Opinion

State ex rel. Frenchko v. Trumbull Cty. Bd. of Elections (Slip Opinion)

  • 161 Ohio St. 3d 174
  • 161 N.E.3d 616
  • 2020 Ohio 4253
Court
Ohio Supreme Court
Filed
Aug 28, 2020
Status
Published
On the bench
Per Curiam
Cited by
0 cases
Authority
More cited than 12.5%

though it was too late for the board to remove a candidate from the ballot sua sponte or in response to a protest, “the board may hold a hearing limited to investigating the alleged violation of [election law] pursuant to R.C. 3501.11(J)”

How later courts described this case

  • though it was too late for the board to remove a candidate from the ballot sua sponte or in response to a protest, “the board may hold a hearing limited to investigating the alleged violation of [election law] pursuant to R.C. 3501.11(J)”
  • distinguishing between an administrative act, an investigation, and an exercise of quasi-judicial power, an adjudicatory proceeding

Written by the judges who cited it.

The opinion

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Frenchko v. Trumbull Cty. Bd. of Elections, Slip Opinion No. 2020-Ohio-4253.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2020-OHIO-4253

THE STATE EX REL. FRENCHKO v. TRUMBULL COUNTY BOARD OF ELECTIONS.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Frenchko v. Trumbull Cty. Bd. of Elections, Slip

Opinion No. 2020-Ohio-4253.]

Elections—Prohibition—R.C. 3501.11(J) and (Q)—Writ sought to prevent a board

of elections from holding a hearing to investigate election-law violations

and residency qualifications—Because statutes allowing the board to

investigate the violations do not give the board authority to adjudicate the

controversy, relator cannot show that the board is about to exercise quasi-

judicial power—Writ denied.

(No. 2020-0955—Submitted August 20, 2020—Decided August 28, 2020.)

IN PROHIBITION.

__________________

Per Curiam.

{¶ 1} Relator, Michele Nicole “Niki” Frenchko, seeks a writ of prohibition

to prevent respondent, the Trumbull County Board of Elections, from holding a

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hearing under R.C. 3501.11(J), which empowers the board to investigate violations

of election law and report its findings to the secretary of state or the prosecuting

attorney, and R.C. 3501.11(Q), which empowers the board to investigate the

residence qualifications of electors. We deny the writ. Frenchko has not shown

that the board is about to exercise quasi-judicial power, that the hearing is

unauthorized by law, or that she lacks an adequate remedy in the ordinary course

of the law.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Frenchko has been certified to appear on the November 3, 2020 ballot

as a candidate for Trumbull County Commissioner, having won the Republican

nomination to that office in the primary election.

{¶ 3} On July 8, 2020, the board received a letter from an elector named

Thomas J. Cool, requesting an “investigation pursuant to [R.C. 3501.11(J) and (Q)]

regarding the putative elector and candidate for Trumbull County Commissioner,

Niki Frenchko * * * with respect to residence and eligibility as an elector between

August 19, 2019 and May 28, 2020 and misstatements regarding the same and other

violations of [Title] 35 of the Ohio Revised Code.” Attached to Cool’s letter were

purported copies of a child-support order and a student record regarding Frenchko’s

minor child. Cool asserted that Frenchko was the child’s residential and custodial

parent and that from August 2019 through May 2020, the child attended school in

the Mentor Exempted Village School District. He further asserted that the Mentor

school district lies entirely in Lake County, not Trumbull County, and does not have

open enrollment, so Frenchko had to have been a resident of the district to send her

child to school there. Cool concluded, “Ms. Frenchko has either misled this

Honorable Board or has misled the Mentor Public Schools regarding her residency

during the 2019 through 2020 school year * * *.”

{¶ 4} On July 31, after holding a special meeting to determine how it would

investigate Cool’s allegations, the board sent a letter to Frenchko and Cool stating

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January Term, 2020

that on August 7, it would hold a public hearing pursuant to R.C. 3501.11(J) and

(Q) “as to all matters contained in the attached letter from Thomas Cool.” Frenchko

avers that the director and deputy director of the board have issued subpoenas,

signed but otherwise in blank, to Cool’s attorneys, allowing the attorneys to

subpoena witnesses and records of their choosing, including records from the

Mentor school district.

{¶ 5} Frenchko filed her prohibition complaint on August 6, seeking to

prevent the board from holding the August 7 hearing. We stayed the hearing

pending the outcome of this matter, which we ordered to proceed as an expedited

election case under S.Ct.Prac.R. 12.08. 159 Ohio St.3d 1471, 2020-Ohio-3978, ___

N.E.3d ___. Frenchko and the board filed merit briefs. Cool filed an amicus brief

in support of the board. Frenchko did not file a reply brief, and the time for doing

so has passed. The case is therefore ripe for decision.

II. ANALYSIS

{¶ 6} To be entitled to a writ of prohibition, Frenchko must establish that

the board “is about to exercise judicial or quasi-judicial power,” “the exercise of

that power is unauthorized by law,” and “denying the writ will result in injury for

which no other adequate remedy exists in the ordinary course of law.” State ex rel.

LetOhioVote.Org v. Brunner, 125 Ohio St.3d 420, 2010-Ohio-1895, 928 N.E.2d

1066, ¶ 11. The failure to establish any one of these elements would be fatal to

Frenchko’s complaint. She has not established any of them.

A. Quasi-Judicial Power

{¶ 7} “Quasi-judicial authority is the power to hear and determine

controversies between the public and individuals that require a hearing resembling

a judicial trial.” (Emphasis added.) State ex rel. Wright v. Ohio Bur. of Motor

Vehicles, 87 Ohio St.3d 184, 186, 718 N.E.2d 908 (1999); see also Black’s Law

Dictionary 1416 (11th Ed.2019) (defining “quasi-judicial power” as “[a]n

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administrative agency’s power to adjudicate the rights of those who appear before

it”).

{¶ 8} Frenchko argues that the board’s discussion at its July 31 special

meeting shows that it is contemplating removing her from the November 3 ballot

or canceling her voter registration at the conclusion of the hearing. The board’s

hearing notice, however, does not invoke R.C. 3503.24 and 3501.39, the provisions

relevant to taking those actions. Instead, the notice simply states that the board

intends to conduct an investigation pursuant to R.C. 3501.11(J) and (Q).

{¶ 9} R.C. 3501.11(Q) provides that the board shall “[i]nvestigate and

determine the residence qualifications of electors.” In connection with such an

investigation (or the investigation of any “irregularities, nonperformance of duties,

or violations” of election laws), R.C. 3501.11(J) permits the board to “administer

oaths, issue subpoenas, summon witnesses, and compel the production of books,

papers, records, and other evidence.” Importantly, neither provision authorizes the

board to decide anything in the judicial or quasi-judicial sense. Under R.C.

3501.11(J), all the board may do is report the facts it uncovers through its

investigation to the prosecuting attorney or the secretary of state. Under R.C.

3501.11(Q), all the board may do is “determine” something in the general sense

that it may “ascertain,” “establish,” or “find out.” Webster’s New World Dictionary

375 (3d College Ed.1988). In other words, R.C. 35011.11(Q) authorizes the board

to investigate, not adjudicate. Again, to hear and decide the controversy between

the parties, that is, to adjudicate the matter, a proceeding under another provision

is required. See, e.g., State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-

Ohio-5327, 915 N.E.2d 1215, ¶ 14-16.

{¶ 10} Thus, because the board does not have the power to adjudicate,

Frenchko has not established that the board is about to exercise quasi-judicial power

by holding an investigatory hearing or issuing subpoenas under R.C. 3501.11(J)

and (Q). See LetOhioVote.Org, 125 Ohio St.3d 420, 2010-Ohio-1895, 928 N.E.2d

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January Term, 2020

1066, at ¶ 16, citing State ex rel. Taft v. Franklin Cty. Court of Common Pleas, 63

Ohio St.3d 190, 195, 586 N.E.2d 114 (1992) (distinguishing between an

administrative act, an investigation, and an exercise of quasi-judicial power, an

adjudicatory proceeding).

B. Authorization by Law

{¶ 11} As explained above, R.C. 3501.11(J) and (Q) authorize the board to

investigate Cool’s allegations that Frenchko violated election law and to report its

findings to the prosecuting attorney or the secretary of state for further action. In

furtherance of this power, the board may issue subpoenas, R.C. 3501.11(J), and

may hold a hearing. Moreover, the board’s practice of having its director or deputy

director issue subpoenas signed but otherwise in blank, which Frenchko argues

exceeds the scope of the director’s and deputy director’s powers, comports with

Secretary of State Advisory Opinion No. 2008-10,

https://www.ohiosos.gov/globalassets/elections/advisories/2008/adv2008-10.pdf

(accessed August 26, 2020) [https://perma.cc/Z6ZE-EYCL].

{¶ 12} As also explained above, the board has expressly disclaimed any

authority to cancel Frenchko’s voter registration under R.C. 3503.24 or remove her

from the ballot. Frenchko’s reliance on State ex rel. Husted, 123 Ohio St.3d 288,

2009-Ohio-5327, 915 N.E.2d 1215, in which we granted a writ of mandamus partly

because election officials had not complied with R.C. 3503.24 when canceling an

elector’s registration, is therefore misplaced. Frenchko has not established that the

board’s contemplated actions are unauthorized by law. See State ex rel. Harbarger

v. Cuyahoga Cty. Bd. of Elections, 75 Ohio St.3d 44, 47, 661 N.E.2d 699 (1996)

(though it was too late for the board to remove a candidate from the ballot sua

sponte or in response to a protest, “the board may hold a hearing limited to

investigating the alleged violation of [election law] pursuant to R.C. 3501.11(J)”).

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C. Adequate Remedy

{¶ 13} The only reason Frenchko asserts that she lacks an adequate remedy

at law is the proximity of the November 3 election. However, as the investigatory

hearing under R.C. 3501.11(J) and (Q) will not affect Frenchko’s ability to stand

as a candidate or to vote in that election, she has not established the lack of an

adequate remedy in the ordinary course of the law.

III. CONCLUSION

{¶ 14} Based on the foregoing, we deny the writ.

Writ denied.

O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and

STEWART, JJ., concur.

KENNEDY, J., not participating.

_________________

Michele Nicole Frenchko, pro se.

Dennis Watkins, Trumbull County Prosecuting Attorney, and William J.

Danso, Assistant Prosecuting Attorney, for respondent.

Brunner Quinn, Rick L. Brunner, and Patrick M. Quinn, in support of

respondent for amicus curiae, Thomas J. Cool.

_________________

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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