence of the circulator.

In this case it cannot be determined what did in fact happen upstairs in the Cole house. The Coles were not summoned to testify before the board of elections. The circulator admitted that he did not witness the signing of all the names to the petition, but under oath in his petition he stated that he had. Here again the rule of the

Flynn case

( 164 Ohio St. 193 ) is met by the board of elections.

Paper number 22 was circulated by a Mr. Melia. The board of elections disallowed all the signatures on this paper for the reason that the circulator made a false affidavit. One signer, Mr. Dragoui, testified that he had never seen Mr. Melia, the circulator; that a boy named “D’Apolito” approached him for his signature. After considering conflicting testimony, the board concluded that Mr. Melia’s affidavit was false. As Judge Jenkins, the trial judge, put it:

“* * * Because we must remember that as in every trial in court where the jury is the trier of the facts, the board in this instance was the jury, and they had a right to believe whom they wanted to believe on what they had before them. I can’t go into the question of why they believed one person and didn’t believe another. I can’t go into that.”

The Legislature has empowered the board of elections with the authority to determine the validity or invalidity of a nominating petition and established the procedures for the elec

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tion board to follow. This court is simply not permitted to substitute its decision for that of the Board of Elections of Mahoning County when it finds that the board of elections did not flagrantly misinterpret the law or abuse its discretion. Elections belong to the political branch of the government. It is not the function of this court to “look into the heart” of the circulator as we are asked to do by the relator in testing the “false affidavit” signatures. The board of elections, in disallowing the 190 signatures, concluded that the statutory presumption of fraud had not been rebutted. Though the actions of the circulators in the

Gongwer case (State, ex rel. Gongwer,

v.

Graves, Secretary of State,

90 Ohio St. 311 ) were less subtle, it appears to me, and it appeared to the board, that there was a systematic course of legal fraud on the part of the circulators of those part petitions that were disallowed for “false affidavits.” Paragraph four of the syllabus of the

Gongwer case

states:

“Where it appears from the evidence that any circulators of parts of a petition have been guilty of a systematic course of fraud and forgery in procuring and writing names thereon, and have wilfully and intentionally sworn to false affidavits attached thereto, it is neither fraudulent nor an abuse of discretion on the part of the Secretary of State to reject all parts of the petition procured by such circulators.”

The court held this to be so “notwithstanding there is a conflict of evidence upon that question.” Continuing further with the

Graves case

(paragraph six of the syllabus):

“An affidavit intentionally and knowingly false, attached to any part of a petition, is not a compliance with the provisions of Section

lg

of Article II of the Constitution of the state, and the part of a petition to which such false affidavit is attached, must be rejected entirely, * * #.”

(See, also,

Simon

v.

Board of Elections of Cuyahoga County,

87 Ohio Law Abs. 594 . This is the same court that decided the

Pucel case

[ 101 Ohio App. 531 ].)

The Ohio Supreme Court has spoken out in clear language the principles this reviewing court must follow in considering rulings of a board of elections. This court must find a “flagrant misinterpretation of a statute, or a clear disregard of legal

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provisions applicable thereto.” So spoke the Ohio Supreme Court in the

Flynn case

( 164 Ohio St. 193 ). It is this rule of law that should be followed in considering the “false affidavit” papers. The majority has construed the

Pucel case

to apply. First, the facts of the

Pucel case

differ and, secondly, it is not a Supreme Court case; it was decided by the Cuyahoga County Court of Appeals. In the

Pucel case

three petition papers were considered by the court. The first two were allowed and referred to as the “Antoni” papers. Allowance of the signatures contained on these papers gave the declarant sufficient signatures to qualify to have his name placed upon the ballot. The court then considered a third paper referred to as the “Martin” paper. There, the wife signed for the husband who couldn’t find his eyeglasses, at his request and in the presence of the circulator. Under those facts the court held, in the syllabus, that just the one signature should be disallowed and the balance of the signatures on the paper allowed. When the Ohio Supreme Court reviewed the

Pucel case

on its merits ( 165 Ohio St. 175 ), it held:

“Since the first and second petition papers

[Antoni]

contain more than the required 100 valid signatures, it is unnecessary to consider the validity or invalidity of the third

[Martin]

petition paper.”

The inescapable conclusion is that by allowing three of the thirteen petition papers that had been ruled out by the board of elections, is to say that Messrs. Sulligan, Bernard, Henderson and Johnson (the Mahoning County Election Board) flagrantly misinterpreted the law or clearly disregarded applicable legal provisions. I can not so state. The relator has divided his complaint into three categories: One, “different notaries,” two, “false affidavits,” and three, “ditto marks and causing information other than name to be placed by others with consent of the signers on the papers.” There are Supreme Court decisions involving all three categories, and to look to the Supreme Court on two and to ignore the Supreme Court on the third category (false affidavits) in favor of an inapplicable lower court decision

(Pucel case),

as the relator would have us do, is inconsistent and unsound.

The record of the protest hearing before the board of elec

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tions shows that the members performed their duty capably under strenuous conditions. They concerned themselves with the tedious task and made their rulings after hearing every facet of each protest. They exercised their discretion within proper limits as to the “false affidavit” petitions. Perhaps the same board would rule differently now on the “two-notary” protests since learning of the decision in the

Cline, supra, case.

A candidate for nomination for public office should follow the statutory directions with respect to the requirements.

(State, ex rel. Ferguson,

v.

Brown, Secy. of State,

173 Ohio St. 317 .) As the Ohio Supreme Court has said in

State, ex rel. Weaver,

v.

Wiethe,

4 Ohio St. 2d 1 (decided September 30, 1965):

“* * * To this [«.

e.,

the

Ferguson

language above paraphrased] may be added the further admonition that if the action taken also

seems

unfair, the remedy lies in a corrective statutory or charter enactment, not with election officials or the courts who are equally bound to abide the clearly mandated result. ’ ’

It is the duty of the members of the court to interpret the law as they understand it and rule accordingly regardless of whatever reaction there may be to the findings. If the law appears to bring on a harsh result, and one that makes compliance most difficult, it is for the Legislature to reform it. Until such time, circulators must follow the requirements of the statute exactly or the petition papers that they circulate are unacceptable. In this case, clarification and reformation of the election laws are clearly needed. (Two reviewing Judges [Jenkins and Jones] would let stand the election board’s ruling, and two Judges [Lynch and Johnson] would reverse the same ruling.) However, for the courts to so “legislate” is to open Pandora’s Box and let escape all the ‘ ‘ ills ’ ’ contained therein. Under these circumstances, how can it be said that relator has a “clear right to the relief sought”? Relator seeks an extraordinary remedy, and the burden is upon him to demonstrate that he is, by law, entitled to the relief prayed for in the petition. By following the law, I hold that he has not overcome that burden. Fundamentally, this court is reviewing a petition for writ of mandamus that has been denied by a lower court. We are here con

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cerned with testimony given before two different bodies, the election board and the Court of Common Pleas of Mahoning County. Those “triers of the facts” have made decisions that I do not consider to be founded upon flagrant misinterpretation of the applicable law or abuse of discretion.

There is no need, in this dissent, to comment on the balance of signatures not allowed by the board of elections.

The relator having failed to show a clear right to the relief sought, I would deny the writ and dismiss the petition. The judgment of the lower court should be affirmed for the reasons stated herein.