State ex rel. Herman v. Klopfleisch - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Herman v. Klopfleisch.
[Cite as State ex rel. Herman v. Klopfleisch (1995), Ohio
St.3d .]
Motion for leave to intervene granted.
(No. 95-365 -- Submitted March 21, 1995 -- Decided April
5, 1995.)
In Quo Warranto.

McTigue & Brooks and Donald J. McTigue, for relator Henry
Paul Herman.
Chester, Willcox & Saxbe, Charles R. Saxbe and Donald C.
Brey, for respondent Craig Olen Klopfleisch.
Betty D. Montgomery, Attorney General, and Andrew S.
Bergman, Assistant Attorney General, for intervening respondent
Bob Taft, Secretary of State.

The motion for leave to intervene by the Secretary of
State is granted.
Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney,
Pfeifer and Cook, JJ., concur.

State ex rel. Herman v. Klopfleisch.
Douglas, J., concurring. This cause originated in this
court on the filing, by relator, Henry Paul Herman, of a
complaint for a writ of quo warranto. A majority of this court
(Douglas and Pfeifer, JJ., dissenting) granted an alternative
writ to relator and set a briefing schedule. 71 Ohio St.3d
1486, 646 N.E.2d 180. This matter is now again before us on
the motion of Bob Taft, Secretary of State of the state of
Ohio, to intervene.
I concur with the majority in granting the Secretary of
State's motion. Given that the decision has been made by a
majority of this court for this case to continue in this court,
it is clear that pursuant to Civ.R. 24(A) and R.C. 3501.05, the
Secretary of State should be permitted to intervene. However,
having said that, I write separately to set forth why I believe

that the writ sought by relator should be summarily denied and
the case dismissed.
This case arises out of two tie votes (two-to-two) of the
Mercer County Board of Elections. When such an event occurs,
R.C. 3501.11 is applicable. R.C. 3501.11 provides in part:
"In all cases of a tie vote or a disagreement in the board [of
elections], if no decision can be arrived at, the director or
chairman shall submit the matter in controversy to the
secretary of state, who shall summarily decide the question and
his decision shall be final." (Emphasis added.) This
provision could not be more clear and, therefore, in accordance
with the statute, the matter was submitted to the Secretary of
State for his tie-breaking vote. The Secretary of State did,
in compliance with the statute, cast his vote which broke the
tie. Now relator seeks to overturn that decision
notwithstanding the clear dictates of the statute that the vote
of the Secretary of State "shall be final."
In State ex rel. The Limited, Inc. v. Franklin Cty. Bd. of
Elections (1993), 66 Ohio St.3d 524, 526, 613 N.E.2d 634, 635,
we said that "* * * pursuant to R.C. 3501.11, the decision of
the Secretary of State (or his designate) is final and not
subject to appeal. * * *" (Emphasis added.) This was, I
believe, an accurate statement of the law and a proper
modification of State ex rel. Ruehlmann v. Luken (1992), 65
Ohio St.3d 1, 598 N.E.2d 1149, State ex rel. White v. Franklin
Cty. Bd. of Elections (1992), 65 Ohio St.3d 5, 598 N.E.2d 1152,
and State ex rel White v. Franklin Cty. Bd. of Elections
(1992), 65 Ohio St.3d 45, 600 N.E.2d 656. Reasoning to support
this position is set forth in my concurrences and dissent in
those cases.
In conclusion, I concur in the decision to grant the
Secretary of State the right to intervene. I continue to
believe that the law is clear and this case should be
dismissed. Finally, I believe that continued prosecution of
this case by relator should result in an application by
respondent for attorney fees and other related costs which,
upon application, I would be favorably inclined to grant.
Pfeifer, J., concurs in the foregoing concurring opinion.