[Cite as State ex rel. Coughlin v. Summit Cty. Bd. of Elections, 136 Ohio St.3d 371, 2013-Ohio-
3867.]




  THE STATE EX REL. COUGHLIN v. SUMMIT COUNTY BOARD OF ELECTIONS.
          [Cite as State ex rel. Coughlin v. Summit Cty. Bd. of Elections,
                        136 Ohio St.3d 371, 2013-Ohio-3867.]
Mandamus—Writ to compel board of elections to place a name on general-
        election ballot for municipal clerk of court—Candidate on nonpartisan
        ballot is not required to disaffiliate from party—Writ granted.
(No. 2013-1264—Submitted August 30, 2013—Decided September 9, 2013.)
                                      IN MANDAMUS.
                                 ____________________
        Per Curiam.
        {¶ 1} This is an expedited election action by relator, Kevin J. Coughlin,
for a writ of mandamus to compel respondent, the Summit County Board of
Elections, to place his name on the November 5, 2013 ballot as a candidate for
Stow Municipal Court clerk of courts. Because the board disregarded clearly
established law by refusing to place Coughlin’s name on the ballot, we grant the
writ.
                                            Facts
        {¶ 2} On May 6, 2013, one day before the primary, Coughlin filed a
nominating petition to run for the office of clerk of courts for the Stow Municipal
Court in the November 5, 2013 general election. The parties agree that Coughlin
is a qualified elector and satisfies the statutory requirements to run for the Stow
Municipal Court clerkship.
        {¶ 3} On July 11, 2013, an elector named Donald Nelsch filed a protest
against Coughlin’s nominating petition. The protest letter challenged Coughlin’s
ability to run as either a nonpartisan or independent candidate by setting out
Coughlin’s long history of association with the Republican Party. The letter
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alleged that Coughlin had taken no steps to disaffiliate from the Republican Party
before submitting his nominating petition.
       {¶ 4} Coughlin responded in writing and at the board’s July 15, 2013
protest hearing. Coughlin argued that he was running as a nonpartisan candidate,
not an independent candidate, and that the requirement of disaffiliation applies
only to independent candidates.
       {¶ 5} At the close of the hearing, the board voted unanimously to sustain
the protest and deny Coughlin’s petition.
       {¶ 6} Coughlin commenced this expedited election action for a writ of
mandamus on August 8, 2013, to compel the board to place his name on the
general-election nonpartisan ballot. The board has filed an answer, and the parties
have filed briefs under the accelerated schedule in S.Ct.Prac.R. 12.08(A).
       {¶ 7} This cause is now before the court for consideration of the merits.
                                      Analysis
                                Preliminary Matters
       {¶ 8} At the outset, we reject the board’s claim that this action is barred
by laches. Laches may bar relief in an election-related matter if the person
seeking relief fails to act with “ ‘requisite diligence.’ ” State ex rel. Voters First
v. Ohio Ballot Bd., 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 16,
quoting Smith v. Scioto Cty. Bd. of Elections, 123 Ohio St.3d 467, 2009-Ohio-
5866, 918 N.E.2d 131, ¶ 11.
       {¶ 9} “The elements of laches are (1) unreasonable delay or lapse of time
in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual
or constructive, of the injury or wrong, and (4) prejudice to the other party.” State
ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 145, 656
N.E.2d 1277 (1995).
       {¶ 10} The board of elections denied Coughlin’s petition on July 15,
2013. According to the board, an audiotape of the proceedings was available to




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Coughlin by July 23, 2013, and a written transcript was available by August 2,
2013. The board alleges that Coughlin did not act diligently because he did not
file suit until August 8, 2013.
       {¶ 11} The board claims that it has suffered prejudice as a result of
Coughlin’s delay because August 8, 2013, was less than 90 days from the
November 5, 2013 election, so the case fell under the expedited election
provisions of S.Ct.Prac.R. 12.08.       This court has held that the element of
prejudice is satisfied where the delay causes the case to become an expedited
election case, which restricts the time the board of elections has to prepare and
defend the case. State ex rel. Willke v. Taft, 107 Ohio St.3d 1, 2005-Ohio-5303,
836 N.E.2d 536, ¶ 18.
       {¶ 12} However, the board’s own evidence demonstrates that Coughlin
did act diligently. He made a public-records request for a transcript of the board
hearing on July 16, 2013, the day after the hearing. The board did not notify
Coughlin that the transcript was ready until August 1, 2013. He picked up the
transcript the next day, Friday, August 2, 2013, and filed his complaint four
business days later.
       {¶ 13} Although the board characterizes Coughlin’s actions as a three-
week delay, most of that delay is attributable to the board. Even in the elections
context, a delay in filing may be reasonable when a relator is diligently trying to
obtain documents from a board of elections. State ex rel. Owens v. Brunner, 125
Ohio St.3d 130, 2010-Ohio-1374, 926 N.E.2d 617, ¶ 18.
       {¶ 14} The chronology of events does not demonstrate a deliberate plan to
delay filing until less than 90 days before the election. Rather, the timing of the
complaint was dictated by the board of elections, which took more than two
weeks to provide the necessary transcript. To the extent the board now claims it
has been prejudiced, it must bear much of the responsibility for that delay.




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       {¶ 15} Laches does not bar this claim. Coughlin acted with diligence by
promptly demanding a certified transcript and filing suit five business days after
the transcript became available. This result is consistent with the “ ‘fundamental
tenet of judicial review in Ohio,’ ” which is “ ‘that courts should decide cases on
their merits.’ ” Voters First, 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d
119, ¶ 21, quoting State ex rel. Becker v. Eastlake, 93 Ohio St.3d 502, 505, 756
N.E.2d 1228 (2001).
       {¶ 16} We likewise reject the board’s assertion that Coughlin’s claim is
barred by unclean hands. The doctrine of unclean hands requires a showing that
the party seeking relief engaged in reprehensible conduct with respect to the
subject matter of the action. Goldberger v. Bexley Properties, 5 Ohio St.3d 82,
84-85, 448 N.E.2d 1380 (1983). The board argues that Coughlin should not be
able to take advantage of legislation he drafted while serving in the General
Assembly. We reject the board’s argument that it is reprehensible conduct for
Coughlin to rely on a duly enacted statute in later litigation.
                                     Mandamus
       {¶ 17} For a writ of mandamus to issue, Coughlin must establish a clear
legal right to have his name placed on the November 5, 2013 ballot, a
corresponding clear legal duty on the part of the board of elections and its
members to place his name on the ballot, and the lack of an adequate remedy at
law. State ex rel. Allen v. Warren Cty. Bd. of Elections, 115 Ohio St.3d 186,
2007-Ohio-4752, 874 N.E.2d 507, ¶ 8. Coughlin must prove these requirements
by clear and convincing evidence. State ex rel. Orange Twp. Bd. of Trustees v.
Delaware Cty. Bd. of Elections, 135 Ohio St.3d 162, 2013-Ohio-36, 985 N.E.2d
441, ¶ 14.




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                                    January Term, 2013




        {¶ 18} Because of the proximity of the November 5 election, and
specifically the September 21, 2013 deadline for finalizing UOCAVA ballots,1
Coughlin has established that he lacks a remedy in the ordinary course of the law.
State ex rel. Ohio Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-
1845, 928 N.E.2d 410, ¶ 27.
                        Clear Legal Right and Clear Legal Duty
        {¶ 19} Coughlin claims that the board disregarded applicable law by
refusing to place his name on the November 5, 2013 nonpartisan ballot for
municipal court clerk.
        {¶ 20} R.C. 1901.31 sets forth the duties of a municipal court clerk and
the manner by which candidates are nominated and elected. In most jurisdictions,
including Stow, candidates for the office of clerk of courts must be nominated and
elected in the same manner as provided in R.C. 1901.07 for the nomination and
election of municipal court judges. R.C. 1901.31(A)(1)(a).
        {¶ 21} Candidates for municipal court judge must appear on a nonpartisan
ballot in the general election. R.C. 1901.07(A). Thus, by operation of R.C.
1901.31(A)(1)(a), the names of candidates for municipal clerk of courts must also
appear on a nonpartisan ballot in a general election.
        {¶ 22} Candidates for municipal court judge or clerk of courts may be
nominated in one of two ways: either by nominating petition or by primary
election.    R.C. 1901.07(B).         Each method has a different filing deadline.
Candidates seeking nomination through primary election must file declarations of
candidacy and petitions no later than the 90th day before the primary election. Id.
Candidates seeking nomination by way of nominating petitions must file their


1. Pursuant to R.C. 3511.04(B), the board of elections must begin providing absent-voter ballots
upon request to certain uniformed service members, their families, and other citizens under the
Uniformed and Overseas Citizens Absentee Voters Act (“UOCAVA”) no later than 45 days before
the general election.




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nominating petitions no later than the day before the primary. Id. Coughlin
employed the latter deadline.
        {¶ 23} The Nelsch protest letter argued that Coughlin could not in good
faith hold himself out as an independent or nonpartisan because he had not ceased
conducting himself as a Republican. Nelsch alleged that Coughlin was merely
trying to avoid running in the Republican primary.          The board of elections
sustained the protest and denied Coughlin’s petitions.
        {¶ 24} We begin by discussing the difference between nonpartisan and
independent. These two terms are not synonymous.
        {¶ 25} R.C. 3505.04 provides that the names of nonpartisan candidates for
election to certain offices, including judicial office, shall be printed on a portion
of the ballot designated as the “nonpartisan ballot.” Political-party designations
are not permitted on the nonpartisan ballot. R.C. 3505.04, eighth paragraph. A
“nonpartisan” candidate is simply any candidate whose name is required by R.C.
3505.04 to be listed on the nonpartisan ballot. R.C. 3501.01(J).
        {¶ 26} The Revised Code defines an “independent” candidate as “any
candidate who claims not to be affiliated with a political party, and whose name
has been certified on the office-type ballot at a general or special election through
the filing of a statement of candidacy and nominating petition, as prescribed in
section 3513.257 of the Revised Code.”          R.C. 3501.01(I).     If an affiliated
candidate wishes to run as an independent, the candidate must disaffiliate in good
faith from his or her political party. Morrison v. Colley, 467 F.3d 503 (6th
Cir.2006).
        {¶ 27} Unlike independent candidates, candidates for nonpartisan office
are not required to disaffiliate from political parties. State ex rel. Allen v. Warren
Cty. Bd. of Elections, 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507,
¶ 18.




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         {¶ 28} In simple terms, “nonpartisan” describes an office, a ballot, or a
race, nonaffiliation (i.e., being an independent) is a characteristic of candidates,
and party affiliation is a characteristic of candidates and voters.2
         {¶ 29} R.C. 3501.01(I) requires independent candidates to meet the
requirements for nominating petitions in R.C. 3513.257. R.C. 3513.257 contains
requirements such as the number of valid signatures necessary on a qualifying
petition and the location where petitions are to be filed.
         {¶ 30} Petitions submitted by candidates for municipal court judge must
also meet the requirements of R.C. 3513.257. R.C. 1901.07(B). And therefore,
by operation of R.C. 1901.31(A)(1)(a), candidates for clerk of court must also
meet these requirements.
         {¶ 31} Thus, the board argues, since R.C. 3513.257 governs the petitions
of independent candidates, who must disaffiliate in order to run, and since
candidates for clerk must also satisfy R.C. 3513.257, it follows that clerk
candidates must be disaffiliated independents.
         {¶ 32} However, R.C. 3513.257 does not create the disaffiliation
requirement. The obligation of independents to disaffiliate exists as part of the
statutory definition of an independent in R.C. 3501.01(I). There is no provision in
the Revised Code extending that disaffiliation requirement to candidates for
nonpartisan office.




2. A voter cannot register as an independent, except in the negative sense of not voting in partisan
primaries or signing partisan nominating petitions. The Revised Code contains no provision for
declaring party affiliation when one registers to vote, State ex rel. Young v. Gasser, 21 Ohio St.2d
253, 255, 257 N.E.2d 389 (1970), and the registration forms do not contain a space for that
information. Rather, party affiliation or membership is “that which [the voter] desires it to be
from time to time.” Id. at 257. Essentially, being “registered” as a Republican or Democrat
means nothing more than voting in that party’s primary, because the local boards of elections keep
records of that information.




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                              SUPREME COURT OF OHIO




               Although under R.C. 1901.07(B) nonpartisan candidates
       for municipal court judge must have their petitions “conform to the
       requirements provided for those petitions of candidacy contained
       in section 3513.257 of the Revised Code,” which governs petition
       requirements for independent candidates, nothing in R.C. 3513.257
       requires that nonpartisan candidates be unaffiliated or disaffiliated
       from a political party.


Allen, 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507, ¶ 18.
       {¶ 33} As this court recognized in Allen, the fact that a candidate must
follow the same petition procedures as an independent candidate does not mean
that the candidate is an independent.
       {¶ 34} Therefore, based on Allen, the board of elections erred when it
sustained the protest against Coughlin’s declaration of candidacy.
       {¶ 35} The     board      disputes       Coughlin’s   contention   that   R.C.
1901.31(A)(1)(a) makes the procedures for nominating and electing clerks of
court the same in all respects as those for nominating and electing municipal
judges. However, the board does not explain which procedures in R.C. 1901.07
are applicable to clerk candidates, which aspects are not applicable, and why.
And specifically, the board does not explain why the two methods of nomination,
and their respective deadlines, are not part of the “manner” of nominating
municipal judges.
       {¶ 36} The Summit County Board of Elections disregarded clearly
established law when it concluded that Coughlin had to disaffiliate or else seek
nomination through a partisan primary and that therefore his nominating petition
was untimely. For this reason, Coughlin has a clear legal right to have his name
on the ballot, the board has a clear legal duty to place his name on the ballot, and,
given the proximity of the election, Coughlin has no adequate remedy at law.




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                               January Term, 2013




                                    Conclusion
       {¶ 37} Based on the foregoing, Coughlin has established his entitlement to
the requested extraordinary relief. We grant a writ of mandamus to compel the
Summit County Board of Elections to place his name on the November 5, 2013
nonpartisan ballot as a candidate for Stow Municipal Court Clerk of Courts.
                                                                    Writ granted.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                             ____________________
       Donald S. Varian Jr., for relator.
       Sherry Bevan Walsh, Summit County Prosecuting Attorney, John F.
Galonski, Deputy Chief, Civil Division, and Joseph M. Fantozzi, Chief Assistant
Prosecuting Attorney, for respondent.
                          ________________________




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