State ex rel. Wolfe v. Delaware Cty. Bd. of Elections - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Wolfe v. Delaware Cty. Bd. of Elections, 88 Ohio St.3d 182, 2000-Ohio-
294.]

THE STATE EX REL. WOLFE v. DELAWARE COUNTY BOARD OF ELECTIONS ET AL.
[Cite as State ex rel. Wolfe v. Delaware Cty. Bd. of Elections (2000), 88 Ohio St.3d
182.]
Elections -- Candidacy for county sheriff invalidated by board of elections --
Candidate did not have credentials required by R.C. 311.01(B)(9) -- Board
did not abuse its discretion -- Writ denied.
(No. 00-139 -- Submitted February 14, 2000 -- Decided February 18, 2000.)
IN MANDAMUS.

In mid-October 1995, while serving as a full-time deputy sheriff for the
Delaware County Sheriff's Office, relator, Mark W. Wolfe, assumed the duties of
an officer in charge during certain shifts. Wolfe continued in this capacity while
retaining the rank of deputy sheriff until he was promoted to sergeant on January 1,
1996.

From January 1, 1996 until October 1, 1997, i.e., a total of twenty-one
months, Wolfe served as a sergeant with the Delaware County Sheriff's Office and
performed supervisory duties associated with that position.

On September 2, 1998, then village of Kirkersville Mayor Terry W. Ashcraft
appointed Wolfe as an auxiliary police officer for the Kirkersville Police
Department. According to Wolfe, he worked as a sergeant in Kirkersville for three

eight-hour shifts in September and October 1998, during which time no other
Kirkersville police officer was working. Wolfe claimed that he then took a leave
of absence from the job until he submitted his resignation in August 1999.

Wolfe subsequently filed a declaration of candidacy and petition to become
a candidate for the Republican Party nomination for the office of Delaware County
Sheriff on the March 7, 2000 primary election ballot. On January 10, 2000,
incumbent Delaware County Sheriff Alfred K. Myers, Wolfe's prospective
opponent in the March 7 primary, filed a written protest under R.C. 3513.05 with
respondent Delaware County Board of Elections. In his protest, Myers stated that
Wolfe was not eligible to be a candidate for sheriff because he did not meet either
of the required qualifications set forth in R.C. 311.01(B)(9).

On January 18, the board held a hearing on Sheriff Myers's protest. At the
hearing, the parties introduced conflicting evidence on Wolfe's duties during his
mid-October 1995 through December 31, 1996 employment as a deputy sheriff
with the Delaware County Sheriff's Office. For example, Wolfe testified on his
redirect examination that he performed the same duties as shift supervisor during
this period that he subsequently performed as a sergeant from January 1, 1996 to
October 1, 1997. But upon further questioning by the board, Wolfe conceded that
he "was not at the rank of sergeant nor did [he] perform the sergeant's duties" from
October through December 1995.

2

The parties also introduced conflicting evidence concerning Wolfe's
employment with the Kirkersville Police Department. Wolfe and Michael Kilburn,
the Kirkersville Police Chief from November 1997 until his resignation in early
September 1998, testified that on September 2, 1998, Wolfe was appointed
sergeant with the Kirkersville Police Department. Kilburn further testified,
however, that Wolfe was appointed by then Mayor Ashcraft upon Kilburn's
recommendation and that the mayor's appointment did not designate Wolfe as a
sergeant. Ashcraft testified that he never appointed Wolfe as sergeant. And
Kilburn's successors as police chief testified that Wolfe never served as a sergeant
on the Kirkersville Police Department and that they had no records, i.e., time
sheets or work logs, of any service by Wolfe as a police officer for the department.

On January 18, at the conclusion of the hearing, the board voted
unanimously to grant Sheriff Myers's protest and to invalidate Wolfe's candidacy
for sheriff at the March 7 primary election.

On January 24, Wolfe filed this expedited election action for a writ of
mandamus to compel respondents, the board, its director, chairman, and members,
to certify his candidacy for Delaware County Sheriff for the March 7 primary
election ballot. Respondents filed an answer, and the parties filed evidence and
briefs.

This cause is now before the court for a consideration of the merits.

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__________________

David K. Greer, for relator.

W. Duncan Whitney, Delaware County Prosecuting Attorney, Dane A.
Gaschen and David A. Hejmanowski, Assistant Prosecuting Attorneys, for
respondents.

Reid & Berry and Robert L. Berry, urging denial of the writ for amicus
curiae, Buckeye State Sheriffs Association.
__________________

Per Curiam. Wolfe requests a writ of mandamus. The board's decision to
uphold Sheriff Myers's protest will be set aside and a writ of mandamus will issue
to compel placement of Wolfe's name on the March 7 primary election ballot for
the office of Delaware County Sheriff if the board engaged in fraud, corruption,
abuse of discretion, or clear disregard of applicable legal provisions. State ex rel.
Hazel v. Cuyahoga Cty. Bd. of Elections (1997), 80 Ohio St.3d 165, 167, 685
N.E.2d 224, 226. Wolfe asserts that the board abused its discretion and acted in
clear disregard of R.C. 311.01 by determining that he was not eligible to be a
candidate for sheriff.

The board determined that Wolfe did not establish compliance with R.C.
311.01(B), which provides:

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"On and after January 1, 1988, except as otherwise provided in this section,
no person is eligible to be a candidate for sheriff and no person shall be elected or
appointed to the office of sheriff unless that person meets all of the following
requirements:

" * * *
"(9)
The person meets at least one of the following conditions:
"(a)
Has at least two years of supervisory experience as a peace officer at
the rank of corporal or above, or has been appointed pursuant to section 5503.01
of the Revised Code and served at the rank of sergeant or above, in the five-year
period ending immediately prior to the qualification date;

"(b) Has completed satisfactorily at least two years of post-secondary
education or the equivalent in semester or quarter hours in a college or university
authorized to confer degrees by the Ohio board of regents or the comparable
agency of another state in which the college or university is located." (Emphasis
added.)

Wolfe never claimed that he had been appointed under R.C. 5503.01, which
involves highway patrol employees, or that he has the post-secondary education
specified in R.C. 311.01(B)(9)(b). Therefore, in order to satisfy R.C.
311.01(B)(9), he had to have "at least two years of supervisory experience as a
peace officer at the rank of corporal or above * * * in the five-year period ending

5

immediately prior to the qualification date." The pertinent five-year period here is
January 7, 1995 to January 6, 2000. See R.C. 311.01(H)(1); R.C. 3513.05.

Legislative intent is the preeminent consideration in construing a statute.
State ex rel. Zonders v. Delaware Cty. Bd. of Elections (1994), 69 Ohio St.3d 5, 8,
630 N.E.2d 313, 315. To determine the legislative intent, we first review the
statutory language. State ex rel. Sinay v. Sodders (1997), 80 Ohio St.3d 224, 227,
685 N.E.2d 754, 758. In reviewing the statutory language, we accord the words
used their usual, normal, or customary meaning. R.C. 1.42; State ex rel. Purdy v.
Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 340, 673 N.E.2d 1351,
1353.

Under the language used in the pertinent portion of R.C. 311.01(B)(9)(a), in
order to be eligible to be a candidate for sheriff, the person must, within the five-
year period, have two years of supervisory experience and that supervisory
experience must have been earned when the person served as a peace officer at the
rank of corporal or above.

Applying R.C. 311.01(B)(9)(a) here, we find it is uncontroverted that Wolfe
has twenty-one months of qualifying supervisory experience when he served as a
sergeant in the Delaware County Sheriff's Office from January 1, 1996 to October
1, 1997, i.e., in that position, Wolfe had supervisory experience earned while
serving as a peace officer at a rank higher than corporal.

6

Therefore, Wolfe needed three more months of qualifying supervisory
experience to satisfy R.C. 311.01(B)(9)(a). Wolfe claims that he is entitled to an
additional two and one-half months of qualifying supervisory experience for his
service as an acting shift supervisor in the Delaware County Sheriff's Office from
mid-October through December 31, 1995, and an additional twelve months of
qualifying supervisory experience for his service as a sergeant for the Kirkersville
Police Department from September 1998 through his purported resignation in
August 1999.

Wolfe is not, however, entitled to any of the additional claimed supervisory
experience. It is uncontroverted that the two and one-half months he served as
acting shift supervisor in the sheriff's office were not served at the rank of corporal
or above. And the evidence before the board conflicted about whether Wolfe
served at the rank of corporal or above when he allegedly worked for the
Kirkersville Police Department. Former Mayor Ashcraft testified that he never
appointed Wolfe sergeant. While Wolfe claims that the board concluded that he
was a sergeant and that he is entitled to at least two months' credit for September
and October 1998, a majority of the board did not make such finding. We will not
substitute our judgment for that of a board of elections if there is conflicting
evidence on an issue. State ex rel. O'Beirne v. Geauga Cty. Bd. of Elections
(1997), 80 Ohio St.3d 176, 181, 685 N.E.2d 502, 506; State ex rel. Kelly v.

7

Cuyahoga Cty. Bd. of Elections (1994), 70 Ohio St.3d 413, 414, 639 N.E.2d 78, 79
("Boards of elections are obligated to weigh evidence of a candidate's
qualifications, and courts should not substitute their judgment for that of the
board.").

Neither Wolfe's reliance on State ex rel. Hawkins v. Pickaway Cty. Bd. of
Elections (1996), 75 Ohio St.3d 275, 662 N.E.2d 17, nor our duty to liberally
construe statutory restrictions on rights to be a political candidate requires a
contrary result. In Hawkins, we construed a substantially different previous
version of R.C. 311.01(B)(9),1 and held that "the mere fact that Hawkins failed to
hold a `rank' specifying supervisor status did not preclude him from performing
duties which constituted supervisory experience or its equivalent when he was a
patrolman and deputy sheriff." Id. at 278, 662 N.E.2d at 20. But unlike former
R.C. 311.01(B)(9), the current version of R.C. 311.01(B)(9) expressly requires that
the supervisory experience be "as a peace officer at the rank of corporal or above."
(Emphasis added.) Hawkins is consequently inapposite.2

Similarly, although we have a duty to liberally construe R.C. 311.01(B)'s
limitations on the right to be an eligible candidate for sheriff in order to permit
electors to choose from all qualified candidates, see State ex rel. Altiere v.
Trumbull Cty. Bd. of Elections (1992), 65 Ohio St.3d 164, 165, 602 N.E.2d 613,
614, " `[t]here is no need to liberally construe a statute whose meaning is

8

unequivocal and definite.' " Nibert v. Ohio Dept. of Rehab. & Corr. (1998), 84
Ohio St.3d 100, 102, 702 N.E.2d 70, 71, quoting Lake Hosp. Sys., Inc. v. Ohio Ins.
Guar. Assn. (1994), 69 Ohio St.3d 521, 525, 634 N.E.2d 611, 614. Given the
clarity of the language of R.C. 311.01(B)(9), we need not apply interpretative rules
to discern its meaning; we need only apply its unambiguous language. Harsco
Corp. v. Tracy (1999), 86 Ohio St.3d 189, 192, 712 N.E.2d 1249, 1251-1252.

Based on the foregoing, the board neither abused its discretion nor clearly
disregarded R.C. 311.01(B)(9) by granting the protest and invalidating Wolfe's
candidacy for sheriff. Wolfe failed to satisfy either of the conditions specified in
R.C. 311.01(B)(9). Therefore, we deny Wolfe's request for extraordinary relief in
mandamus.
Writ denied.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, COOK and LUNDBERG
STRATTON, JJ., concur.

PFEIFER, J., dissents.
FOOTNOTES:

1.
Former R.C. 311.01(B)(9) provided that no person is eligible to be a
candidate for sheriff unless that person "has at least two years of supervisory
experience or its equivalent." 141 Ohio Laws, Part III, 5506.

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2.
Even
if
Hawkins applied, the evidence is such that the board would
have been justified in determining that Wolfe still did not have the requisite
supervisory experience. For example, there was evidence that Wolfe never
supervised anyone during the time that he was employed by the Kirkersville Police
Department. And Wolfe testified at one point in the protest hearing that he never
performed sergeant's duties for the sheriff's office until January 1, 1996. Although
Wolfe claims in his reply brief that this portion of his testimony was incorrectly
transcribed, he introduced no evidence to that effect.
__________________

PFEIFER, J., dissenting. The statute at issue, R.C. 311.01, is overly
restrictive without a rational basis. I would find it unconstitutional.

R.C. 311.01 is denying Ohio citizens a meaningful choice in electing
sheriffs. In Ohio's small counties, R.C. 311.01 effectively rules out competition.
Active police officers cannot run for sheriff because as classified civil servants
they are prohibited from political activity. R.C. 124.57. A sheriff's deputy in an
unclassified position could run for office, but an officer running against his boss is
not a realistic possibility. Indeed, even the Attorney General of this state, defined
by statute as our "chief law officer," R.C. 109.02, would not be qualified to be a
county sheriff under R.C. 311.01. See, e.g., R.C. 311.01(B)(8).
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Reasonable, nondiscriminatory restrictions upon voting rights are generally
upheld where the state's important regulatory interests justify the restrictions.
Burdick v. Takushi (1992), 504 U.S. 428, 434, 112 S.Ct. 2059, 2063-2064, 119
L.Ed.2d 245, 253-254. R.C. 311.01 does not further the regulatory interests of the
state. Stifled competition does not yield better sheriffs.
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