[Cite as State ex rel. Baryak v. Trumbull Cty. Bd. of Elections, 2019-Ohio-4655.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO ex rel. JOHN BARYAK,                       :           PER CURIAM OPINION

                 Relator,                                :
                                                                     CASE NO. 2019-T-0040
        - vs -                                           :

TRUMBULL   COUNTY                   BOARD          OF :
ELECTIONS,

                 Respondent.                             :


Original Action for Writ of Prohibition

Judgment: Petition dismissed.


Gregory A. Beck and Tonya J. Rogers, Baker, Dublikar, Beck, Wiley and Mathews, 400
South Main Street, North Canton, Ohio 44720. (For Relator).

Dennis Watkins, Trumbull County Prosecutor, and William J. Danso, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, Ohio
44481-1092. (For Respondent).



PER CURIAM.

        {¶1}     Relator, John Baryak, seeks a writ of prohibition against respondent, the

Trumbull County Board of Elections, to prevent a recall election on November 5, 2019.

Respondent moves to dismiss the amended petition arguing the allegations fail to

demonstrate that it lacks jurisdiction to deem the recall petition proper and conduct the

election. The motion to dismiss is granted.

        {¶2}     Relator is a resident of Newton Falls, Ohio, a charter city, and serves as
its 2nd Ward Councilman. Phillip Beer is also a resident and city councilman. On

October 15, 2018, Beer filed a petition with respondent seeking recall and removal of

relator from office. The recall petition has 27 valid signatures of 2nd Ward residents

and alleges that relator has failed to fairly and properly conduct city business.

       {¶3}   At the time the petition was filed, the Newton Falls Charter stated that

Ohio statutory law governs recalls. Pursuant to R.C. 705.92(A), a recall petition must

be signed by qualified electors equal in number to at least 15 percent of the total votes

cast at the most recent regular municipal election. It also requires the petition to be

submitted to the county board of elections.

       {¶4}   On November 6, 2018, the Newton Falls electorate passed an amendment

to its city charter governing recall. As amended, Section 4, Article VII of the charter

states that a recall petition must be submitted to the Clerk of Council, who then must

determine whether the petition satisfies recall requirements. Section 4 further states

that a recall petition for a ward councilman must be signed by qualified electors equal in

number to at least 15 percent of the total votes cast at the most recent regular municipal

election.

       {¶5}   In February 2019, after the charter amendment became effective, relator

filed a protest with respondent, challenging the validity of the recall petition against him.

Relator asserted that respondent lacked jurisdiction to determine the validity of the

petition in light of the recent amendments. In the alternative, relator argued that if R.C.

705.92 applies, the recall petition lacks sufficient signatures to satisfy the 15 percent

requirement because the recall petition needed signatures of at least 15 percent of all

citywide voters who participated in the most recent regular municipal election, not 15




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percent of Ward 2 voters.

       {¶6}    After conducting an evidentiary hearing, respondent issued a written

decision denying relator’s protest in part.         Respondent concluded that the charter

amendment has no effect on its jurisdiction over the recall petition and that the 27 valid

signatures on the petition satisfies the 15 percent requirement. The only aspect of

relator’s protest granted by respondent was his contention that it was too late to place

the recall issue on the May 2019 primary election ballot. Therefore, respondent ordered

the recall to be on the November 2019 general election ballot.

       {¶7}    Initially,   relator   challenged     respondent’s     decision   through   an

administrative appeal to the Trumbull County Court of Common Pleas. However, the

common pleas court granted respondent’s motion to dismiss. Instead of pursuing a

direct appeal, relator filed this action for a writ of prohibition.

       {¶8}    As the basis of his amended prohibition petition, relator re-asserts the

primary arguments he raised in his protest to the recall. He contends that the recall

election cannot proceed because: (1) respondent no longer has jurisdiction over the

recall petition due to the amendment that now grants such authority to the Clerk of

Council; and (2) respondent misapplied R.C. 705.92(A) in finding the recall petition has

enough valid signatures to satisfy the 15 percent requirement. In moving to dismiss

under Civ.R. 12(B)(6), respondent does not challenge the factual allegations in the

prohibition petition. Rather, respondent maintains that relator cannot establish a lack of

jurisdiction or error in its conclusions as a matter of law. We agree.

       {¶9}    “As a general proposition, * * * a prohibition claim can be subject to

dismissal under Civ.R. 12(B)(6) when the nature of the relator’s allegations are such




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that, even if the allegations are presumed true and interpreted in a manner most

favorable to him, it would still be beyond doubt that he will not be able to prove a set of

facts entitling him to the writ.”    State ex rel. Feathers v. Gansheimer, 11th Dist.

Ashtabula No. 2006-A-0038, 2007-Ohio-2858, ¶ 6.          Accord. State ex rel. Conkle v.

Sadler, 99 Ohio St.3d 402, 2003-Ohio-4124, 792 N.E.2d 1116, ¶ 8.

       {¶10} When a writ of prohibition is sought in regard to a decision made by a

county board of elections, the writ will not lie unless the relator can establish “that the

board has exercised or is about to exercise quasi-judicial power, that the exercise of

that power is unauthorized by law, and that denying the writ will result in injury for which

no other adequate remedy exists in the ordinary course of law.” State ex rel. Tam

O’Shanter Co. v. Stark Cty. Bd. of Elections, 151 Ohio St.3d 134, 2017-Ohio-8167, 86

N.E.3d 332, ¶ 14.

       {¶11} The first and third elements are relatively straightforward. Regarding the

first element, a county board of elections exercises quasi-judicial power when it holds a

hearing under R.C. 3501.39 and denies a relator’s protest. State ex rel. McCord v.

Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346, 2005-Ohio-4758, 835 N.E.2d 336,

¶ 28. Even when the exercise of quasi-judicial authority has already occurred, the writ

may still be granted to stop the placement of a name or issue on the ballot, so long as

the election has not taken place. Id.

       {¶12} As to the third element for a writ of prohibition, the relator is deemed to

have no adequate legal remedy when the proximity of the election will take away his

ability to pursue the appellate process in relation to other forms of relief, such as an

injunction. State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections, 72 Ohio St.3d 289,




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292, 649 N.E.2d 1205 (1995).

       {¶13} Here, the allegations in relator’s petition are sufficient to satisfy the first

and third elements of a prohibition claim. As noted, relator alleges that respondent

denied his protest in part after holding an evidentiary hearing; hence, respondent has

exercised quasi-judicial power in ordering that the recall be placed on the November

2019 general election ballot. Nevertheless, even though that quasi-judicial decision has

been issued, relief can still be afforded by prohibiting respondent from placing the recall

on the ballot. In addition, since relator’s administrative appeal was not decided until five

months before the November 2019 general election, an appeal does not provide

adequate remedy.

       {¶14} Resolution therefore turns on whether relator’s factual allegations when

presumed true and construed in a manner most favorable to him establish that

respondent has exercised power not authorized by law.

       {¶15} “‘In extraordinary actions like prohibition challenging the quasi-judicial

decision of a board of elections, “the applicable standard is whether 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, quoting State ex rel. Crossman Communities of Ohio, Inc.

v. Greene Cty. Bd. of Elections (1999), 87 Ohio St.3d 132, 135-136, 717 N.E.2d 1091.

An abuse of discretion evidences an attitude that is unreasonable, arbitrary, or

unconscionable. State ex rel. Miller v. Cuyahoga Cty. Bd. of Elections, 103 Ohio St.3d

477, 2004-Ohio-5532, 817 N.E.2d 1, ¶ 16.” (Footnote omitted.) McCord, 2005-Ohio-

4758, at ¶ 30.




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       {¶16} Relator’s petition does not assert that respondent engaged in fraud or

corruption in denying his protest to the recall petition. Similarly, his claim does not

allege that respondent abused its discretion. Instead, relator contends that respondent

misapplied, and thus disregarded, the legal provisions for determining the validity of the

recall petition against him.

       {¶17} First, relator argues that respondent erred in not applying the amendment

to the Newton Falls City Charter which was approved by the electorate on November 6,

2018. As stated, the prior charter provision states that Ohio law applies when seeking

to recall a city officer. However, the amended provision provides a different procedure,

including filing with the Clerk of Council.      Relator maintains that since the recall

amendment was approved before respondent held the hearing on his protest, it governs

and respondent was required to apply the amended provision.

       {¶18} In addressing this argument in its decision, respondent concluded that it

had jurisdiction to determine the validity of the recall petition because the pre-

amendment version of the Newton Falls City Charter governs because the amended

recall provision does not retroactively apply.

       {¶19} The general constitutional prohibition against retroactive enforcement of

new laws is applicable to municipal charter amendments. State ex rel. Youngstown v.

Mahoning Cty. Bd. of Elections, 72 Ohio St.3d 69, 73, 647 N.E.2d 769 (1995). The first

step in any retroactivity analysis is to determine whether the new enactment was

intended to be applied retrospectively. Van Fossen v. Babcock & Wilcox Co., 36 Ohio

St.3d 100, 522 N.E.2d 489 (1988), paragraph one of the syllabus. R.C. 1.48 provides

that “[a] statute is presumed to be prospective in its operation unless expressly made




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retrospective.”

       {¶20} Here, the amended recall provision does not expressly state that it applies

retroactively. It therefore applies prospectively.

       {¶21} While acknowledging that the recall petition against him was filed before

the amended recall provision was approved, relator contends that respondent was

obligated to follow the amended provision in its February 2019 hearing on his protest.

He also argues that such an application of the amended provision would not violate the

prohibition against retroactive application since the hearing occurred after the

amendment became effective.          However, once a claim or petition is pending for

consideration, the date of the hearing is not controlling for determining retroactively.

Instead, the date of filing controls. See Sanden v. City of Cincinnati, 174 Ohio App.3d

280, 2007-Ohio-6866, 881 N.E.2d 919, ¶ 12-13 (1st Dist.) (amendment to a workers’

compensation statute cannot be applied retroactively to a police officer’s claim that was

filed before the effective date of the amendment).

       {¶22} The amended charter provision applies prospectively to recall petitions

filed after its effective date.   Since Beer’s petition was filed before the amendment

became effective, the prior charter provision governs. And because the prior provision

states that Ohio law governs and R.C. 705.92 grants a county board of elections the

authority to review recall petitions, respondent did not exceed its jurisdiction in holding

an evidentiary hearing and rendering a final decision on relator’s protest.

       {¶23} Relator also contends that respondent misapplied R.C. 705.92(A).          He

argues that Beer’s recall required valid signatures of at least 15 percent of the voters

who participated in the most recent regular municipal election citywide, not 15 percent




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of the votes from the 2nd Ward.

         {¶24} R.C. 705.92 governs removal from office by recall and states:

         {¶25} “Notwithstanding Section 38 of Article II, Ohio Constitution, or any other

provisions in the Revised Code to the contrary, any elective officer of a municipal

corporation may be removed from office by the qualified voters of such municipal

corporation. The procedure to effect such removal shall be:

         {¶26} “(A) A petition signed by qualified electors equal in number to at least

fifteen per cent of the total votes cast at the most recent regular municipal election, and

demanding the election of a successor to the person sought to be removed, shall be

filed with the board of elections. A petition shall contain the required number of valid

signatures upon submission to the board of elections. * * * The form, sufficiency, and

regularity of any such petition shall be determined as provided in the general elections

laws.”

         {¶27} Under the unambiguous language of R.C. 705.92(A), a recall petition

requires signature of “qualified electors.” The words “qualified electors” are also used in

R.C. 3501.38, which delineates general requirements that all election petitions must

meet, and it states:

         {¶28} “All declarations of candidacy, nominating petitions, or other petitions

presented to or filed with the secretary of state or a board of elections or with any other

public office for the purpose of becoming a candidate for any nomination or office or for

the holding of an election on any issue shall, in addition to meeting the other specific

requirements prescribed in the sections of the Revised Code relating to them, be

governed by the following rules:




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      {¶29} “(A) Only electors qualified to vote on the candidacy or issue which is the

subject of the petition shall sign a petition. Each signer shall be a registered elector

pursuant to section 3503.01 of the Revised Code. The facts of qualification shall be

determined as of the date when the petition is filed.” (Emphasis added).

      {¶30} Under the unambiguous language of R.C. 3501.38(A), for a person to be a

qualified elector, he or she must be a registered voter. As that statute indicates, the

registered voter requirements are set forth in R.C. 3503.01(A):

      {¶31} “Every citizen of the United States who is the age of eighteen years or

over and who has been a resident of the state thirty days immediately preceding the

election at which the citizen offers to vote, is a resident of the county and precinct in

which the citizen offers to vote, and has been registered to vote for thirty days, has the

qualifications of an elector and may vote at all elections in the precinct in which the

citizen resides.” (Emphasis added).

      {¶32} A “precinct” is a district inside a county, established by the county board of

elections, within which all qualified electors can vote at the same polling place. R.C.

3501.01(Q). As a result, for voting purposes, a ward within a municipality is comprised

of one or more precincts.

      {¶33} Thus, in light of R.C. 705.92(A), 3501.38(A), and 3503.01(A), a person is

deemed a “qualified elector” when he or she is registered to vote in the county and

precinct in which he or she resides. For purposes of R.C. 705.92(A), therefore, that a

person is a resident of a municipality does not make him or her “qualified” to sign a

recall petition for a ward councilman. Rather, a recall petition may only be signed by

those persons who are registered to vote within that councilman’s ward. To this extent,




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only those persons who are qualified to vote for a candidate as ward councilman can

properly sign a recall petition after he has taken office.

       {¶34} Given that only qualified electors of Ward 2 are eligible to sign a recall

petition, Beer was required to obtain the signatures of 15 percent of the total votes cast

in the 2nd Ward at the most recent regular election.         Requiring Beer to obtain 15

percent of all voters citywide, when the pool of qualified electors is limited to the

residents of Ward 2, would lead to an absurd result.

       {¶35} In his amended prohibition petition, relator admits that 165 votes were cast

in the city’s most recent regular election. Given that Beer’s recall petition had 27 valid

signatures, an amount greater than 15 percent of 165, respondent properly found the

petition was proper. Thus, placement of the recall issue on the November 2019 ballot is

warranted.

       {¶36} As a separate contention, relator asserts that the question of recall is moot

because he is running for re-election on the November 2019 ballot and the results of the

recall election would have no effect on his eligibility to serve the new term. Yet, relator

acknowledges that if he is elected but loses the recall, there would be a two-month

period during which he would not serve as councilman. Accordingly, the recall election

is not moot.

       {¶37} Construing relator’s allegations in a manner most favorable to him, he can

prove no set of facts entitling him to a writ of prohibition.    Therefore, respondent’s

motion to dismiss is granted.         Relator’s amended prohibition petition is hereby

dismissed in its entirety.




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THOMAS R. WRIGHT, P.J., CYNTHIA WESTCOTT RICE, J., TIMOTHY P. CANNON,
J., concur.




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