State ex rel. Phillips v. Lorain Cty. Bd. of Elections - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Phillips v. Lorain Cty. Bd. of Elections, 93 Ohio St.3d 535, 2001-Ohio-
1627]

THE STATE EX REL. PHILLIPS v. LORAIN COUNTY BOARD OF ELECTIONS.
[Cite as State ex rel. Phillips v. Lorain Cty. Bd. of Elections (2001), 93 Ohio
St.3d 535.]
Writs of prohibition and mandamus sought to prevent Lorain County Board of
Elections from placing name on Avon's November 6, 2001 general
election ballot and counting any votes for that candidate at the election
for the office of council at large -- Complaint for writ of mandamus
dismissed, when -- Writ of prohibition denied, when.
(No. 01-1765 -- Submitted October 18, 2001 -- Decided October 23, 2001.)
IN MANDAMUS AND PROHIBITION.
__________________

Per Curiam. On August 20, 2001, Thomas L. Wearsch filed a nominating
petition and statement of candidacy for the office of Council at Large in the city
of Avon, Lorain County, Ohio. The nominating petition and statement of
candidacy was composed of five part-petitions and was on a form prescribed by
the Secretary of State of Ohio.

The petition form provided:
"STATEMENT OF CANDIDACY

"I __________________________, the undersigned, * * * declare that I
desire to be a candidate for election to the office of _________________, in the
municipality of ___________________, for the:
full term or
unexpired
term ending ___________________, in ___________________ County, Ohio at
the general election to be held on the __________________ day of
_____________, ___________.

"* * *
"NOMINATING PETITION

SUPREME COURT OF OHIO

"We, the undersigned, qualified electors of the State of Ohio, whose
voting residence is in the county, city, village, or township set opposite our
names, hereby nominate __________________ as a candidate for election to the
office of _________________ in the municipality of __________________, for
the:
full term or
unexpired term ending ________________, to be voted
for at the next general election."

On the form, the instruction "[f]ill in the appropriate date" is under the
blanks following the phrase "unexpired term ending." (Id.)

In two of the five part-petitions, Wearsch specified in the statement of
candidacy section that he desired to be a candidate for the office of Council at
Large for the "full term * * * ending 12-31-01," whereas in the statement of
candidacy section on the other three part-petitions, Wearsch listed his candidacy
for a "full term * * * ending 12-31-03." In the nominating petition section of all
five part-petitions, Wearsch listed himself as a candidate for Council at Large for
the "full term * * * ending 12-31-01 to be voted for at the next general election."
In other words, in all of the part-petitions, in the statement of candidacy and
nominating petition sections, Wearsch checked the boxes next to "full term," and
he did not check the boxes next to "unexpired term ending," but he did insert
either "12-31-01" or "12-31-03" in the blanks next to "unexpired term ending."

On the November 6, 2001 general election ballot for Avon, there are three
available Council at Large seats. All three seats are for full terms ending
December 31, 2003, not for full terms ending December 31, 2001. The three
candidates receiving the highest vote total will be declared the successful
candidates.

On September 4, 2001, relator, Gerald W. Phillips, an attorney who is an
elector of Avon, filed a written protest pursuant to R.C. 3513.263 with
respondent, Lorain County Board of Elections, against Wearsch's petition.
Phillips claimed that the petition was defective because two part-petitions
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January Term, 2001
contained an incorrect term-ending date of December 31, 2001, in the statement
of candidacy section and all five part-petitions had the same incorrect term-ending
date of December 31, 2001, in the nominating petition section.

By letter dated September 21, Phillips contended that the board had failed
to promptly set the hearing on his protest, and he requested an immediate protest
hearing. On September 24, Phillips submitted a memorandum in support of his
protest with the board. In his memorandum, Phillips asserted that specifying the
appropriate term of office in a nominating petition is an absolute requirement of
R.C. 3513.261 that requires strict compliance. Phillips did not specifically assert
that Wearsch had failed to substantially comply with R.C. 3513.261.

On the same date that Phillips submitted his memorandum, September 24,
2001, the board held a hearing on Phillips's protest, at the conclusion of which the
board unanimously denied the protest and reaffirmed the board's certification and
validation of Wearsch's petition and his placement on the November 6, 2001
general election ballot.

On October 3, 2001, Phillips filed this action for a writ of prohibition to
prevent the placement of Wearsch's name on the November 6, 2001 general
election ballot and the counting and canvassing of any ballots for Wearsch at the
election. Phillips also requested a writ of mandamus to compel the board to grant
Phillips's protest, to reject the Wearsch petition, and to prohibit the placement of
his name on the November 6, 2001 general election ballot. The board filed an
answer, and the parties filed evidence and briefs pursuant to the expedited
election schedule set forth in S.Ct.Prac.R. X(9).

Phillips requests writs of prohibition and mandamus to prevent the board
from placing Wearsch's name on the November 6, 2001 general election ballot
and counting any votes for him at the election. For the following reasons,
Phillips's claims lack merit.
Mandamus
3

SUPREME COURT OF OHIO

Phillips's mandamus claim is an ill-conceived request for prohibitory
injunctive relief, i.e., to prevent Wearsch's candidacy at the November 6, 2001
general election. "In general, if the allegations of a complaint for a writ of
mandamus indicate that the real objects sought are a declaratory judgment and a
prohibitory injunction, the complaint does not state a cause of action in
mandamus and must be dismissed for want of jurisdiction." State ex rel. Grendell
v. Davidson (1999), 86 Ohio St.3d 629, 634, 716 N.E.2d 704, 710. We have
applied this rule to election cases. State ex rel. Youngstown v. Mahoning Cty. Bd.
of Elections (1995), 72 Ohio St.3d 69, 70-71, 647 N.E.2d 769, 771. Based on the
foregoing precedent, we lack jurisdiction over Phillips's mandamus claim and it is
dismissed.
Prohibition

Phillips also requests a writ of prohibition to prevent Wearsch's candidacy
on the November 6, 2001 general election ballot. In order to be entitled to a writ
of prohibition, Phillips must establish that (1) the board is about to exercise or has
exercised judicial or quasi-judicial power, (2) the exercise of that power is
unauthorized by law, and (3) denial of the writ will cause injury for which no
other adequate remedy in the ordinary course of law exists. See State ex rel.
Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 241, 736
N.E.2d 893, 895. Phillips has established that the board has exercised quasi-
judicial power in denying his protest and that denial of the writ will cause injury
for which he lacks an adequate remedy in the ordinary course of law.

Therefore, in order to be entitled to the requested writ of prohibition,
Phillips must establish that the board engaged in fraud or corruption, abused its
discretion, or acted in clear disregard of applicable legal provisions. State ex rel.
Baur v. Medina Cty. Bd. of Elections (2000), 90 Ohio St.3d 165, 166, 736 N.E.2d
1, 2. Phillips asserts that the board abused its discretion and clearly disregarded
4

January Term, 2001
applicable law, including R.C. 3513.261, in denying his protest and certifying
Wearsch's candidacy.

R.C. 3513.261 governs the form of the nominating petition and statement
of candidacy here and provides:

"The form of the nominating petition and statement of candidacy shall be
substantially as follows:
"STATEMENT OF CANDIDACY

"I, ................ (Name of candidate), the undersigned, hereby declare
under penalty of election falsification * * * that I am a qualified elector in the
precinct in which my voting residence is located. I hereby declare that I desire to
be a candidate for election to the office of ................ in the ................
(State, District, County, City, Village, Township, or School District) for the
................ (Full term or unexpired term ending ..................) at the General
Election to be held on the ............. day of ...................., ................ .

"* * *
"NOMINATING PETITION

"We, the undersigned, qualified electors of the state of Ohio, whose voting
residence is in the County, City, Village, Ward, Township or Precinct set opposite
our names, hereby nominate ................. as a candidate for election to the office
of ................ in the .................. (State, District, County, City, Village,
Township, or School District) for the ............. (Full term or unexpired term
ending ...................) to be voted for at the general election next hereafter to be
held, and certify that this person is, in our opinion, well qualified to perform the
duties of the office or position to which the person desires to be elected."
(Emphasis added.)

Phillips claims that by using the incorrect term-ending date for the
nominating petition portion of all five part-petitions and for the statement of
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SUPREME COURT OF OHIO
candidacy on two of the five part-petitions, the petition failed to comply with the
strict form requirements of R.C. 3513.261.

Admittedly, the settled rule is that election laws are mandatory and require
strict compliance, and that substantial compliance is acceptable only when an
election statute expressly permits it. State ex rel. Citizens for Responsible
Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167, 169, 602
N.E.2d 615, 617. R.C. 3513.261, however, expressly permits substantial
compliance with the form of the nominating petition and statement of candidacy.
State ex rel. Osborn v. Fairfield Cty. Bd. of Elections (1992), 65 Ohio St.3d 194,
196-197, 602 N.E.2d 636, 638 ("R.C. 3513.261 requires only substantial
compliance with the form of the statement of the candidacy"). Therefore,
Wearsch needed only to substantially comply with the form requirements in R.C.
3513.261.

The cases cited by Phillips in his protest and supplemental memorandum
in support of his proposition that Wearsch failed to strictly comply with the
requirements of R.C. 3513.261 are inapposite. See, e.g., State ex rel. Clinard v.
Greene Cty. Bd. of Elections (1990), 51 Ohio St.3d 87, 554 N.E.2d 895; State ex
rel. Calhoun v. Scioto Cty. Bd. of Elections (1988), 36 Ohio St.3d 164, 522
N.E.2d 49; State ex rel. McGinley v. Bliss (1948), 149 Ohio St. 329, 37 O.O. 21,
78 N.E.2d 715. These cases construed strict statutory requirements regarding the
commencement date for declarations of judicial candidacies. See R.C. 3513.08.
The requirements contained in R.C. 3513.261 regarding the form of the
nominating petition and statement of candidacy demand only substantial
compliance. Osborn, 65 Ohio St.3d at 196-197, 602 N.E.2d at 638.

Phillips now claims that Wearsch also failed to substantially comply with
R.C. 3513.261. But he never specifically raised this argument in his protest or his
supplemental memorandum in support of his protest, instead confining his
contention to the petition's failure to strictly comply with allegedly mandatory
6

January Term, 2001
statutory requirements. See State ex rel. Cooker Restaurant Corp. v. Montgomery
Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 308, 686 N.E.2d 238, 243
("[B]ecause the alleged substantive petition defects now raised by Meyer in this
action were not specified in her protest, we need not consider these issues").

Even assuming that Phillips's claim is properly before us, it lacks merit.
In State ex rel. Hanna v. Milburn (1959), 170 Ohio St. 9, 9 O.O.2d 332, 161
N.E.2d 891, we denied a writ of prohibition to prevent a board of elections and its
members and clerk from certifying and placing names of candidates who had put
the incorrect commencement term of the elective offices on their nominating
petitions. In so holding, we concluded that R.C. 3513.261 requires that a
candidate specify only whether he is running for a full term or an unexpired term
and if it is an unexpired term, he must indicate the date when the term ends:

"An examination of this statute shows that in no place is a candidate
required to set forth the date of the commencement of his term. It is only required
that the candidate specify whether he is running for a full term or an unexpired
term and if it is an unexpired term then he must set forth not the date of the
commencement of the term but rather the date when such term ends. The
inclusion in the present case of the date of the commencement of the terms
constituted a mere surplusage which in no way affected the validity of the
petitions." (Emphasis added in part.) Id. at 13, 9 O.O.2d at 334, 161 N.E.2d at
894.
Based
on
Hanna, once Wearsch designated in his nominating petition and
statement of candidacy that he desired to be a candidate for election to the office
of Council at Large in Avon for the full term to be held at the general election on
November 6, 2001, he did not need to put a date when the term ended. This
additional information--which related to candidates running for an unexpired
term--constituted mere surplusage that in no way affected the validity of the
petition. All of the available Council at Large seats had the same term of office.
7

SUPREME COURT OF OHIO

In contrasting the R.C. 3513.261 requirements to R.C. 3513.08, which
contains a strict declaration-of-candidacy requirement for judicial candidates to
specify a commencement of term date, we held:

"It is seen that the General Assembly recognized that because of the
staggered dates such information is necessary for an accurate description of the
office. No such necessity exists in the present case, as a mere description of the
office by title is sufficient.

"Where a public office is of such a nature that in accurately describing it it
is necessary to state not only the title but also the time of its commencement, then
failure to accurately state the date of commencement of the term will invalidate a
nominating petition. On the other hand, where the public office sought is of such
a nature that it may be accurately described without pin pointing the date of the
commencement of the term, a slight error in the insertion of the date which does
not mislead the signers of the petition does not invalidate the petition." Id. at 14,
9 O.O.2d at 334, 161 N.E.2d at 895.

Similarly, under R.C. 3513.261, the public office sought by Wearsch is
accurately described by noting that it is for a full term without specifying the end
of the term. The term-ending dates are not required to distinguish between races.
There is also no evidence that term dates added by Wearsch misled petition
signers so that electors would not have signed the petition if they had known of
the correct ending date for the full term sought by Wearsch. This case is not
comparable to State ex rel. Wiethe v. Hamilton Cty. Bd. of Elections (1954), 98
Ohio App. 89, 57 O.O. 181, 128 N.E.2d 121, cited by Phillips, because in that
case, the person seeking the elective office stated that he was a candidate for a
precinct office instead of a ward office.

Finally, Phillips claims that he is entitled to the writ because the board did
not properly set the protest hearing under R.C. 3513.263, which provides that
"[u]pon the filing of such protests, the election officials with whom it is filed shall
8

January Term, 2001
promptly fix the time and place for hearing it." The purpose, however, of the
timing requirements of R.C. 3513.263 is to have election officials act promptly;
they are not designed to render invalid an otherwise valid petition nor to give
validity to an invalid petition when not acted upon within the proper time. See,
e.g., State ex rel. Svete v. Geauga Cty. Bd. of Elections (1965), 4 Ohio St.2d 16,
17, 33 O.O.2d 139, 140, 212 N.E.2d 420, 421 ("The mere failure of the board to
declare the petition void within the statutory time does not render the petition
valid since the statute does not state that the petition shall be valid if not declared
void by the board within the time named in the statute"); State ex rel. Hinkle v.
Franklin Cty. Bd. of Elections (1991), 62 Ohio St.3d 145, 150, 580 N.E.2d 767,
771. Phillips cites no applicable authority to the contrary.

Based on the foregoing, the board of elections neither abused its discretion
nor clearly disregarded R.C. 3513.261 in denying Phillips's protest. No vital
public purpose or public interest is served by denying Wearsch's candidacy here,
and we "must avoid unduly technical interpretations that impede the public policy
favoring free, competitive elections." State ex rel. Ruehlmann v. Luken (1992),
65 Ohio St.3d 1, 3, 598 N.E.2d 1149, 1151; cf. Stern v. Cuyahoga Cty. Bd. of
Elections (1968), 14 Ohio St.2d 175, 180, 43 O.O.2d 286, 289, 237 N.E.2d 313,
317 ("Absolute 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"). Therefore, Phillips has not established his
entitlement to the requested extraordinary relief in prohibition and we deny the
writ.
Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________
9

SUPREME COURT OF OHIO

Phillips & Co., L.P.A., and Gerald W. Phillips, pro se.

Gregory A. White, Lorain County Prosecuting Attorney, and Gerald A.
Innes, Assistant Prosecuting Attorney, for respondent.
__________________
10