State ex rel. Herdman v. Franklin Cty. Bd. of Elections - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Herdman v. Franklin County Board of Elections
et al.
[Cite as State ex rel. Herdman v. Franklin Cty. Bd. of
Elections (1993), Ohio St.3d .]
Elections -- Mandamus to compel board of elections to place
name on ballot as candidate for mayor of village --
Residency requirements -- R.C. 733.24 and 3503.02 -- Writ
denied, when -- Court will not substitute its judgment for
that of the board of elections when there is substantial
and conflicting evidence from which the board must choose.
(No. 93-1826 -- Submitted and decided October 13, 1993, --
Opinion announced October 25, 1993.*)
In Mandamus.
Relator, Randy L. Herdman, filed a statement of candidacy
and nominating petition for election to the office of mayor of
the Village of Brice at the November 2, 1993 election.
Respondents, the Franklin County Board of Elections and its
members, found that the petition contained sufficient valid
signatures. On August 30, 1993, Michael Gipson filed a written
protest with respondents. Respondents held a hearing on the
protest on September 2, 1993. The substance of the protest
concerned whether relator will have been a resident of Brice
for one year prior to the election, as required by R.C.
733.24. Relator presented evidence that he will have been a
resident for the required period, but respondents voted to
sustain the protest and not place relator's name on the
November ballot. Relator then filed this mandamus action to
compel respondents to place his name on the ballot.
*Reporter's Note: For earlier case, see 67 Ohio St.3d
1475, N.E.2d .

McTigue & Brooks and Donald J. McTigue, for relator.
Michael Miller, Franklin County Prosecuting Attorney, and
Harland H. Hale, Assistant Prosecuting Attorney, for
respondents.

Per Curiam. We deny the writ for the following reasons.
In his deposition,1 relator alleges that he has, since
1985, considered his parents' former home at 3000 High Street,
Brice, Ohio, his permanent residence, even though he had
married and lived with his wife, child and stepchildren in
Canal Winchester, Ohio in 1989 and 1990, and had lived in
Columbus for a time in 1990. Most important, he claims
continuous residence at the Brice address since October 1990.
He also states that he informally separated from his wife in
October 1990, that she lived with her parents thereafter until
relator and his wife reunited in March 1993, that he is an
interstate truck driver and may be away from home for long
periods, and that he executed a land installment contract to
purchase the property at 3000 High Street, Brice, from his
mother on June 14, 1993.
Relator has also submitted various documents executed
between 1990 and 1993, which give his address as 3000 High
Street, Brice. However, respondents discovered at the hearing
that on October 30, 1992 relator had applied for an absent
voter's ballot for the November 1992 election, stating that he
would be absent from the county on election day (November 3,
1992) beginning October 31, 1992, and writing a Columbus
address on the application form. Respondents also discovered
that relator had not filed a municipal income tax return to
Brice for 1992, even though he had income. For these reasons,
respondents upheld the protest and refused to place relator's
name on the ballot.
R.C. 733.24 states in part:
"The mayor of a village shall be elected for a term of
four years, commencing on the first day of January next after
his election. He shall be an elector of the village and shall
have resided in the village for at least one year immediately
preceding his election. * * *"
R.C. 3503.02 states in part:
"All registrars and judges of elections, in determining
the residence of a person offering to register or vote, shall
be governed by the following rules:
"(A) That place shall be considered the residence of a
person in which his habitation is fixed and to which, whenever
he is absent, he has the intention of returning.
"(B) A person shall not be considered to have lost his
residence who leaves his home and goes into another state or
county of this state, for temporary purposes only, with the
intention of returning.
"* * *
"(D) The place where the family of a married man or woman
resides shall be considered to be his or her place of
residence; except that when the husband and wife have separated
and live apart, the place where he or she resides the length of
time required to entitle a person to vote shall be considered
to be his or her place of residence."
We have previously applied this statute in
candidate-residence cases. State ex rel. Nichols v. Vinton
Cty. Bd. of Elections (1985), 20 Ohio St.3d 1, 20 OBR 75, 484
N.E.2d 690; State ex rel. Spangler v. Cuyahoga Cty. Bd. of
Elections (1983), 7 Ohio St.3d 20, 7 OBR 487, 455 N.E.2d 1009;

State ex rel. Lakes v. Young (1954), 161 Ohio St. 341, 53 O.O.
249, 119 N.E.2d 279; State ex rel. Klink v. Eyrich (1952), 157
Ohio St. 338, 47 O.O. 198, 105 N.E.2d 399.
Essentially, relator claims residence under division (A),
by stating that he has in fact resided at 3000 High Street,
Brice, since October 1990, and that he has not lost residence
under division (B) because of his temporary absence as a truck
driver, or under division (C) because he lived separately from
his family when he and his wife were separated. Relator's
evidence consists of his testimony and sixteen documents.
Respondents rely on two documents - - the request for a 1992
absent voter's ballot and the Brice income tax ordinance, which
they use to show that relator was obligated to pay income tax
to Brice. None of the evidence is conclusive as to where
relator actually lived on and after November 3, 1992. Relator
argues that his October 30, 1992 request for an absent voter's
ballot is not probative of where he lived on and after November
3, 1992. However, the document states that he lived at a
Columbus address on October 30 and would be absent from the
state beginning October 31 through election day. Thus,
respondents could infer that he would not move between October
30 and November 3, since by his own admission he would be out
of the state.
Similarly, relator argues that respondents had no evidence
at the hearing that relator owed municipal income tax for 1992,
and therefore the fact that the village ordinance requires him
to pay income tax is outside the record. However, relator
claims to have placed his 1992 W-2 forms in evidence before
respondents, which showed he had taxable income and allowed
respondents to infer that he was not a resident if he did not
pay taxes. Moreover, we can take judicial notice of municipal
ordinances within our territorial jurisdiction, Civ. R.
44.1(A)(2), and, to prevail in this action, relator must
establish a clear right to relief.
Respondents ascribed greater weight to the evidence
against relator's claimed residence. Thus, this is not like
cases in which all the evidence is on one side, in which we
have held that a board of elections abuses its discretion by
rejecting the only evidence. State ex rel. Beck v. Casey
(1990), 51 Ohio St.3d 79, 554 N.E.2d 1284; State ex rel. Pucel
v. Green (1956), 165 Ohio St. 175, 59 O.O. 237, 134 N.E.2d
154. We decline to substitute our judgment for that of the
respondent board of elections when there is substantial and
conflicting evidence from which the board must choose. In such
a case, the decision is within the board's discretion.
Moreover, there is no other allegation of fraud, corruption or
disregard of applicable legal provisions. See Beck, supra.
Accordingly, we deny the writ.
Writ denied.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.
FOOTNOTE
1 Relator claims to have submitted substantial evidence at
the hearing, but this cannot be verified because the audio
tapes of the hearing, jointly submitted as evidence, are of
such poor quality that the testimony cannot be heard. However,
relator's deposition filed in this court and attached exhibits