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

> Ohio Supreme Court · September 20, 2023 · 174 Ohio St. 3d 319

URL: https://www.frixlaw.com/law-library/cases/9882371

## Case

- **Court:** Ohio Supreme Court
- **Decided:** September 20, 2023
- **Citations:** 174 Ohio St. 3d 319; 237 N.E.3d 33; 2023 Ohio 3351
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Per Curiam
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

[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.
__________________
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.
_________________
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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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9882371. Public record. Not legal advice.