The opinion
[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. 2023-Ohio-3959.]
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-3959
THE STATE EX REL . KING, MAYOR, v. CUYAHOGA COUNTY BOARD OF
ELECTIONS ET AL.
[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. 2023-Ohio-3959.]
Elections—Mandamus—Prohibition—Protest procedures under R.C.
3501.39(A)(1) or (2) were inapplicable to city-charter-amendment and
mayoral-recall issues board of elections placed on ballot—Board did not
abuse its discretion or disregard applicable law in dismissing relator’s
protest—Writs denied.
(No. 2023-1322—Submitted October 27, 2023—Decided November 1, 2023.)
IN MANDAMUS, PROCEDENDO, AND PROHIBITION
__________________
Per Curiam.
{¶ 1} For the second time in less than a month, relator, Brandon L. King,
mayor of East Cleveland, has filed a petition seeking extraordinary relief ordering
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respondents, Cuyahoga County Board of Elections and its individual members
(collectively, “the board”),1 to (1) remove a proposed East Cleveland city-charter
amendment from the November 7, 2023 general-election ballot and (2) refrain from
going forward with a special mayoral-recall election on December 5, 2023. On
October 8, we unanimously denied King’s separate request for a writ of prohibition
seeking the same relief. See State ex rel. King v. Cuyahoga Cty. Bd. of Elections,
__ Ohio St.3d __, 2023-Ohio-3668, __ N.E.3d __, ¶ 1, 19-22, 24.
{¶ 2} Following our decision in King, King pursued the same relief by
submitting a written protest to the board. The board dismissed King’s protest for
lack of jurisdiction. King then filed this expedited election action, seeking
extraordinary writs to compel the removal of the proposed city-charter amendment
from the November 7 ballot and to prevent the December 5 special mayoral-recall
election. We deny the writs.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. East Cleveland Charter Amendment and Recall Issue Submitted to East
Cleveland Voters
{¶ 3} As we noted in King, the root of the dispute relating to the proposed
city-charter amendment and the mayoral-recall election lies with Eric Brewer’s
status as clerk of the East Cleveland City Council. See King at ¶ 2. King does not
believe that Brewer has been validly appointed clerk of council, and he does not
recognize Brewer as clerk of council.
{¶ 4} On August 9, 2023, the East Cleveland City Council passed
Resolution No. 57-23, submitting to East Cleveland electors a proposed revision to
Section 115 of the East Cleveland Charter that would change the mayoral primary
election from a partisan to a nonpartisan contest. On September 8, Brewer
submitted to the board a certification that the council had adopted Resolution
1. The individual respondents are Board Chair Henry F. Curtis IV and board members Inajo Davis
Chappell, Terence McCafferty, and Lisa Stickan.
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January Term, 2023
No. 57-23 by a four-fifths majority vote for placement on the November 7 general-
election ballot. On September 11, the board voted unanimously to approve the
proposed city-charter amendment for placement on the November 7 ballot as “Issue
48.” After receiving correspondence from King’s counsel stating that King had
vetoed Resolution No. 57-23 and from Brewer disputing the purported veto, the
board placed the charter amendment on its agenda for reconsideration at its
September 27 meeting.
{¶ 5} In a letter dated September 20, 2023, Brewer notified King that East
Cleveland resident Lateek Shabazz had submitted a petition for King’s recall as
mayor. The petition contained 789 elector signatures, which was more than 25
percent of the number of voters who voted in the 2021 municipal election, the
amount required by Section 49 of the city’s charter to place a recall on the ballot.
On September 26, Brewer filed a notice with the board, stating that King had been
notified of the sufficiency of the recall petition and that King had not resigned as
mayor within five days of the notification. Brewer asked the board to “fix the day
of the recall election of Mayor King” under Section 54 of the city’s charter. The
board placed the East Cleveland mayoral-recall issue on its September 27 meeting
agenda.
{¶ 6} At its September 27 meeting, the board voted to take no further action
regarding its prior decision to place Issue 48 on the November 7 general-election
ballot. Regarding the mayoral-recall issue, the board scheduled a December 5,
2023 special election.
B. This Court Denies King’s Prior Request for a Writ of Prohibition, and
Voting Begins
{¶ 7} King filed an expedited election action in this court on September 27,
seeking a writ of prohibition (1) to prevent the board from placing Issue 48 on the
November 7 general-election ballot and (2) ordering that the December 5 mayoral-
recall election not be held. We denied the writ because the board had not exercised
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quasi-judicial power. King, __ Ohio St.3d __, 2023-Ohio-3668, __ N.E.3d __, at
¶ 19-22, 24. King’s prior challenge to Issue 48 and the mayoral-recall election did
not involve any written protest under R.C. 3501.39(A)(1) or (2); therefore, the
board had not been required to hold a quasi-judicial hearing. Id. at ¶ 20, 22; see
also State ex rel. Wright v. Cuyahoga Cty. Bd. of Elections, 120 Ohio St.3d 92,
2008-Ohio-5553, 896 N.E.2d 706, ¶ 8-9 (denying writ of prohibition when no
statute or other law required quasi-judicial hearing on a protest to proposed charter
amendment’s placement on ballot); State ex rel. Fritz v. Trumbull Cty. Bd. of
Elections, 165 Ohio St.3d 323, 2021-Ohio-1828, 179 N.E.3d 67, ¶ 10 (denying writ
of prohibition when no statute or other law required quasi-judicial hearing on a
protest to scheduling of recall election). King filed a motion for reconsideration,
which we denied. See __ Ohio St.3d __, 2023-Ohio-3858, __ N.E.3d __.
{¶ 8} Early and absentee voting has commenced for the November 7
election, and approximately 128 East Cleveland voters had voted in the election as
of October 23. Regarding the special mayoral-recall election scheduled for
December 5, ballots have already been mailed under the Uniformed and Overseas
Citizens Absentee Voting Act, 52 U.S.C. 20302, and early in-person and absentee
voting will begin on November 7.
C. King Files a Written Protest with the Board
{¶ 9} On October 17, King submitted a written protest to the board,
challenging (1) the placement of Issue 48 on the November 7, 2023 general-election
ballot and (2) the placement of the mayoral-recall issue on the December 5 special-
election ballot. King demanded a quasi-judicial hearing on the protest, arguing that
this court’s decision in King entitled him to one.
{¶ 10} With respect to the mayoral-recall election, King protested on three
grounds. First, King challenged the validity of “approximately 200” signatures on
the recall petition submitted to Brewer on the basis that they were “forged.”
Second, King contended that Brewer was not the legitimate clerk of the East
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January Term, 2023
Cleveland City Council and that he therefore had no capacity to submit a recall
petition to the board under the East Cleveland Charter. Third, King argued that he
had not been given sufficient notice of the mayoral-recall issue to provide a
meaningful opportunity to challenge the issue.
{¶ 11} With respect to Issue 48, King protested its placement on the ballot
on three grounds. King argued that he had not been given sufficient notice to
challenge the issue before the board. King also contended that Resolution No. 57-
23, which submitted the proposed charter amendment to East Cleveland voters, was
procedurally defective because it was not submitted to him or East Cleveland’s law
director for review before its passage. Finally, King contended—as he had done at
the board’s September 27 meeting—that he had vetoed the resolution.
{¶ 12} At its October 18 meeting, the board voted to dismiss King’s protest
for lack of jurisdiction. In a letter to King’s counsel, counsel for the board
explained that R.C. 3501.39(A)(1) and (2), which King purported to invoke, were
not applicable to the charter-amendment or mayoral-recall issues placed on the
ballot.
D. King Files This Action
{¶ 13} Later on October 18, King filed this action against the board and its
members, seeking writs of mandamus, procedendo, and prohibition. King’s
petition alleges that the board’s dismissal of his protest was “in clear derision of
this Court’s ruling” in King, __ Ohio St.3d __, 2023-Ohio-3668, __ N.E.3d __,
which, according to King, entitles him to a protest hearing under
R.C. 3501.39(A)(1) or (2). As he argued in King, King alleges that the board has
allowed Brewer to submit matters for the ballot despite his not being the legitimate
clerk of council. See id. at ¶ 15. King further alleges that the board has
“abdicat[ed]” its responsibility to determine what should be placed on the ballot
and that it is “continuing to be complicit” in Brewer’s acting as clerk of council.
He seeks extraordinary writs ordering the board to (1) remove Issue 48 from the
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November 7, 2023 general-election ballot and (2) decertify the mayoral-recall
petition and cancel the December 5 recall election. Because of the proximity of the
November 7 election, we set an expedited schedule for the board to answer the
petition and for the parties to submit evidence and merit briefs. See 171 Ohio St.3d
1468, 2023-Ohio-3788, __ N.E.3d __. The matter is now ripe for decision.
II. ANALYSIS
{¶ 14} The gravamen of King’s claims in this case is that the board
improperly dismissed his written protest without conducting a hearing. In denying
prohibition relief in King, we noted that King had not filed a written protest related
to either the charter-amendment issue or the mayoral-recall election under
R.C. 3501.39. King at ¶ 20-22. Accordingly, the board had not been required to
hold a quasi-judicial hearing before deciding to keep Issue 48 on the November 7
ballot or to submit the mayoral-recall issue at a special election on December 5. Id.
at ¶ 24. King interprets this court’s rationale in King to mean that he was entitled
to a hearing upon filing his protest with the board. King is wrong.
A. Mandamus
{¶ 15} King asks for a writ of mandamus or, alternatively, a writ of
prohibition ordering the board to remove Issue 48 from the November 7, 2023
general-election ballot and the mayoral-recall issue from the December 5 special-
election ballot.2 To obtain 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
2. King’s petition pleaded claims for relief in prohibition (Count One), mandamus (Count Two),
and Procedendo (Count Three). In his merit brief, however, King limits his requested relief to a
writ of mandamus or, alternatively, a writ of prohibition. Accordingly, we summarily deny the writ
of procedendo. See State ex rel. Howard v. Watson, __ Ohio St.3d __, 2023-Ohio-3399, __ N.E.3d
__, ¶ 40 (denying writ regarding claims for which the relator was no longer seeking relief); see also
State ex rel. Ohio Gen. Assembly v. Brunner, 114 Ohio St.3d 386, 2007-Ohio-3780, 872 N.E.2d
912, ¶ 26, fn. 4 (there was no need to address request for writ that was raised in complaint but not
specifically argued in merit briefs).
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January Term, 2023
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. As for the third
element, King lacks an adequate remedy in the ordinary course of the law due to
the proximity of both the November 7 general election and the December 5 special
mayoral-recall election. King at ¶ 17.
{¶ 16} The first two elements of King’s mandamus claim require us to
determine whether the board engaged in fraud, corruption, or an abuse of discretion
or acted in clear disregard of applicable law in dismissing King’s protest. See
Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923,
778 N.E.2d 32, ¶ 11. Though King says the board is complicit in Brewer’s
usurpation of the office of clerk of the East Cleveland City Council, hints that the
board is facilitating the effort to oust him as mayor, and accuses the board of “an
abuse of discretion that borders on outright fraud,” he does not present any evidence
of fraud or corruption. Rather, King seems to argue that the board’s decision was
so erroneous that it must be deemed the result of fraud. Accordingly, we have no
evidentiary basis on which to conclude that the board engaged in fraud or
corruption. Thus, the relevant inquiry becomes whether the board abused its
discretion or disregarded applicable law in dismissing King’s protest.
{¶ 17} King argues that he was entitled to a protest hearing under
R.C. 3501.39(A)(1) or (2) upon filing his written protest with the board. R.C.
3501.39 states:
(A) The * * * board of elections shall accept any petition
described in section 3501.38 of the Revised Code unless one of the
following occurs:
(1) A written protest against the petition or candidacy,
naming specific objections, is filed, a hearing is held, and a
determination is made by the election officials with whom the
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protest is filed that the petition is invalid, in accordance with any
section of the Revised Code providing a protest procedure.
(2) A written protest against the petition or candidacy,
naming specific objections, is filed, a hearing is held, and a
determination is made by the election officials with whom the
protest is filed that the petition violates any requirement established
by law.
(Emphasis added.)
{¶ 18} The board did not abuse its discretion or disregard applicable law in
dismissing King’s protest, because R.C. 3501.39 is inapplicable here. The protest
procedure contemplated in R.C. 3501.39 applies to petitions described in
R.C. 3501.38, namely, “declarations of candidacy, nominating petitions, or other
petitions presented to * * * a board of elections * * * for the purpose of becoming
a candidate for any nomination or office or for the holding of an election on any
issue.” R.C. 3501.38. When a protest does not involve a petition or candidacy
described in R.C. 3501.38, the board is not required to conduct a quasi-judicial
hearing on the protest. See Wright, 120 Ohio St.3d 92, 2008-Ohio-5553, 896
N.E.2d 706, at ¶ 9.
{¶ 19} Neither the city-charter-amendment issue nor the mayoral-recall
issue was presented to the board through a petition described in R.C. 3501.38. The
board placed the charter-amendment issue on the ballot after it received the city
council’s resolution proposing the amendment under Section 94 of the East
Cleveland Charter. As we held in King, __ Ohio St.3d __, 2023-Ohio-3668, __
N.E.3d __, at ¶ 20, that process did not trigger any obligation for the board to
conduct a quasi-judicial hearing under R.C. 3501.39(A)(1) or (2).
{¶ 20} As for the mayoral-recall issue, the board scheduled a recall election
under Section 54 of the East Cleveland Charter after Brewer notified the board that
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January Term, 2023
a sufficient petition to recall King as mayor had been filed under Section 53 of the
city charter. That process did not trigger any obligation on the board’s part to
conduct a quasi-judicial hearing under R.C. 3501.39(A)(1) or (2). See Fritz, 165
Ohio St.3d 323, 2021-Ohio-1828, 179 N.E.3d 67, at ¶ 10 (quasi-judicial hearing
not required under R.C. 3501.39(A) when protest arose from city council’s vote to
schedule a recall election). The fact that King purported to protest the validity of
the signatures on the recall petition submitted to Brewer does not change the result.
As this court explained last year after King challenged a prior petition for his recall
as mayor, the board “has no authority to assess the validity of a recall petition”
under the East Cleveland Charter, State ex rel. King v. Cuyahoga Cty. Bd. of
Elections, 170 Ohio St.3d 42, 2022-Ohio-3613, 208 N.E.3d 787, ¶ 32. Rather,
under the charter, the clerk of council must certify whether at least 25 percent of
the voters who voted in the last regular municipal election of officers signed the
petition. Id., citing East Cleveland Charter Section 53. And once the clerk of
council provides that certification, “the charter gives the board no discretion: the
board ‘shall forthwith order and fix a day for holding a recall election.’ ”
(Emphasis sic.) Id., quoting East Cleveland Charter, Section 54. Thus, under the
recall process of the East Cleveland Charter, the board has no role in reviewing the
validity of a recall petition. Accordingly, here, the board did not abuse its discretion
or disregard applicable law in declining to hold a hearing on King’s protest, which
was outside the purview of R.C. 3501.38. See Wright at ¶ 9.
{¶ 21} King also contends that the board abused its discretion in this case
because, according to him, the board previously held a hearing on a protest to a
recall petition by a Berea City Council member and Berea’s charter has a recall
procedure similar to East Cleveland’s. He also submits that the cities of Westlake,
Brook Park, and Warrensville Heights have similar charter provisions governing
recall procedure but that the board has entertained protests involving those cities.
King has provided no evidence in support of these factual assertions. But even if
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he had provided such evidence, the board’s decisions to conduct protest hearings in
other cases are not relevant to whether the board abused its discretion here. A board
of elections does not abuse its discretion by declining to hold a protest hearing when
the protestor has no statutory right to a hearing. See State ex rel. Nauth v. Dirham,
161 Ohio St.3d 365, 2020-Ohio-4208, 163 N.E.3d 526, ¶ 23-24.3
{¶ 22} For these reasons, King is not entitled to relief in mandamus.
B. Prohibition
{¶ 23} King’s alternative request for a writ of prohibition is also without
merit. As this court explained in denying a writ of prohibition in King, __ Ohio
St.3d __, 2023-Ohio-3668, __ N.E.3d __, “ ‘extraordinary relief in prohibition is
not available when there is no statute or other law requiring a board of elections to
conduct a quasi-judicial hearing on a protest,’ ” (emphasis added in King) id. at
¶ 18, quoting Fritz, 165 Ohio St.3d 323, 2021-Ohio-1828, 179 N.E.3d 67, at ¶ 10;
see also State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections, 90 Ohio St.3d
238, 242, 736 N.E.2d 893 (2000). For the reasons stated above, the board was not
required to hold a quasi-judicial hearing on King’s October 17 protest. King is
therefore not entitled to a writ of prohibition.
III. CONCLUSION
{¶ 24} The statutory protest procedure that King sought to invoke is not
applicable to the charter-amendment or mayoral-recall issues that the board placed
on the ballot. Therefore, the board did not abuse its discretion or disregard
3. King also argues that in State ex rel. Stevenson v. King, 169 Ohio St.3d 61, 2022-Ohio-3093, 201
N.E.3d 873, and State ex rel. Richardson v. Gowdy, __ Ohio St.3d __, 2023-Ohio-976, __ N.E.3d
__, the board had “allowed recall protest hearings, [which] makes the current board position of not
allowing a protest hearing as to [King] even more untenable.” King’s premise is incorrect: neither
Stevenson nor Richardson concerned the holding of a protest hearing—much less a protest hearing
related to a recall petition. Stevenson was a public-records mandamus case in which the then-
president of the East Cleveland City Council sought to compel King and the city finance director to
produce records related to public expenditures. Id. at ¶ 1, 3. And Richardson was a mandamus case
in which the relator sought to compel the city council president to appoint a new clerk of council to
perform the recall-petition duties specified in the city’s charter. Richardson at ¶ 1.
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January Term, 2023
applicable law in dismissing King’s protest. We therefore deny the requested writs.
By so holding, we need not address the board’s argument that this action is barred
by the doctrine of laches. See State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d
172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 57.
Writs denied.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,
and DETERS, JJ., concur.
_________________
Willa M. Hemmons, East Cleveland Law Director, for relator.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mark
R. Musson, Assistant Prosecuting Attorney, for respondents.
_________________
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