[Cite as State ex rel. Lucas Cty. Republican Party Executive Commt. v. Brunner, 125 Ohio
St.3d 427, 2010-Ohio-1873.]




     THE STATE EX REL. LUCAS COUNTY REPUBLICAN PARTY EXECUTIVE
                    COMMITTEE v. BRUNNER, SECY. OF STATE.
     [Cite as State ex rel. Lucas Cty. Republican Party Executive Commt. v.
                 Brunner, 125 Ohio St.3d 427, 2010-Ohio-1873.]
Elections — Mandamus — County boards of elections — R.C. 3501.07 — Party’s
       recommendation of new member of county board of elections to secretary
       of state — R.C. 3517.05 — State party’s executive committee has duty to
       resolve dispute between entities when both claim to be rightful county
       executive committee — Writ to compel secretary of state to appoint person
       recommended by one of two competing entities claiming to be county
       executive committee — Secretary of state lacks authority to appoint
       recommended appointee when entity making recommendation has not
       been certified by state central committee as rightful executive committee
       for county — Secretary of state, in absence of state committee’s resolution
       of dispute or final judicial determination, shall make appointment — Writ
       denied.
    (No. 2010-0435 — Submitted April 27, 2010 — Decided April 30, 2010.)
                                   IN MANDAMUS.
                               __________________
       Per Curiam.
       {¶ 1} This is an original action for a writ of mandamus to compel
respondent, Secretary of State Jennifer Brunner, to appoint Jon Stainbrook to the
Lucas County Board of Elections as recommended by relator, one of two
competing groups claiming to be the Lucas County Republican Party Executive
Committee. Because the secretary of state did not abuse her discretion or clearly
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disregard applicable law in rejecting the recommendations of the two competing
groups, we deny the writ.
                                      Facts
       {¶ 2} On January 9, 2010, the faction that claims to be the Lucas County
Republican Party Executive Committee with Jon Stainbrook as its chairperson
(“Stainbrook faction”) recommended that Secretary of State Brunner appoint
Stainbrook to the Lucas County Board of Elections for the four-year term
beginning March 1, 2010. The secretary of state received the recommendation on
January 11.
       {¶ 3} On January 15, 2010, the faction with Jeffrey Simpson as its
chairperson that also claims to be the Lucas County Republican Party Executive
Committee (“Simpson faction”) recommended that Secretary of State Brunner
appoint David W. Dmytryka to the Lucas County Board of Elections for the same
four-year term. The secretary of state received this recommendation on January
19.
       {¶ 4} By letter dated January 25, the Stainbrook faction requested that
the secretary of state respond to certain legal questions concerning the two
factions and stated that the secretary could not permit the board of elections to
continue acknowledging the Simpson faction as a lawfully organized group. An
elections counsel for the secretary of state replied that the secretary would not
give an advisory opinion because R.C. 3517.05 places the duty on the state central
committee of the Ohio Republican Party to resolve the dispute between the two
rival factions, and the issue was the subject of litigation pending in the Lucas
County Court of Common Pleas. The board of elections had certified to the Ohio
Republican Party Central Committee the lists of the officers and members of the
rival factions on January 12.
       {¶ 5} On February 18, 2010, in Gallagher v. Lucas Cty. Bd. of Elections,
Lucas C.P. No. CI-0201001192-00, the Lucas County Court of Common Pleas




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held that neither competing group had complied with the applicable requirements
of R.C. 3517.04 for organizing and ordered the state central committee to resolve
the matter.
          {¶ 6} On March 1, the secretary of state rejected both factions’
recommended appointees for the board of elections.          The secretary of state
determined that she was unable to accept either recommendation “[u]ntil either
the Lucas County Republican Central and Executive Committee is able to
organize according to law, or until one of the factions or some other configuration
of members is recognized by either a court or the Ohio Republican Party State
Central Committee as the duly organized committee.” The secretary of state
specified that she took no position on which faction was the rightful committee
because by statute, that was the responsibility of the Ohio Republican Party State
Central Committee. On that same date, the secretary of state appointed Benjamin
F. Marsh to the board of elections for the four-year term beginning that day.
          {¶ 7} On March 9, the Stainbrook faction filed this action for a writ of
mandamus to compel the secretary of state to appoint Stainbrook to the board of
elections and for a writ of prohibition to invalidate the secretary’s appointment of
Marsh to the board. The Stainbrook faction also requested a peremptory other
writ, including an emergency other writ, precluding the appointment of Marsh. A
few days later, we granted an alternative writ on the mandamus claim, dismissed
the prohibition claim, and denied the requests for an emergency other writ and
emergency alternative writ. State ex rel. Lucas Cty. Republican Party Executive
Commt. v. Brunner, 124 Ohio St.3d 1513, 2010-Ohio-930, 923 N.E.2d 156. The
secretary of state filed an answer, and the parties submitted evidence and briefs.
          {¶ 8} This cause is now before the court for our consideration of the
merits.
                                  Legal Analysis




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       {¶ 9} The Stainbrook faction requests a writ of mandamus to compel the
secretary of state to appoint Stainbrook to the board of elections. “To be entitled
to the requested relief, relator[] must establish a clear legal right to the requested
relief, a corresponding clear legal duty on the part of the secretary of state to
provide it, and the lack of an adequate remedy in the ordinary course of the law.”
State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-Ohio-5838, 876
N.E.2d 1231, ¶ 13. In extraordinary-writ actions challenging a decision of the
secretary of state, the standard is whether the secretary engaged in fraud,
corruption, or abuse of discretion, or acted in clear disregard of applicable law.
State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-Ohio-1374, 926 N.E.2d
617, ¶ 26. There is no evidence or argument of fraud or corruption here, so the
dispositive issue is whether the secretary of state abused her discretion or clearly
disregarded applicable law by rejecting the Stainbrook faction’s recommended
appointee and appointing her own selection.
       {¶ 10} The Stainbrook faction asserts that the secretary of state abused her
discretion and clearly disregarded R.C. 3501.07 by rejecting its recommended
appointee, Stainbrook, for the four-year term on the board of elections
commencing March 1, 2010. The pertinent portions of the relevant statutes, R.C.
3501.07 and 3517.05, provide:
       {¶ 11} “At a meeting held not more than sixty nor less than fifteen days
before the expiration date of the term of office of a member of the board of
elections, or within fifteen days after a vacancy occurs in the board, the county
executive committee of the major political party entitled to the appointment may
make and file a recommendation with the secretary of state for the appointment of
a qualified elector. The secretary of state shall appoint such elector, unless he
has reason to believe that the elector would not be a competent member of such
board. In such cases the secretary of state shall so state in writing to the chairman
of such county executive committee, with the reasons therefor, and such




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committee may either recommend another elector or may apply for a writ of
mandamus to the supreme court to compel the secretary of state to appoint the
elector so recommended.       In such action the burden of proof to show the
qualifications of the person so recommended shall be on the committee making
the recommendation. If no such recommendation is made, the secretary of state
shall make the appointment.” (Emphasis added.) R.C. 3501.07.
       {¶ 12} “All party committees, the selection of which is provided for in
sections 3517.02 and 3517.03 of the Revised Code, shall, except as otherwise
provided in this section, serve until the date of the organizational meeting
provided for in section 3517.04 of the Revised Code. * * *
       {¶ 13} “If more than one organized group claims to be the rightful county
central or executive committee, each such group shall file a list of its officers and
members as provided in section 3517.06 of the Revised Code, and the board of
elections with which such lists are filed shall certify them to the state central
committee of the party concerned. The state central committee shall meet within
thirty days after receipt of such certification and forthwith determine and certify
which committee shall be recognized as the rightful county central or executive
committee.” (Emphasis added.) R.C. 3517.05.
       {¶ 14} “Our paramount concern in construing statutes is legislative
intent.” State Farm Mut. Auto. Ins. Co. v. Grace, 123 Ohio St.3d 471, 2009-
Ohio-5934, 918 N.E.2d 135, ¶ 25. “To discern this intent, we must ‘read words
and phrases in context according to the rules of grammar and common usage.’ ”
State ex rel. Mager v. State Teachers Retirement Sys. of Ohio, 123 Ohio St.3d
195, 2009-Ohio-4908, 915 N.E.2d 320, ¶ 14, quoting State ex rel. Lee v. Karnes,
103 Ohio St.3d 559, 2004-Ohio-5718, 817 N.E.2d 76, ¶ 23. Under the standard
for construing statutes in pari materia, statutes relating to the same subject matter
must be construed together to give full effect to the provisions. State ex rel.
Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 46.



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       {¶ 15} “The statutory framework [governing appointments to county
boards of elections] establishes a bipartisan composition of the state’s boards of
elections, which provides county executive committees of the two major political
parties with the right to recommend appointees who shall be appointed by the
secretary of state.    [Under R.C. 3501.07,] [t]he Secretary may reject the
recommended appointee if she has reason to believe that an elector would not be a
competent member of the board.” State ex rel. Summit Cty. Republican Party
Executive Commt. v. Brunner, 118 Ohio St.3d 515, 2008-Ohio-2824, 890 N.E.2d
888, ¶ 2.
       {¶ 16} The Stainbrook faction claims that because its recommended
appointee was not rejected for incompetence, the secretary of state had a duty
under R.C. 3501.07 to appoint Stainbrook. But this claim ignores R.C. 3517.05,
which must be read in pari materia with R.C. 3501.07 in cases where, as here, the
secretary of state receives conflicting recommendations from rival organized
groups claiming to be the rightful county executive committee of the major
political party entitled to the appointment. Upon so construing the statutes, we
conclude that the General Assembly manifestly intended that the state central
committee of the applicable major political party determine the issue. See R.C.
3517.05. There is nothing in R.C. 3501.07 and 3517.05 that imposes any duty on
the secretary of state to make this determination.
       {¶ 17} We reached a similar conclusion in State ex rel. O’Neil v. Griffith
(1940), 136 Ohio St. 526, 17 O.O. 160, 27 N.E.2d 142, paragraph two of the
syllabus, in which we construed different, predecessor versions of R.C. 3501.07
and 3517.05. We held that “when conflicting recommendations are made by
more than one committee, each claiming to be the rightful executive committee, *
* * the Secretary of State is authorized and required to call upon the state central
committee of such party to determine and certify which is the rightful county
executive committee of such party.” In O’Neil, the applicable version of the




                                         6
                                January Term, 2010




predecessor statute to R.C. 3501.07 included the following language, which is no
longer in the statute:
        {¶ 18} “If recommendations are made by more than one committee, each
claiming to be the rightful executive committee, the secretary of state, before
making any such appointment, shall notify the chairman of the state central
committee of such political party, which state central committee shall certify
which is the rightful committee of such party, and such committee so certified
shall be recognized by the secretary of state. If the state central committee fails to
make such certification within ten days after the giving of such notice, the
Secretary of State shall determine which of the contesting committees is the
rightful executive committee, and shall make the appointments as provided in the
preceding section.” (Emphasis added.) G.C. 4785-9, 118 Ohio Laws 223.
        {¶ 19} This entire paragraph was deleted from the statute in 1941. 119
Ohio Laws 741, 741-742. But the state central committee retains the authority
granted in the predecessor to R.C. 3517.05 to determine which of the competing
groups shall be recognized as the rightful county executive committee. The
secretary of state’s authority to make that determination was eliminated long ago.
“ ‘It is axiomatic that in mandamus proceedings, the creation of the legal duty that
a relator seeks to enforce is the distinct function of the legislative branch of
government, and courts are not authorized to create the legal duty.’ ” State ex rel.
Gessner v. Vore, 123 Ohio St.3d 96, 2009-Ohio-4150, 914 N.E.2d 376, ¶ 4,
quoting State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327,
2002-Ohio-2219, 767 N.E.2d 719, ¶ 18. Without any specific authorization for
the secretary of state to make this determination and the express imposition of the
duty on the state central committee to do so, the Stainbrook faction cannot
establish that the secretary owed any duty to resolve the matter when confronted
with conflicting recommendations from more than one faction of the Lucas
County Republican Party Executive Committee.



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       {¶ 20} We will not adopt the construction advocated by the Stainbrook
faction, which would allow the secretary of state to usurp the state central
committee’s authority to resolve the conflicting claims. Instead, as the Stainbrook
faction itself readily acknowledges, “[t]he Secretary of State is not concerned with
the affairs of any political party or organization and has no part as such official in
the political management or control of any party. [The secretary] is concerned
only in the functions to be performed by them through their duly constituted
committees pursuant to the provisions of the statute in relation to the election
machinery of the state.” (Emphasis added.) O’Neil, 136 Ohio St. at 530, 17 O.O.
160, 27 N.E.2d 142.          It was unclear which, if any, of the rival executive
committees was duly established at the time the secretary had to appoint a person
to the board of elections.
       {¶ 21} Moreover, when the secretary of state rejected the two competing
groups’ recommended appointees, the common pleas court had expressly held
that neither group had complied with the applicable requirements of R.C. 3517.04
and ordered the state central committee to resolve the matter. Notwithstanding
the court order and the board’s certification of each group’s list of officers and
members to the state central committee, there is no evidence that the state central
committee resolved the dispute before March 1, when the secretary of state had a
duty to appoint a qualifying elector to the board of elections for the four-year term
beginning on that date. See R.C. 3501.06.
       {¶ 22} Therefore, the secretary of state was authorized to select a different
person than those recommended by the competing groups, and she exercised this
authority by appointing Marsh to the board of elections. See R.C. 3501.07 (“If no
such recommendation is made, the secretary of state shall make the
appointment”). The conflicting recommendations, which the secretary of state
lacked authority to resolve, in effect left the secretary with no viable




                                           8
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recommendation in the absence of either a resolution of the dispute by the state
central committee or a final judicial determination.
       {¶ 23} Finally, insofar as the Stainbrook faction claims that the secretary
of state had a duty to appoint Stainbrook because it is the de facto executive
committee of the Lucas County Republican Party, it cites no pertinent authority
for this proposition. Instead, it relies primarily on those cases in which the
secretary of state was not confronted with conflicting recommendations from
competing groups. See Summit Cty. Republican Party Executive Commt., 118
Ohio St.3d 515, 2008-Ohio-2824, 890 N.E.2d 888. At a minimum, the secretary’s
interpretation of the pertinent provisions – R.C. 3501.07, 3517.05, and 3501.06 –
is a reasonable one and is thus entitled to judicial deference. See State ex rel.
Skaggs v. Brunner, 120 Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d 982, ¶ 56,
quoting Colvin, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 57 (“
‘The secretary of state’s construction is reasonably supported by the pertinent
provisions, and in accordance with well-settled precedent, the court must defer to
that reasonable interpretation’ ”).
       {¶ 24} Therefore, based on the plain language of the pertinent statutes and
the applicable precedent, the secretary of state neither abused her discretion nor
clearly disregarded applicable law by denying the Stainbrook faction’s
recommended appointment of Stainbrook and by appointing Marsh to the board
of elections.
                                      Conclusion
       {¶ 25} The Stainbrook faction has not established its entitlement to the
requested extraordinary relief in mandamus. Moreover, insofar as it still requests
relief in the form of an other writ, this relief is inappropriate, and we have
previously denied it. See State ex rel. Scioto Downs, Inc. v. Brunner, 123 Ohio
St.3d 24, 2009-Ohio-3761, 913 N.E.2d 967, ¶ 24 (denying request for an other
writ under R.C. 2503.40 when requested as a substitute for a writ of mandamus);



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Lucas Cty. Republican Party Executive Commt., 124 Ohio St.3d 1513, 2010-
Ohio-930, 923 N.E.2d 156. Therefore, we deny the writ.
                                                                     Writ denied.
       PFEIFER, ACTING C.J., and LUNDBERG STRATTON, FARMER, O’DONNELL,
FRENCH, and CUPP, JJ., concur.
       SHEILA G. FARMER, J., of the Fifth Appellate District, sitting for
O’CONNOR, J.
       JUDITH L. FRENCH, J., of the Tenth Appellate District, sitting for
LANZINGER, J.
       The late CHIEF JUSTICE THOMAS J. MOYER did not participate in the
decision in this case.
                             __________________
       Anthony J. DeGidio; and Ciolek Ltd. and Scott A. Ciolek, for relator.
       Richard Cordray, Attorney General, and Aaron D. Epstein, Richard N.
Coglianese, Damian W. Sikora, Pearl M. Chin, Erick D. Gale, and Michael J.
Schuler, Assistant Attorneys General, for respondent.
                           ______________________




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