The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Grumbles v. Delaware Cty. Bd. of Elections, Slip Opinion No. 2021-Ohio-3132.]
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. 2021-OHIO-3132
THE STATE EX REL. GRUMBLES v. DELAWARE COUNTY BOARD OF
ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Grumbles v. Delaware Cty. Bd. of Elections, Slip
Opinion No. 2021-Ohio-3132.]
Elections—Mandamus—There is no statute that prohibits a township trustee from
being a candidate for a different seat on the same board of township
trustees—Writ granted.
(No. 2021-1072—Submitted September 8, 2021—Decided September 13, 2021.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} Relator, Robert “Ben” Grumbles, seeks a writ of mandamus ordering
respondent, Delaware County Board of Elections, to place him on the November 2,
2021 election ballot as a candidate for a four-year term as an Orange Township
trustee to commence on January 1, 2022. The board rejected Grumbles’s
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nominating petition on the sole basis that he is currently serving a different four-
year term as an Orange Township trustee that commenced on January 1, 2020.
According to the board, Grumbles is ineligible to run for election to an office he
already holds.
{¶ 2} We grant the writ. Because there is no statutory provision that bars
Grumbles from being elected to a different seat on the same board of township
trustees, the board of elections abused its discretion and disregarded applicable law
in rejecting Grumbles’s candidacy.
I. Factual and Procedural Background
{¶ 3} A board of township trustees is composed of three members who are
elected to staggered terms. Two trustees are elected to four-year terms at an
election held in an odd-numbered year, and then a third trustee is elected to a four-
year term at a different election held two years later, with each term beginning on
the January 1 following the election. See R.C. 505.01.
{¶ 4} At the 2019 general election, Grumbles was elected as an Orange
Township trustee for a four-year term beginning on January 1, 2020. On August 4,
2021, Grumbles filed a nominating petition and statement of candidacy with the
board of elections, seeking to run in the November 2, 2021 election for a four-year
term as Orange Township trustee beginning on January 1, 2022. Grumbles states
that if he is elected, he will resign from or vacate his current seat on the Orange
Township Board of Trustees. It is not disputed that the petition contains enough
valid signatures to qualify Grumbles’s name for placement on the ballot.
{¶ 5} At a meeting on August 16, the board of elections voted not to certify
his name to the November ballot, on the basis that he already holds the office of
Orange Township trustee. Grumbles asked the board to reconsider its decision, and
the board held a reconsideration hearing on August 25. Grumbles argued that he
was a registered elector and a resident of Orange Township and therefore qualified
to run for township trustee for the term beginning on January 1, 2022. Grumbles
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January Term, 2021
conceded that if his name were to be placed on the ballot and win in this
November’s election, he would have to resign the term that began on January 1,
2020, upon taking office for the term beginning on January 1, 2022. In support of
the validity of his candidacy, Grumbles noted that the board previously allowed a
county commissioner who was in the middle of a four-year term to seek election to
a seat with a different term on the same board of county commissioners.
{¶ 6} The board voted unanimously to deny reconsideration and to keep his
name off the ballot. Two days later, Grumbles commenced this expedited election
action, asking this court to issue a writ of mandamus ordering the board to certify
his name for placement on the November 2 ballot as a candidate for Orange
Township trustee. Grumbles also seeks recovery of his attorney fees on the basis
that the board acted in bad faith in refusing to certify his candidacy.
{¶ 7} The parties have submitted evidence and filed briefs in accordance
with the expedited schedule set by this court. See 164 Ohio St.3d 1417, 2021-Ohio-
2974, __ N.E.3d __. The matter is now ripe for decision.
II. Analysis
{¶ 8} To be entitled to a writ of mandamus, Grumbles must establish by
clear and convincing evidence (1) a clear legal right to be placed on the ballot as a
candidate for township trustee, (2) a clear legal duty on the part of the board to
place his name on the ballot, and (3) the lack of an adequate remedy in the ordinary
course of the law. See State ex rel. Yeager v. Richland Cty. Bd. of Elections, 136
Ohio St.3d 327, 2013-Ohio-3862, 995 N.E.2d 228, ¶ 15. Because of the proximity
of the November 2 election, Grumbles lacks an adequate remedy in the ordinary
course of the law. Id. at ¶ 16. As to the first two elements, Grumbles must show
that the board engaged in fraud, corruption, an abuse of discretion, or a clear
disregard of the applicable law. State ex rel. N. Olmsted v. Cuyahoga Cty. Bd. of
Elections, 93 Ohio St.3d 529, 532, 757 N.E.2d 314 (2001).
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{¶ 9} Grumbles does not allege fraud or corruption. Accordingly, our
inquiry is whether the board abused its discretion or failed to follow clearly
established law in refusing to certify Grumbles’s candidacy for the November
ballot.
A. May Grumbles Run for a Different Seat on the Same Board?
{¶ 10} R.C. 505.01 states:
In each township there shall be a board of township trustees
consisting of three members. Two of such trustees shall be elected
at the general election in nineteen forty-nine and quadrennially
thereafter, in each township, who shall hold office for a term of four
years, commencing on the first day of January next after their
election. The third trustee shall be elected at the general election in
nineteen fifty-one and quadrennially thereafter, in each township,
who shall hold office for a term of four years, commencing on the
first day of January next after the person’s election.
{¶ 11} Grumbles was elected to office in the 2019 general election as the
“third trustee” defined by R.C. 505.01, and now seeks to run for one of the other
two trustee seats this November. There is no dispute that Grumbles is a qualified
elector of Orange Township and that his nominating petition and statement of
candidacy contained enough valid signatures to qualify him for the ballot. And
absent a specific constitutional or statutory prohibition on his candidacy, Grumbles
argues, he has a clear legal right to have his name placed on the ballot.
{¶ 12} A board of elections shall accept any candidate’s petition “unless
* * * the petition violates the requirements of [R.C. Chapters 3501 or 3513] or any
other requirements established by law.” R.C. 3501.39(A)(4). The board does not
contend that Grumbles’s petition violates any statute in R.C. Chapters 3501 or
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January Term, 2021
3513. But the board argues that Grumbles is ineligible to run in this November’s
election because the statutory scheme governing the election of township trustees
“does not explicitly or implicitly authorize a township trustee to seek election to
the same office two years before the expiration of their current term.” Thus, the
board contends that Grumbles’s candidacy is unauthorized by law.
{¶ 13} In support of its position, the board cites State ex rel. Graves v.
Bernon, 124 Ohio St. 294, 178 N.E. 267 (1931). In Graves, a county board of
elections rejected Graves’s petition to be a candidate for municipal-court judge
because he had failed to specify which judicial incumbent or seat he was seeking
to succeed, as required by statute. Id. at 297-298. At the election at issue, five
municipal-court judges were to be elected to six-year terms commencing on
January 1, 1932, but there was only one incumbent judge at that time. Id. at 294,
298. This court invalidated the statute as applied to Graves, partly because it
rejected the premise that each judge was to be elected to a distinct office:
Here is but one office and but a single term. The judges who are to
be elected all fill the same term of office; they do not fill distinct
offices, nor do they perform different functions, but all perform the
same duties during the period of their same official term.
Id. at 298. The board analogizes this description of the municipal-court judgeships
at issue in Graves to the office of township trustee, which the board argues “does
not have separate and identifiable seats.”
{¶ 14} Graves is inapt, however, because it says nothing about the ability
of an incumbent of an office on a multiseat board to run for election to a different
seat on the same board. Moreover, the board’s analogy is flawed because it is
belied by the applicable statutory language. R.C. 505.01 plainly provides for three
distinct seats on a board of township trustees.
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{¶ 15} The board’s next argument is similarly flawed. The board
recognizes that elected officials often run for another elected office while
continuing to hold the office for which they were originally elected. Thus, for
example, the board deems it permissible for a sitting county commissioner to run
for another seat on the same board of commissioners because R.C. 305.01 labels
each seat with a separate term and separate starting date.1 Township trustees are
different, according to the board, because R.C. 505.01 provides for two of three
township trustees to be elected at the same election and to start their terms on the
same date (i.e., January 1 following the election), making the offices
indistinguishable.
{¶ 16} But the board fails to show why this is a distinction that makes a
difference. In this case, Grumbles currently holds the office of township trustee
with a term that began on January 1, 2020, and he seeks to run for a seat with a
different four-year term on the same board of township trustees, beginning on
January 1, 2022. There is nothing in the statutory scheme governing township
trustees or elections generally that prohibits Grumbles from seeking to be elected
to a seat with a different term than the one he is currently serving.
{¶ 17} Finally, the board also contends that if Grumbles were elected in
November, he would be involved in appointing his successor to the trustee position
he would vacate. See R.C. 503.24 (board of township trustees appoints person to
1. R.C. 305.01 provides:
The board of county commissioners shall consist of three persons who
shall be elected as follows:
(A) In November, 1974, and quadrennially thereafter, one county
commissioner shall be elected to take office on the first day of January following.
(B) In November, 1972, and quadrennially thereafter, two
commissioners shall be elected. The term of one of such commissioners shall
commence on the second day of January next after his election, and the term of
the other commissioner shall commence on the third day of January next after his
election.
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January Term, 2021
fill a vacancy).2 This inherent conflict of interest, argues the board, must mean that
the General Assembly intended to treat the position of township trustee differently
from elected offices for which it is permitted for a current officeholder to run for a
different term of the same office. For example, the board notes, similar conflicts
of interest do not exist for vacancies on a board of county commissioners, which
are filled by a county central committee under R.C. 305.02.
{¶ 18} The board’s argument is not persuasive, because it is grounded in
supposed policy considerations that are not set forth in the statutes governing
election of township trustees. When the General Assembly has prohibited
candidacies, it has done so expressly. See, e.g., R.C. 3513.04 (prohibiting persons
who have unsuccessfully sought party nomination from running for the same office
at the general election); R.C. 3513.253 (prohibiting the filing of a nominating
petition by a person who has already filed a nominating petition for another
township or municipal office). But the General Assembly has enacted no statute
that prohibits a township trustee from being a candidate for a different seat on the
same board of township trustees. We will not add a requirement for a candidate for
township trustee—i.e., that he is not currently a township trustee—that is not
expressed by statute. See State ex rel. Columbia Reserve, Ltd. v. Lorain Cty. Bd. of
Elections, 111 Ohio St.3d 167, 2006-Ohio-5019, 855 N.E.2d 815, ¶ 32.
{¶ 19} Grumbles meets the statutory qualifications to run for Orange
Township trustee, and there is no statutory provision that prohibits him from being
a candidate for a different seat on the same board. Accordingly, the board abused
its discretion and disregarded applicable legal authority in declining to certify his
candidacy for the November general election ballot.
2. If the board of trustees does not appoint a successor trustee within 30 days after the occurrence
of the vacancy, “a majority of the persons designated as the committee of five on the last-filed
nomination petition of the [trustee] whose vacancy is to be filled who are residents of the township
shall appoint” the successor. R.C. 503.24. Failing that, the power to appoint Grumbles’s successor
would go to the presiding probate judge of Delaware County. Id.
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B. Attorney Fees
{¶ 20} Grumbles also seeks to recover his attorney fees on the basis that the
board excluded him from the ballot in bad faith. See State ex rel. Maloney v.
Sherlock, 100 Ohio St.3d 77, 2003-Ohio-5058, 796 N.E.2d 897, ¶ 55 (absent a
statute allowing attorney fees as cost, the prevailing party is not entitled to attorney
fees unless the opposing party acted in bad faith). To recover attorney fees based
on “bad faith,” Grumbles must show more than the board’s negligence or bad
judgment on the part of the board. State ex rel. McDougald v. Greene, 161 Ohio
St.3d 130, 2020-Ohio-3686, 161 N.E.3d 575, ¶ 26. The phrase connotes a dishonest
purpose, moral obliquity, conscious wrongdoing, or some ulterior motive or ill will.
Id.
{¶ 21} According to Grumbles, the board’s justifications for rejecting his
candidacy are “so farfetched and fantastical that they can only be considered
pretextual, not a bona fide interpretation or application of the laws governing access
to the ballot.” Grumbles does not explain, however, what he believes the board’s
actual motives were. That is, he does not present evidence from which to infer that
the board was motivated by something other than an honest belief that his candidacy
was not permitted by law.
{¶ 22} Though the board’s justifications for keeping Grumbles off the ballot
are legally incorrect, we do not find any evidence in the record to show that the
board’s reasons were “contrived attempts to justify an untenable position.” State
ex rel. Fairfield Leader v. Ricketts, 56 Ohio St.3d 97, 104, 564 N.E.2d 486 (1990).
In totality, the record shows that the board struggled with Grumbles’s candidacy
because it was unusual and unprecedented, with no statutory or case-law authority
that either prohibited or permitted it. Under those circumstances, Grumbles has not
established that the board harbored either ill will or a dishonest purpose in rejecting
his candidacy.
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III. Conclusion
{¶ 23} For the foregoing reasons, we grant a writ of mandamus ordering the
board to certify Grumbles’s name for placement on the November 2, 2021 ballot as
a candidate for Orange Township trustee. We deny Grumbles’s request for attorney
fees.
Writ granted.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
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McTigue & Colombo, L.L.C., Derek S. Clinger, Donald J. McTigue, and J.
Corey Colombo, for relator.
Melissa A. Schiffel, Delaware County Prosecuting Attorney, and Mark W.
Fowler and Vince J. Villio, Assistant Prosecuting Attorneys, for respondent.
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