State ex rel. Lambert v. Medina Cty. Bd. of Elections

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

ex rel. Lambert v. Medina Cty. Bd. of Elections, Slip Opinion No. 2023-Ohio-3351.]

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. 2023-OHIO-3351

THE STATE EX REL. LAMBERT v. MEDINA COUNTY BOARD OF ELECTIONS.

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

may be cited as State ex rel. Lambert v. Medina Cty. Bd. of Elections, Slip

Opinion No. 2023-Ohio-3351.]

Elections—Mandamus—Compliance with election statutes—Evidence

unequivocally showed that relator sought placement of question on ballot

asking electors whether sale of spirituous liquor should be permitted at

certain times on Sundays at a particular location—Because relator’s

petition was controlled by R.C. 4301.333, relator not entitled to relief in

mandamus based on failure of board of elections to follow procedure under

R.C. 4301.33—Because relator did not provide board with affidavit

required by R.C. 4301.333(C)(1)(a) when petition filed, petition was invalid

in its entirety under R.C. 4301.333(C)(2)—Writ denied.

(No. 2023-1097—Submitted September 18, 2023—Decided September 20, 2023.)

IN MANDAMUS.

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SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} In this expedited election case, relator, James B. Lambert, seeks a writ

of mandamus compelling respondent, the Medina County Board of Elections, to

place a local liquor option on the November 7, 2023 general-election ballot.

Alternatively, Lambert seeks an order compelling the board to provide him with

information and a form that he says he needs in order to have his liquor-option

petition considered for placement on the ballot. We deny the writ.

I. BACKGROUND

A. Legal background

{¶ 2} Ohio law grants the privilege of local option to the electors of an

election precinct and specifies measures for exercising that privilege. See

R.C. 4301.32 et seq. Although not defined by statute, “local option” is a term used

to describe the method of regulating liquor licensing within a locality by a popular

vote of the people rather than by legislative enactment. See Shelley Ross Saxer,

“Down with Demon Drink!”: Strategies for Resolving Liquor Outlet

Overconcentration in Urban Areas, 33 Santa Clara L.Rev. 123, 153 (1995).

R.C. 4301.33 and 4301.333 are two local-option statutes relevant to this case.

{¶ 3} R.C. 4301.33 sets forth the procedure for circulating a petition for the

submission of a question arising under R.C. 4301.35 (concerning, among other

things, the question whether to permit the sale of wine and mixed beverages by the

package for off-premises consumption) or 4301.351 (concerning the question

whether to permit Sunday sales). The scope of the questions presented under

R.C. 4301.35 and 4301.351 have generally been described as having a “precinct-

wide” reach. See 2012 Ohio Atty.Gen.Ops. No. 2012-025, 2012 WL 3782388, *7-

8. A board of elections must provide two things to a petitioner who wishes to

circulate a petition under R.C. 4301.33: “[A]t the time of taking out the petition,”

the board must provide to the petitioner the “names of the streets and, if appropriate,

the address numbers of residences and business establishments within the precinct

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in which the election is sought,” R.C. 4301.33(A)(1), and a “form prescribed by the

secretary of state for notifying affected permit holders and liquor-agency stores of

the circulation of” the petition, R.C. 4301.33(A)(2).

{¶ 4} The petitioner must file the information provided by the board with

the division of liquor control and obtain from the division a list of names and

addresses of permit holders and liquor-agency stores that would be affected by the

election. Id. Next, the petitioner must notify the permit holders and liquor-agency

stores included on the list provided by the division of the proposed local option,

using the form provided by the board. Id. When the petitioner files the petition

with the board, the petitioner must provide the list supplied by the division and an

affidavit certifying that the petitioner has notified the entities on the list of the

proposed local option. Id. The Ohio secretary of state has adopted “Form No. 5-

N” as the affidavit that must be filed under R.C. 4301.33(A)(2), and the secretary

of state has specified that the upper half of the form applies to a petition under R.C.

4301.33.1 “Failure of the petitioner to provide the affidavit required by [R.C.

4301.33] and a complete and accurate list of liquor permit holders and liquor

agency stores, if any, invalidates the entire petition.” R.C. 4301.33(A)(2).

{¶ 5} R.C. 4301.333 prescribes a different procedure that is applicable to

the privilege conferred by R.C. 4301.323, which empowers electors to exercise a

“local option on the sale of beer, wine and mixed beverages, or spirituous liquor at

a particular location within the precinct.” (Emphasis added.) In exercising the

authority conferred on the secretary of state by R.C. 3501.05(P) to prescribe and

distribute to boards of elections a list of instructions indicating all legal steps

necessary to “petition successfully for local option elections,” the secretary of state

has observed that R.C. 4301.333 is an exception to the rule that “[i]n most cases, a

1. Form No. 5-N is available on the secretary of state’s website. See Ohio Secretary of State Form

No. 5-N, https://www.ohiosos.gov/elections/elections-officials/forms-petitions/ (accessed Sept. 18,

2023).

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local liquor option election will affect the entire precinct in which the election is

held.”2 Under the procedure established by R.C. 4301.333, only a class member

designated under the statute (e.g., “[t]he holder of a liquor permit at a particular

location within the precinct,” R.C. 4301.333(A)(2)) may present a petition to the

board. See R.C. 4301.333(A)(1) through (4); see also R.C. 4301.323(A)

through (D). Among other things, the petition must contain a notice that the

petition is for the submission of a question arising under R.C. 4301.355. R.C.

4301.333(B)(1). For example, one of the questions permitted by R.C. 4301.355

asks whether the electors should authorize the sale of spirituous liquor on Sundays

by a liquor-permit holder engaged in business at a particular location in the precinct.

See R.C. 4301.355(B)(2). When the petitioner submits the petition to the board,

the petitioner must provide a signed affidavit attesting to the proposed use of the

location following the election. R.C. 4301.333(C)(1)(a). The secretary of state has

adopted Form No. 5-N as the affidavit necessary for this filing, specifying that the

lower half of the form applies to a petition under R.C. 4301.333. “Failure to supply

the affidavit * * * at the time the petition is filed invalidates the entire petition.”

R.C. 4301.333(C)(2).

B. Factual background

{¶ 6} Lambert is the managing member and chief executive officer of

Lambert United Enterprises, L.L.C. Lambert United Enterprises does business as

Geeked Out Pub & Grille, which is located in Brunswick. Lambert represents that

Lambert United Enterprises holds a Class D liquor permit from the Ohio Division

of Liquor Control. He represents that the permit allows the sale of intoxicating

liquor from Monday through Saturday, but that it allows the sale of only beer and

wine on Sundays.

2. See Ohio Secretary of State, 2022 Guide to Local Liquor Options Elections, at ii, 3-4 (Oct. 2022),

available at https://www.sos.state.oh.us/globalassets/publications/election/localops22.pdf (accessed

Sept. 18, 2023).

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January Term, 2023

{¶ 7} In early July 2023, Lambert went to the board of elections to get a

petition for the purpose of obtaining what he describes as a “Sunday Serve spiritous

liquor permit.”3 A board-of-elections worker advised Lambert that he would need

50 signatures from Ward 2-D in Brunswick, handed Lambert a petition, and told

Lambert that the petition was due to be returned to the board no later than August

9, which was 90 days before the November 7 general election. It is undisputed that

the board did not provide Lambert with the street and address information or the

notification form required by R.C. 4301.33(A)(1) and (2).

{¶ 8} On August 9, Lambert returned to the board with signatures on the

petition, which had been circulated. The petition appears on “Form 5-R,” which,

according to its instructions, is a petition for use in “submit[ting] the question of

the sale of * * * spirituous liquor at a particular location within a precinct.” The

question posed on the petition is whether spirituous liquor should be sold on

Sundays between certain hours by “Lambert United Enterprises LLC dba Geeked

Out Pub and Grille” at “1439 Town Center Blvd D20 Brunswick Oh 44212,” which

is the same location on file with the division of liquor control. No one from the

board of elections advised Lambert that he needed to provide an affidavit with the

petition.

{¶ 9} On August 23 or 24, Lambert called the board of elections and was

told by its director that the proposed local option would not be appearing on the

ballot because the petition had lacked the Form No. 5-N affidavit. Around that

time, Lambert obtained an opinion from the Medina County Prosecuting Attorney’s

Office that had been written in response to a question from the board of elections’

director and deputy director and that explained that the procedure under

R.C. 4301.333 rather than R.C. 4301.33 applied to Lambert’s petition. The

prosecutor reasoned that because R.C. 4301.333 applied, Lambert’s failure to

3. Ohio law defines “spirituous liquor” as including “all intoxicating liquors containing more than

twenty-one per cent of alcohol by volume.” R.C. 4301.01(B)(5).

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attach the affidavit required under that statute meant that his petition was invalid

under R.C. 4301.333(C)(2).

{¶ 10} On August 29, Lambert filed this expedited election action against

the board of elections, seeking a writ of mandamus ordering placement of the local

option on the November 2023 general-election ballot or, alternatively, an order

directing the board to comply with R.C. 4301.33(A)(1) and (2). The board filed an

answer, and the parties filed evidence and merit briefs under the expedited schedule

set forth in S.Ct.Prac.R. 12.08(A). Lambert did not file a reply brief.

{¶ 11} Lambert does not advance a compelling reason in his brief as to why

the local option should be placed on the ballot. Instead, he states that he is

“realistically” seeking a writ of mandamus to compel the relief he has asked for in

the alternative, which is that the board be required to provide him with the street

and address information and the form required under R.C. 4301.33(A)(1) and (2),

so that he can then complete the affidavit on Form No. 5-N and present all the

necessary petition materials to the board of elections for consideration for

placement of the local option on the ballot. Accordingly, we limit our analysis to

the latter requested relief.

II. ANALYSIS

{¶ 12} To be entitled to a writ of mandamus, Lambert must establish by

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

relief, (2) the board of elections has a clear legal duty to provide it, and (3) he does

not have an adequate remedy in the ordinary course of the law. See State ex rel.

Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13.

Lambert lacks an adequate remedy in the ordinary course of the law due to the

proximity of the election, and he therefore meets the third element to obtain the

writ. See State ex rel. LaChapelle v. Harkey, __ Ohio St.3d __, 2023-Ohio-2723,

__ N.E.3d __, ¶ 8. An analysis under the first two elements asks “whether the board

engaged in fraud or corruption, abused its discretion, or acted in clear disregard of

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January Term, 2023

applicable law.” State ex rel. Brubaker v. Lawrence Cty. Bd. of Elections, 168 Ohio

St.3d 211, 2022-Ohio-1087, 197 N.E.3d 548, ¶ 10.

{¶ 13} Lambert cites R.C. 4301.33(A)(1) and (2) as the sources of his

requested relief in mandamus. He claims that the board of elections abused its

discretion by failing to provide him with the street and address information required

by R.C. 4301.33(A)(1) and the form for notifying affected permit holders and

liquor-agency stores required by R.C. 4301.33(A)(2) when he took out his petition.

Implicit in Lambert’s argument is his assertion that had he received the information

and form from the board, he would have been able to provide the affidavit required

by R.C. 4301.33(A)(2) on Form No. 5-N attesting that he had notified all the

affected permit holders and liquor-agency stores of the proposed local option,

thereby enabling his petition to be considered for the ballot. The board does not

disagree that R.C. 4301.33(A)(1) and (2) requires a board of elections to produce

the street and address information and the form, but it argues that R.C. 4301.333

rather than R.C. 4301.33 controls because Lambert’s petition concerned the

question whether the sale of spirituous liquor should be permitted at a particular

location. Because R.C. 4301.333 does not require the board to provide street and

address information or the form, the board says that mandamus cannot lie.

{¶ 14} The board is correct that R.C. 4301.333 rather than R.C. 4301.33

applies here. R.C. 4301.333(A) prescribes the procedure for exercising the

“privilege of local option conferred by [R.C. 4301.323],” and that privilege pertains

to the “sale of beer, wine and mixed beverages, or spirituous liquor at a particular

location within the precinct,” (emphasis added) R.C. 4301.323. The evidence

unequivocally shows that Lambert sought to place a question on the ballot asking

the electors whether the sale of spirituous liquor should be permitted at certain times

on Sundays by Lambert United Enterprises, L.L.C., d.b.a. Geeked Out Pub &

Grille, at a particular location, namely, the address of the company on file with the

division of liquor control. Indeed, Lambert presented his petition to the board on

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Form No. 5-R, which the secretary of state has adopted for a “petition to submit the

question of the sale of * * * spirituous liquor at a particular location within a

precinct.” Notably, by citing R.C. 4301.333, that form shows that it was adopted

to effectuate the local-option provisions under R.C. 4301.333, not R.C. 4301.33.

{¶ 15} Because Lambert’s petition is controlled by the procedure prescribed

under R.C. 4301.333, he is not entitled to relief in mandamus based on any failure

of the board of elections to follow the procedure prescribed by R.C. 4301.33.

Moreover, because Lambert did not provide the board with the affidavit required

by R.C. 4301.333(C)(1)(a) when he filed his petition, his petition was invalid in its

entirety under R.C. 4301.333(C)(2). See Brubaker, 168 Ohio St.3d 211, 2022-

Ohio-1087, 197 N.E.3d 548, at ¶ 12-16 (petition held to be invalid under a similar

provision in R.C. 4301.33(A) for failing to provide a required affidavit).

III. CONCLUSION

{¶ 16} For the foregoing reasons, we deny the writ.

Writ denied.

KENNEDY, C.J., and FISCHER, DONNELLY, STEWART, BRUNNER, and

DETERS, JJ., concur.

DEWINE, J., dissents, with an opinion.

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DEWINE, J., dissenting.

{¶ 17} In its answer to James B. Lambert’s mandamus claim, the Medina

County Board of Elections asserted that Lambert lacked standing to bring the claim

and asked this court to dismiss the action. The majority skips over the standing

requirement and proceeds to the merits of Lambert’s claim. I would not. Because

it is evident from the record that Lambert lacks standing to pursue this claim, I

would dismiss this case.

{¶ 18} “Standing is a threshold requirement that must be met before a court

may consider the merits of a legal claim.” Beaver Excavating Co. v. Testa, 134

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January Term, 2023

Ohio St.3d 565, 2012-Ohio-5776, 983 N.E.2d 1317, ¶ 8. To have standing in a

mandamus case, a relator must be beneficially interested in the case. State ex rel.

Ames v. Portage Cty. Bd. of Revision, 166 Ohio St.3d 225, 2021-Ohio-4486, 184

N.E.3d 90, ¶ 10; see also R.C. 2731.02.

{¶ 19} Lambert is the chief executive officer and managing member of

Lambert United Enterprises, LLC (“LUE”), which does business as Geeked Out

Pub & Grille, in Brunswick, Ohio. LUE, as a limited-liability company, is a

“separate legal entity” from its members, R.C. 1706.04(A), including Lambert.

LUE—not Lambert—holds a state liquor license, and LUE—not Lambert—would

hold the “Sunday Serve spiritous liquor permit” sought through placement of the

liquor option on the ballot. A copy of the petition submitted by respondent shows

that it was LUE—not Lambert—that acted as the petitioner for the local-option

issue under R.C. 4301.323(B) and 4301.333(A)(2).

{¶ 20} Lambert argues that he is “beneficially interested in the matter”

before this court by virtue of his positions as chief executive officer and managing

member of LUE. However, the test for standing in mandamus actions concerning

election matters is whether the relator “would be directly benefited or injured by a

judgment in the case.” (Emphasis added.) State ex rel. Sinay v. Sodders, 80 Ohio

St.3d 224, 226, 685 N.E.2d 754 (1997). While Lambert may benefit from or be

injured by this court’s holding, it would be only in a derivative way, through his

roles at the company. Lambert has no legal right that will be directly impacted by

this mandamus action; therefore, he lacks standing to pursue the claim. See State

ex rel. Brophy v. Cleveland, 141 Ohio St. 518, 521-522, 49 N.E.2d 175 (1943).

{¶ 21} Because standing is a threshold inquiry, I would dismiss the case on

that basis without reaching the merits of Lambert’s claims. I dissent from the

majority’s decision to do otherwise.

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The Law Office of Anita Lambert, L.L.C., and Anita A. Lambert, for

relator.

S. Forrest Thompson, Medina County Prosecuting Attorney, and Michael

K. Lyons and John R. Marconi, Assistant Prosecuting Attorneys, for respondent.

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