State ex rel. King v. Cuyahoga Cty. Bd. of Elections

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

ex rel. King v. Cuyahoga Cty. Bd. of Elections, Slip Opinion No. 2022-Ohio-3613.]

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. 2022-OHIO-3613

THE STATE EX REL. KING, MAYOR, v. CUYAHOGA COUNTY BOARD OF

ELECTIONS.

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

may be cited as State ex rel. King v. Cuyahoga Cty. Bd. of Elections, Slip

Opinion No. 2022-Ohio-3613.]

Mandamus—Writ sought to compel board of election to remove a recall election

from the ballot—East Cleveland City Charter—Mandamus is proper when

relator seeks to compel board of elections to perform an affirmative act—

Laches—Board of elections has no authority under city’s charter to assess

the validity of a recall election—Motion to intervene denied—Writ denied.

(No. 2022-1128—Submitted October 5, 2022—Decided October 11, 2022.)

IN MANDAMUS.

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SUPREME COURT OF OHIO

Per Curiam.

I. INTRODUCTION

{¶ 1} In this expedited election case, relator, Brandon L. King, mayor of

East Cleveland, seeks a writ of mandamus to compel respondent, the Cuyahoga

County Board of Elections, to remove a recall election against him from the

November 8, 2022 ballot. On October 3, 2022, Darryl Moore filed a motion for

leave to intervene. For the reasons set forth herein, we deny the motion for leave

to intervene and deny the writ of mandamus.

II. ANALYSIS

A. Statutory provisions governing recall petitions

{¶ 2} East Cleveland’s city charter establishes procedures for a recall

against a municipal officeholder. The charter requires the clerk of the city council

to keep a supply of blank recall petition forms on hand. East Cleveland City

Charter, Section 50. The clerk must issue blank forms upon receipt of an affidavit

“stating the name of the member or members of the Council whose removal is

sought.”1 Id. From the time the affidavit is filed, the petition circulators have 30

days to gather signatures and file the part-petitions with the clerk. Id., Section 52.

{¶ 3} The recall process is formally initiated by the filing of the petition,

signed by a sufficient number of electors, with the clerk. Id., Section 49. The clerk

must then “certify * * * whether the signature of electors [on the petition] amount

in number to at least twenty-five (25) percent of the voters voting at the last regular

municipal election of officers.” Id., Section 53. If the petition contains enough

signatures, the clerk must “serve notice of that fact upon” the officeholder

designated in the recall petition and deliver a copy of the petition to “the election

1. The language of East Cleveland City Charter, Section 50 could be read to mean that a recall may

be held only against a member of city council and not against the mayor. However, Section 50 must

be read in conjunction with Section 49, which establishes the procedures “to effect the removal of

any elected officer of the city.” (Emphasis added.)

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authorities” along with the certification regarding the percentage of voters who cast

ballots at the last municipal election. Id., Section 54.

{¶ 4} The officeholder designated in the recall petition may resign within

five days of the clerk’s certification. Id., Section 54. If the designated officeholder

does not resign within that five-day period, “the election authorities shall forthwith

order and fix a day for holding a recall election,” with the fixed day being no later

than 90 days after the expiration of the five-day resignation period. Id.

{¶ 5} Provisions in the Revised Code also address the recall of a municipal

officeholder. R.C. 705.92(A) provides that a recall petition “shall contain a general

statement in not more than two hundred words of the grounds upon which the

removal of the person is sought.” East Cleveland’s city charter does not require a

general statement, nor does it require that the affidavit contain reasons for seeking

the removal of the officeholder.

B. Background

{¶ 6} In July 2022, Charles N. Holmes Sr. delivered an affidavit to the clerk

of the East Cleveland city council seeking to recall King from office. Holmes’s

affidavit listed the following reasons to recall King:

(1) The Mayor does not reside in the City of East Cleveland

as the charter requires.

(2) The Mayor has spent money not appropriated by

Council. This has been confirmed by the Fiscal Oversight

Commission.

(3) The Mayor has used City contractors for personal work

(demolition of the home he received from the land bank) which he

should have returned to the city when he did not rehab it.

(4) The Mayor’s spending is keeping the City of East

Cleveland in debt. King’s administration has given away $1.4

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million in real estate to his friends with no payments to the City of

East Cleveland. How is the City supposed to prosper and come out

of debt? He doesn’t care.

(5) In a letter to State Representative Cupp and State Senator

Hoffman, the State Auditor stated that he doesn’t see East Cleveland

coming out of fiscal distress within the near future.

(6) Mayor King appointed Willa Hemmons as Law Director

and Charles Iyahen as Finance Director, but has not brought them in

front of City Council for approval as is required by the charter.

(7) Mayor King has not been transparent and refuses to

provide all contracts and related information to Council for storage

in the Council office as is required by the Charter.

(8) Mayor King forbids Mr. Iyahen, alleged Finance

Director, to meet with Council members or other citizens except in

Council meetings.

(9) The Mayor is not transparent with regard to City finances

and refuses to provide information requested by Council members.

(10) The Mayor was given a grant application to obtain

millions of dollars from the State of Ohio which would benefit the

citizens of East Cleveland. King never submitted the application

because it didn’t fit into “his plans” and “what he wanted to do.” He

doesn’t care.

The clerk issued blank recall petitions to Holmes.

{¶ 7} On August 9, the clerk certified to the board that Holmes had

submitted 34 part-petitions containing 531 signatures to her office. The board then

reviewed the part-petitions and certified 322 signatures as valid. On August 12, the

clerk notified King that the petition contained enough valid signatures to qualify

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for the ballot. The clerk informed him that he had the option to resign within five

days and that if he chose not to do so, a recall election would be held.

{¶ 8} On August 17, King wrote that he had “NO INTENTION of

resigning.” (Capitalization sic.) King requested that a special election be held on

October 25, 2022. Upon receipt of King’s answer, the clerk ordered the board to

fix a day for the recall election.

{¶ 9} At the board’s regular meeting on August 22, King renewed his

request to hold the recall at a special election in October. Instead, the board ordered

the recall election to appear on the November 8 general-election ballot.

{¶ 10} On September 2, King submitted a written challenge against the

petition to the board. In his protest letter, King asserted: “ORC 705.92 prohibits

more than 200 words in the General Statement on the Petition Affidavit. However,

the General Statement purporting to set forth the grounds for my Recall numbered

more than 500 words.”

{¶ 11} In response to King’s protest, the board’s staff requested a legal

opinion from East Cleveland Law Director Willa Hemmons whether R.C. 705.92

applies to a recall initiated under the city charter. On September 2, Hemmons

provided her legal opinion, observing that “there is nothing in the City’s Charter

that addresses word limitations in a Recall petition’s General Statement of grounds.

It is silent on the issue.” Citing the legal rule that when a charter is silent on a

matter, state law applies, Hemmons concluded that R.C. 705.92, limiting the

number of words to 200, controls. “Hence, a 500 word General Statement on a

Recall petition violates the process and thus nullifies the subject Recall petitions.”

{¶ 12} The board considered Hemmons’s opinion at its September 12

meeting. However, the board took no action to decertify the recall petition. The

board concluded that the city charter places the duty to certify the validity of the

petition on the city clerk and following that certification, the board’s duties are

purely ministerial. In addition, at least one board member concluded that because

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the city charter does not expressly incorporate R.C. 705.92 or limit the number of

words in the general statement, there is no such limitation.

{¶ 13} At the same meeting, the board declined to place on the ballot a recall

election against a different officeholder, Councilperson Korean Stevenson. With

respect to the Stevenson recall petition, the board found that Moore, who had

circulated some of the part-petitions against her, had been convicted of securities

fraud and other federal offenses. An assistant county prosecutor informed the board

that under Ohio law, a person convicted of a state or federal criminal offense is

barred from circulating petitions and that Ohio law restores that right after certain

state-law convictions but not after federal convictions. Based on that advice, the

board disqualified 50 signatures on part-petitions circulated by Moore, which left

the recall petition against Stevenson without the requisite number of valid

signatures to qualify for the ballot.

{¶ 14} King filed his complaint for a writ of mandamus against the board

on September 13. On September 20, he filed a motion for a peremptory writ of

prohibition, arguing that he would suffer irreparable harm and that his claim would

be rendered moot if early voting began with the recall election still on the ballot.

This court denied the motion. 167 Ohio St.3d 1524, 2022-Ohio-3361, __ N.E.3d

__. The parties filed briefs and evidence. On October 3, after the close of briefing,

Moore filed a motion for leave to intervene in support of King, which the board has

opposed.

C. The motion for leave to intervene

{¶ 15} In his motion for leave to intervene, Moore alleges a significant

interest in the outcome of this case because the board’s decision to invalidate the

part-petitions he had circulated against Stevenson violated his constitutional rights.

According to Moore, because the board erred as a matter of law when it invalidated

the Stevenson part-petitions that Moore had circulated, this court should not only

grant King’s writ of mandamus, but it should also reverse the board’s decision to

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set aside Moore’s circulated part-petitions for the recall of Stevenson and recognize

Moore’s right to circulate electoral petitions. We deny the motion for leave.

{¶ 16} Moore’s motion did not specify whether he was seeking intervention

as of right under Civ.R. 24(A)(2) or permissive intervention under Civ.R. 24(B)(2).

Under Civ.R. 24(A)(2), when intervention is timely sought and disposition of the

action may impair the applicant’s ability to protect its interest, intervention must be

granted unless the applicant’s interest is adequately represented by an existing

party. State ex rel. Bohlen v. Halliday, 164 Ohio St.3d 121, 2021-Ohio-194, 172

N.E.3d 114, ¶ 8. Civ.R. 24(B) allows a court to permit an applicant’s intervention

based on a showing that the applicant’s claim or defense has a question of law or

fact in common with the main action. But in exercising its discretion, a court must

consider whether intervention will unduly delay or prejudice the adjudication of the

rights of the original parties. State ex rel. Greene Cty. Bd. of Commrs. v. O’Diam,

156 Ohio St.3d 458, 2019-Ohio-1676, 129 N.E.3d 393, ¶ 10.

{¶ 17} Generally, we construe Civ.R. 24 liberally to permit intervention.

State ex rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30, 2011-

Ohio-4612, 955 N.E.2d 935, ¶ 41. But in this case, we deny the motion under both

Civ.R. 24(A) and (B), for at least three reasons. First and foremost, Moore has not

alleged a protectable interest that may be impaired (the standard for intervention of

right), nor has he identified a claim or defense that shares a question of law or fact

with the issues in this case (the standard for permissive intervention). Moore seeks

an adjudication of his status as a reinfranchised elector and a determination that the

Stevenson recall part-petitions that he circulated are valid. Neither question is

relevant to the case before the court. In other words, Moore does not explain why

he has an interest in the status of the King recall petition or have a legal argument

to present that is relevant to whether the King recall election should appear on the

ballot.

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{¶ 18} Second, Moore has not sought timely intervention. This expedited

election case had been pending for three weeks and was fully briefed when Moore

filed his motion, and early absentee voting starts next week (October 12).

{¶ 19} Finally, Civ.R. 24(C) requires that a motion to intervene be

accompanied by a pleading setting forth the claim or defense to be asserted. Moore

did not attach a proposed pleading; this failure alone is reason to deny the motion.

State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas, 121 Ohio St.3d 507,

2009-Ohio-1523, 905 N.E.2d 1192, ¶ 21.

{¶ 20} For these reasons, we deny Moore’s motion for leave to intervene.

D. Merits

1. Standard of review

{¶ 21} To be entitled to a writ of mandamus, King must establish by clear

and convincing evidence that (1) he has a clear legal right to the requested relief,

(2) the board has a clear legal duty to provide that relief, and (3) he does not have

an adequate remedy in the ordinary course of the law. State ex rel. Linnabary v.

Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13. As to the third

element, King lacks an adequate remedy in the ordinary course of the law due to

the proximity of the election, which is less than five weeks away. See State ex rel.

West v. LaRose, 161 Ohio St.3d 192, 2020-Ohio-4380, 161 N.E.3d 631, ¶ 15.

{¶ 22} The first two elements require us to determine whether the board

engaged in fraud, corruption, or abuse of discretion or acted in clear disregard of

applicable law. Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216,

2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. King has not alleged fraud or corruption.

An abuse of discretion “connotes an unreasonable, arbitrary, or unconscionable

attitude.” State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183,

677 N.E.2d 343 (1997).

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2. The board challenges this court’s jurisdiction

{¶ 23} As a preliminary matter, we address the board’s contention that this

court lacks jurisdiction to reach the merits of this case because King is actually

seeking a declaratory judgment and a prohibitory injunction, although he has

framed the case as a mandamus claim. Specifically, the board contends that King

is seeking a declaratory judgment that Hemmons’s legal opinion is correct and an

injunction to prevent his recall election from appearing on the ballot.

{¶ 24} This court has original jurisdiction in mandamus actions. Ohio

Constitution, Article IV, Section 2(B)(1)(b). However, if the allegations of a

complaint indicate that the real objects sought are a declaratory judgment and a

prohibitory injunction, then the complaint does not state a claim in mandamus and

must be dismissed for lack of jurisdiction. State ex rel. Grendell v. Davidson, 86

Ohio St.3d 629, 634, 716 N.E.2d 704 (1999).

{¶ 25} “What distinguishes a proper mandamus complaint from an

improper one is not whether the relator is seeking declaratory judgment as part of

the complaint but whether the complaint seeks to prevent or compel official action.”

(Emphasis sic.) State ex rel. Ethics First–You Decide Ohio Political Action Commt.

v. DeWine, 147 Ohio St.3d 373, 2016-Ohio-3144, 66 N.E.3d 689, ¶ 10. When

“declaratory judgment would not be a complete remedy unless coupled with

ancillary extraordinary relief in the nature of a mandatory injunction, the

availability of declaratory judgment does not preclude a writ of mandamus.”

(Emphasis added.) State ex rel. Arnett v. Winemiller, 80 Ohio St.3d 255, 259, 685

N.E.2d 1219 (1997). The court “examin[es] 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; see also

State ex rel. Smith v. Indus. Comm., 139 Ohio St. 303, 306, 39 N.E.2d 838 (1942)

(“The functions of an injunction are ordinarily to restrain motion and enforce

inaction, while those of mandamus are to set in motion and compel action”).

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{¶ 26} King’s complaint states a claim for relief that would compel the

board to perform an affirmative act: the prayer for relief demands a writ of

mandamus “to compel [the board] to decertify the Recall Petitions.” The complaint

does not seek a prohibitory injunction. “[T]he difference between a request for a

writ of mandamus in the nature of a mandatory injunction (over which this court

has original jurisdiction) and a request for a writ of mandamus in the nature of a

prohibitory injunction (over which it does not) is temporal.” State ex rel. Gadell-

Newton v. Husted, 153 Ohio St.3d 225, 2018-Ohio-1854, 103 N.E.3d 809, ¶ 13. A

prohibitory injunction seeks to prevent an injury that has not yet occurred. Id.; see

also State ex rel. Gen. Motors Corp. v. Indus. Comm., 117 Ohio St.3d 480, 2008-

Ohio-1593, 884 N.E.2d 1075, ¶ 12 (“a prohibitory injunction is used to prevent a

future injury, but a mandatory injunction is used to remedy past injuries”).

{¶ 27} The injury in this case has already occurred: the board placed the

recall election on the ballot. King is seeking to compel an affirmative act to remedy

that injury, not to prevent an act in the future. The relief he seeks is therefore a

mandatory injunction, also known as a writ of mandamus, which this court has

original jurisdiction to grant.

3. Laches

{¶ 28} The board contends that King’s mandamus claim is barred by laches.

In election cases, a relator must act with the utmost diligence. State ex rel. Syx v.

Stow City Council, 161 Ohio St.3d 201, 2020-Ohio-4393, 161 N.E.3d 639, ¶ 11.

Laches may bar relief in an election-related matter if the person seeking relief fails

to act with the requisite diligence. State ex rel. Monroe v. Mahoning Cty. Bd. of

Elections, 137 Ohio St.3d 62, 2013-Ohio-4490, 997 N.E.2d 524, ¶ 30. 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. Carrier v. Hilliard

City Council, 144 Ohio St.3d 592, 2016-Ohio-155, 45 N.E.3d 1006, ¶ 8.

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{¶ 29} The board argues that King failed to exercise reasonable diligence

by waiting until September 2022 to file his mandamus complaint. According to the

board, King should have sought judicial review of his R.C. 705.92 claim in August

when the board ordered that the election should appear on the November ballot, in

July when the clerk permitted Holmes to circulate a petition, or even in 2015 when

King was the subject of another affidavit in support of a recall petition that

exceeded 200 words.

{¶ 30} However, “a party asserting a laches defense must demonstrate that

it has been prejudiced by the other party’s delay.” State ex rel. Davis v. Summit

Cty. Bd. of Elections, 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093,

¶ 10. The prejudice “must be material before laches will bar relief.” Pennington v.

Bivens, 166 Ohio St.3d 241, 2021-Ohio-3134, 185 N.E.3d 41, ¶ 26. In this case,

the board has not alleged any prejudice resulting from King’s delay. We therefore

reject the board’s laches defense. See State ex rel. Halstead v. Jackson, ___ Ohio

St.3d ___, 2022-Ohio-3205, ___ N.E.3d ___, ¶ 19 (rejecting a laches defense

because the respondents failed to prove prejudice).

4. The mandamus claim

{¶ 31} The board declined to decertify the King recall petition primarily

because it believed that it lacked the authority to do so. King argues that the board

was wrong, because R.C. 3501.11(K)(1) provides that a board of elections shall

“[r]eview, examine, and certify the sufficiency and validity of petitions.”

(Emphasis added.) The board responds that the city charter governs the recall

process, and the charter gives the board only ministerial duties.

{¶ 32} The board is correct that it has no authority to assess the validity of

a recall petition. Rather, under the charter, “the Clerk of the Council shall certify

upon such petition whether the signature of electors thereto amount in number to

at least twenty-five (25) percent of the voters voting at the last regular municipal

election of officers.” (Emphasis added.) East Cleveland City Charter, Section 53.

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By using the term “electors” in Section 53, the charter requires the clerk to certify

the number of valid signatures, not simply to report the gross number of signatures

on the petition. And once the clerk provides her certification, the charter gives the

board no discretion: the board “shall forthwith order and fix a day for holding a

recall election.” (Emphasis added.) Id., Section 54.

{¶ 33} The board had no authority under the charter to decertify the King

recall petition; therefore, whether the board acted inconsistently when it invalidated

part-petition signatures on the Stevenson recall petition is not relevant.

{¶ 34} Given our holding, we will not address the question whether the 200-

word limitation in R.C. 705.92(A) applies to recall petitions under the East

Cleveland City Charter. Because the board had no authority to decertify the recall

petition, any statement we might offer as to whether the board would have been

correct to apply the statute in this matter would be an advisory opinion. And we

have “recogniz[ed] the ‘cardinal principle of judicial restraint—if it is not necessary

to decide more, it is necessary not to decide more.’ ” State ex rel. LetOhioVote.org

v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51, quoting

PDK Laboratories, Inc. v. United States Drug Enforcement Administration, 362

F.3d 786, 799 (C.A.D.C.2004) (Roberts, J., concurring in part and concurring in

the judgment).

III. CONCLUSION

{¶ 35} For the reasons discussed herein, we deny the motion for leave to

intervene and we deny the writ of mandamus.

Writ denied.

O’CONNOR, C.J., and DEWINE, DONNELLY, and STEWART, JJ., concur.

KENNEDY, FISCHER, and BRUNNER, JJ., concur in judgment only.

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Willa M. Hemmons, East Cleveland Law Director, for relator.

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January Term, 2022

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mark

R. Musson, Assistant Prosecuting Attorney, for respondent.

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