State ex rel. Stutzman v. Tuscarawas Cty. Bd. of Elections

[Cite as State ex rel. Stutzman v. Tuscarawas Cty. Bd. of Elections, 2023-Ohio-3386.]

COURT OF APPEALS

TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO EX REL. JUDGES:

JEFFREY A. STUTZMAN Hon. William B. Hoffman, P.J.

Hon. John W. Wise, J.

Relator Hon. Andrew J. King, J.

-vs- Case No. 2023 AP 09 0048

TUSCARAWAS COUNTY BOARD OF

ELECTIONS

Respondent OPINION

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Denied

DATE OF JUDGMENT ENTRY: September 21, 2023

APPEARANCES:

For Relator For Respondent

MATTHEW P. MULLEN RYAN STYER

OWEN J. RARRIC PROSECUTING ATTORNEY

TERRY J. EVANS KRISTINE BEARD

KRUGLIAK, WILKINS, GRIFFITHS ASSISTANT PROSECUTOR

& DOUGHERTY CO., L.P.A. TUSCARAWAS COUNTY

4775 Munson Street PROSECUTOR’S OFFICE

P. O. Box 36963 125 East High Avenue

Canton, Ohio 44735-6963 New Philadelphia, Ohio 44663

Tuscarawas County, Case No. 2023 AP 09 0048 2

Wise, J.

{¶1} Relator Jeffrey A. Stutzman filed a Complaint for Writ of Mandamus against

Respondent Tuscarawas County Board of Elections on September 8, 2023. The issue

presented in Mr. Stutzman’s mandamus action is whether his name should be placed on

the November 7, 2023 ballot for the office of mayor for the Village of Sugarcreek.

I. Background

{¶2} Mr. Stutzman currently serves as the mayor for the Village of Sugarcreek. He

seeks another term in office. Mr. Stutzman circulated a “Nominating Petition and

Statement of Candidacy” designated in the top left corner of the form as “Form No. 3-O

Prescribed by the Ohio Secretary of State (07-21)[.]” On this form, Mr. Stutzman

completed the “Statement of Candidacy”1 and “Nominating Petition” sections. He then

collected 18 signatures on the form and signed the “Circulator Statement[.]”

{¶3} Also submitted along with this form were four part-petitions, which are copies

of page 2 of Form 3-O. Each part-petition contains 13 signatures and the “Circulator

Statement” under the signatures, completed by Mr. Stutzman. The four part-petitions

were attached to the completed Form 3-O. Below is an example of one of the four part-

petitions. No statement of candidacy or nominating petition appears on the four part-

petitions.

1 The term “statement of candidacy” and “declaration of candidacy” are used

interchangeably in the opinion. The Ohio Secretary of State’s form 3-O uses the term,

“Statement of Candidacy.”

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{¶4} On July 24, 2023, Mr. Stutzman filed his petition with the Board of Elections.

It is undisputed Mr. Stutzman’s petition contains a total of 70 valid signatures. However,

on August 21, 2023, the Board of Elections refused to certify Mr. Stutzman’s petition for

placement of his name on the general election ballot for November 7, 2023 because he

“needed to attach a copy of page one to every additional page two of Form 3-O.”

Complaint at ¶ 23. On August 25, 2023, Mr. Stutzman objected to the Board of Elections’

decision, which was apparently denied resulting in the present writ.

II. Analysis

{¶5} To prevail on his writ, Mr. Stutzman must prove he has a clear legal right to

have his name placed on the November 7, 2023 ballot, the Board of Elections is under a

clear legal duty to provide the requested relief, and Mr. Stutzman has no 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. We find Mr. Stutzman has established

he has no adequate remedy in the ordinary course of the law due to the nearness of the

general election. See State ex rel. Greene v. Montgomery Cty. Bd. of Elections, 121 Ohio

St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 10.

{¶6} “In extraordinary actions challenging the decisions of the Secretary of State

and boards of elections, the standard is whether they engaged in fraud, corruption, or

abuse of discretion, or acted in clear disregard of applicable legal provisions.” Whitman

v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶

11. Here, there is no evidence or argument regarding fraud or corruption. Instead, the

dispositive issues are whether the Board of Elections abused its discretion or clearly

disregarded applicable law when it rejected Mr. Stutzman’s petition.

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{¶7} Mr. Stutzman maintains R.C. 3513.261 only requires an individual pursuing

a candidacy for elected office for a nonpartisan or municipal office to complete the

statement of candidacy portion of such petition, including all part-petitions, before

circulation for signature. He contends he complied with the statute through completion of

the information required within the statement of candidacy and nominating petition and

therefore, he substantially complied with the revised code for purposes of his access to

the general election.

{¶8} In support of his argument, Mr. Stutzman references 19 separate petitions

filed as Exhibit 7 to his Merit Brief in Support of Writ of Mandamus. He claims the Board

of Elections accepts and certifies single-sided petitions. Mr. Stutzman maintains for each

of the 19 petitions the petition signer would need to turn to the front page to see the

statement of candidacy and nominating petition. He claims his petition is no different.

{¶9} Further, Mr. Stutzman points out that page 2 of Form 3-O, which includes

lines for up to 13 signatures and the circulator statement, does not contain a statement

of candidacy or nominating petition. He also notes neither the statutes nor Form 3-O

require the form be printed double-sided on one piece of paper.

A. Strict vs. substantial compliance with election statutes

{¶10} In State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327,

915 N.E.2d 1215, ¶ 15, the Ohio Supreme Court held, “[t]he general rule is that, unless

there is language allowing substantial compliance, election statutes are mandatory and

must be strictly complied with.” Under R.C. 3513.261, when the General Assembly

references the concept of substantial compliance, it does so with regard to the issue of

“form.” State ex rel. Simonetti v. Summit Cty. Bd. of Elections, 151 Ohio St.3d 50, 2017-

Tuscarawas County, Case No. 2023 AP 09 0048 6

Ohio-8115, 85 N.E.3d 728, ¶ 26. For example, the first sentence of the statute provides:

“A nominating petition may consist of one or more separate petition papers, each of which

shall be substantially in the form prescribed in this section.” (Emphasis added.)

{¶11} Thus, the Simonetti Court explained R.C. 3513.261 “requires only

substantial compliance with the prescribed ‘form’ of the nominating petition, but the

statute contains no language regarding substantial compliance as to other matters.”

Simonetti at ¶ 26. “When considering questions of substantial compliance with an election

statute, we examine whether the requirement at issue ‘serves a public interest and a

public purpose.’ ” Id. at ¶ 27. If these interests do not relate to merely the form of a

nominating petition, but instead the substance of the petition, then strict compliance is

required. Id.

B. Inclusion of the statement of candidacy requires strict compliance under R.C.

3513.261.

{¶12} The statute at issue, R.C. 3513.261 provides, in pertinent part:

A nominating petition may consist of one or more separate petition

papers, each of which shall be substantially in the form prescribed in this

section. If the petition consists of more than one separate petition paper,

the statement of candidacy of the candidate or joint candidates named

need be signed by the candidate or joint candidates on only one of such

separate petition papers, but the statement of candidacy so signed shall

be copied on each other separate petition papers before the signatures

of electors are placed on it. (Emphasis added.) * * *

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{¶13} We find the above italicized statutory language dispositive of the issue here.

The four part-petitions filed by Mr. Stutzman do not contain a statement of candidacy.

Only the first page Form 3-O contains a completed statement of candidacy. The four part-

petitions containing 13 signatures each only contain a Circulator Statement. R.C.

3513.261 clearly requires the statement of candidacy to be included on each separate

petition paper before electors’ signatures are placed on the form. That did not occur here.

This requirement is noted in Simonetti, where the Court stated in dicta that “R.C. 3513.261

required each petition paper to include a statement of candidacy signed by Simonetti.”

Simonetti at ¶ 3.

{¶14} Mr. Stutzman contends candidates need only substantially comply with R.C.

3513.261. He cites State ex rel. Osborn v. Fairfield Cty. Bd. of Elections, 65 Ohio St.3d

194, 196, 602 N.E.2d 636 (1992). In Osborn, relator filed part-petitions but unlike here,

each part-petition contained a statement of candidacy as required by R.C. 3513.261. The

issue in Osborne was that the statements of candidacy contained differing house district

numbers. Id. at 195. The Court found the difference between the two versions of the

statements of candidacy to be immaterial concluding there was substantial compliance

with R.C. 3513.261.

{¶15} Mr. Stutzman also cites State ex rel. Phillips v. Lorain Cty. Bd. of Elections,

93 Ohio St.3d 535, 539, 2001-Ohio-1627, 757 N.E.2d 319. In Phillips, the Ohio Supreme

Court denied a writ of mandamus and writ of prohibition to prevent a county board of

elections from placing a candidate on the ballot whose nominating petition and statement

of candidacy contained an incorrect term-ending date. Id. at 540. The Court concluded

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the nominating petition and statement of candidacy substantially complied with statutory

form requirements. Id.

{¶16} Finally, Mr. Stutzman cites State ex rel. Yacobozzi v. Lorain Cty. Bd. of

Elections, 27 Ohio App.3d 280, 500 N.E.2d 905 (9th Dist.1985), where relator failed to

complete the day of the month on which the declaration of candidacy was completed. The

court granted relator’s writ of mandamus for placement of his name on the ballot. Id. at

282. The court explained, “ ‘[a]bsolute compliance with every technicality should not be

required in order to constitute substantial compliance, unless such complete and absolute

conformance to each technical requirement of the printed form serves a public interest

and a public purpose.’ ” (Emphasis sic.) Id. at 281, citing Stern v. Bd. of Elections, 14

Ohio St.2d 175, 180, 237 N.E.2d 313 (1968). The court concluded because relator’s

statement of candidacy was completely filled out before circulation among electors, the

electors were “properly informed.” Id. The only omission “misled no one,” and in the

absence of any fraud or deception, public policy favored access to the ballot. Id.

{¶17} Osborn, Phillips and Yacobozzi are distinguishable because none of these

cases dealt with part-petitions missing the statement of candidacy. In the present matter,

the statement of candidacy is completely missing from the four part-petitions. We cannot

assume this omission misled no one. As explained in Simonetti, the requirement that a

candidate sign the statement of candidacy on the petition paper before circulating the

nominating petition advances two public purposes. Simonetti at ¶ 27. First, it guarantees

adequate notice of the candidate’s identity to electors and second, it ensures the petition

will not be used for a candidacy other than the one intended by the signers. Id.

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Importantly, the Court concluded “these interests do not relate merely to the ‘form’ of a

nominating petition but go to the very substance.” Id.

{¶18} Likewise, Mr. Stutzman’s failure to include the statement of candidacy on

the four part-petitions does not merely relate to the “form” of the part-petitions. R.C.

3513.261 specifically requires the statement of candidacy be placed on each part-petition.

This requirement goes to the substance of the statute. Therefore, strict compliance was

required under R.C. 3513.261 with regard to the placement of the statement of candidacy

on each part-petition.

{¶19} We acknowledge Mr. Stutzman avers in his affidavit that he asked each

elector to review the nominating petition and statement of candidacy, that he told each

elector that he desired to be a candidate for mayor of Sugarcreek, Ohio and that each

elector that signed the petition knew he/she was nominating Mr. Stutzman for mayor of

Sugarcreek. Affidavit of Jeffrey A. Stutzman, ¶¶ 5-7. However, we cannot ignore the

mandate of R.C. 3513.261 that clearly requires the statement of candidacy be copied on

each other separate petition before electors sign.

{¶20} Our conclusion is supported by State ex rel. Wilson v. Hirsch, 69 Ohio St.3d

13, 630 N.E.2d 319 (1994). Although Wilson involved a congressional candidate and

therefore, a different set of statutes, the statute referenced in Wilson is similar to the

requirements of R.C. 3513.261. R.C. 3513.09, the statute under consideration in Wilson,

also requires that if a petition “with a declaration of candidacy consists of more than one

separate petition paper, the declaration of candidacy of the candidate named need be

signed by the candidate * * * on only one of such separate petition papers, but the

Tuscarawas County, Case No. 2023 AP 09 0048 10

declaration of candidacy so signed shall be copied on each other separate petition before

the signature of electors are placed on it.”

{¶21} The relator in Wilson filed a part-petition that contained a declaration of

candidacy and attached to it three additional part-petitions that did not contain

declarations of candidacy. Id. at 15. The Court held this violated the strict requirement in

R.C. 3513.09 that the signed declaration of candidacy “shall be copied on each other

separate petition paper.” Id. at 16. Relator argued substantial compliance with the statute.

The Court rejected this argument explaining, “R.C. 3513.072 may be satisfied by

substantial compliance with the form of a declaration of candidacy and petition, but the

omission of the entire declaration from three petition papers would hardly qualify as

substantial compliance.” Id.

{¶22} Here, the failure to include the statement of candidacy on four of the part-

petitions violated the statutory requirement in R.C. 3513.261 that the statement of

candidacy be copied on each other separate petition papers before the electors’

signatures are placed on it. This is a substantive statutory requirement that necessitates

strict compliance. Therefore, the Board of Elections did not abuse its discretion when it

refused to certify Mr. Stutzman’s petition for the November 7, 2023 ballot.

III. Conclusion

{¶23} For the foregoing reasons, Mr. Stutzman’s writ of mandamus is denied.

2 R.C. 3513.07 is the Form of Declaration of Candidacy; Petition for Candidate.

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{¶24} WRIT DENIED.

{¶25} COSTS TO RELATOR.

{¶26} IT IS SO ORDERED.

By: Wise, J.

Hoffman, P. J., concurs.

King, J., concurs separately.

JWW/ac 0915

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King, J. concurs separately,

{¶ 27} I join the opinion in full and agree with the judgment. I write separately to

address that I think the Board of Elections not only handled the petitions correct facially

but also properly handled the submission of the extrinsic materials.

{¶ 28} As the opinion discusses, election statutes generally require strict

compliance. R.C. 3501.38(I)(1) states, "[n]o alterations, corrections, or additions may be

made to a petition after it is filed in a public office." If a candidate were to request the

petition back to fix errors on one or more part petitions, a board of elections would be

prohibited from doing so. That is the essence of what the relator seeks to do through the

later filed affidavits. They seek to correct what are otherwise facial, fatal errors in the part

petitions.

{¶ 29} The Supreme Court has held that in certain instances a board must consider

later submitted testimony or affidavits provided by a rejected candidate to get the

candidate placed on the ballot. State ex rel. Crowl v. Delaware County Board of Elections,

144 Ohio St. 3d 346, 2015-Ohio-4097, 43 N.E.3d 406; State ex rel. Scott v. Franklin

County Board of Elections, 139 Ohio St. 3d 171, 2014-Ohio-1685, 10 N.E.3d 697. The

touchstone of this line of cases is that if a board of elections chooses to hold a hearing

and receive evidence, it abuses that discretion by disregarding "the evidence that hearing

produced." State ex rel. Scott at ¶ 19. The Supreme Court's decisions comport with the

idea of fairness and procedural due process.

{¶ 30} Here the Tuscarawas County Board of Elections was neither obligated to

hold a hearing nor did it hold a discretionary hearing. If the rule from State ex rel. Scott

were extended to any situation where an aggrieved filer could fix an error with affidavits,

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such a rule would undermine both the principle that strict compliance is required and R.C.

3501.38(I)(1). Moreover, the General Assembly has provided for protest hearings in

certain instances (R.C. 3513.263 and 3501.39) but not others. Nor did the Supreme Court

require boards of elections to hold hearings in State ex rel. Scott. Accordingly, I also

conclude the board of elections did not err either by refusing to reverse its decision after

receiving the affidavits or by not electing to hold a hearing after receiving the affidavits.