[Cite as State ex rel. Livingston v. Miami Cty. Bd. of Elections, 196 Ohio App.3d 263, 2011-Ohio-6126.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DIVISION
                                    MIAMI COUNTY


STATE EX REL.                                      :
LIVINGSTON ET AL.,                                 :
                                                   :        Appellate Case No. 2011-CA-12
                                                   :
v.                                                 :
                                                   :
MIAMI COUNTY BOARD OF                              :
ELECTIONS.                                         :



                        DECISION AND FINAL JUDGMENT ENTRY
                               September   8th , 2011



      Donald J. McTigue, J. Corey Colombo, and Mark A. McGinnis;
and Bryan Pacheco, for relators.

       Gary A. Nasal, Miami County Prosecuting Attorney, and Mark W. Altier, Chief
Civil Assistant Prosecuting Attorney, for respondents.


        Per Curiam.

        {¶ 1} This matter is before the court in an original action commenced on

petitions for writs of mandamus and prohibition filed by relators, James R. Livingston

and Robert M. Harrelson. The respondent is the Miami County Board of Elections.

        {¶ 2} The election of a candidate for the office of law director for the city of

Troy, Ohio, will be submitted to the voters at the general election held on November 8,

2011. Petitioners Livingston and Harrelson are both residents of the city of Troy and

are duly qualified electors of Miami County. In April 2011, prior to the filing deadline,
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both relators filed with the board petitions of candidacy for the office of law director of

Troy. The form of the petitions was as prescribed by R.C. 3513.261.

       {¶ 3} On June 7, 2011, the board held a public hearing to consider the

candidacies of nine persons who had filed petitions in the form prescribed by R.C.

3513.257. Each of those persons, including Livingston and Harrelson, had requested

that his name appear on the ballot as a nonparty or “independent” candidate. R.C.

3501.01(I) provides:

       {¶ 4} “ ‘Independent candidate’ means 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.”

       {¶ 5} The board heard testimony and took other evidence relative to the claims

of each of the nine candidates that the candidate is not affiliated with a political party.

Following that, the board adjourned its public hearing and retired to consider what it

had heard. The board thereafter resumed its public hearing, at which the chairman of

the board made the following pronouncement:

       {¶ 6} “Thank you for your patience. We are now back on the record. We

considered, and it is our duty to consider, the credibility, motive, voting record. We

considered the evidence, the documents and we’ve considered the briefs. Present in

our deliberations were the four board members and our counsel, Mr. Nasal and Mr.

Altier. We considered it all and so we view it our duty to apply the law and the facts as

we understand them to be.
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       {¶ 7} “I would also say for the record any recitation of facts or law by me or

other board members is not intended to be any kind of finding of fact or conclusion of

law, but rather our vote as announced was made in consideration of all the facts, all the

evidence, everything in the record and the written material and briefs that were

presented.

       {¶ 8} “So with that we’re going to now take a vote again on the record. And,

Ms. Calendine, if you’ll record the vote in the order in which we – well, let me explain as

well our duty here is to make a determination about eligibility to be an independent

candidate. So a yes vote means the petition is accepted. A no vote is the petition is

not accepted.”

       {¶ 9} The board voted to accept the petitions of seven of the nine independent

candidates, including two who had filed petitions as candidates for the office of law

director of Troy. The board voted to invalidate the petitions filed by relators Livingston

and Harrelson.

       {¶ 10} Relators filed joint petitions for writs of mandamus and prohibition on June

15, 2011, challenging the board’s invalidation of their petitions. They filed an amended

petition on June 21, 2011. Respondent filed an answer on June 28, 2011.

       {¶ 11} “In extraordinary actions challenging the decisions of the Secretary of

State and boards of elections, the standard is whether they engaged in fraud,

corruption, or abuse of discretion, or acted in clear disregard on applicable legal

provisions.”     Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216,

2002-Ohio-5923, ¶ 11. Relators make no claim of fraud or corruption. Consequently,
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the dispositive issue is whether the board abused its discretion in invalidating relators’

petitions.

       {¶ 12} R.C. 3501.38 governs petitions filed by candidates for election.          R.C.

3501.39(A) establishes standards for unacceptable petitions. That section provides:

       {¶ 13} “The secretary of state or a board of elections shall accept any petition

described in section 3501.38 of the Revised Code unless one of the following occurs:

       {¶ 14} “(1) A written protest against the petition or candidacy, naming specific

objections, is filed, a hearing is held, and a determination is made by the election

officials with whom the protest is filed that the petition is invalid, in accordance with any

section of the Revised Code providing a protest procedure.

       {¶ 15} “(2) A written protest against the petition or candidacy, naming specific

objections, is filed, a hearing is held, and a determination is made by the election

officials with whom the protest is filed that the petition violates any requirement

established by law.

       {¶ 16} “(3) The candidate’s candidacy or the petition violates the requirements of

this chapter, Chapter 3513. of the Revised Code, or any other requirements established

by law.”

       {¶ 17} In State ex rel. Stefanick v. Marietta Mun. Court, 21 Ohio St.2d. 102, 104

(1970), the Supreme Court held:

       {¶ 18} “A writ of prohibition will be allowed only in the absence of a plain and

adequate remedy in the ordinary course of the law and where the action complained of

represents either a clear usurpation of judicial power or the assumption of jurisdiction
                                                                                    5

where none exists.

      {¶ 19} “Prohibition is a preventive writ rather than a corrective remedy and is

designed to prevent a tribunal from proceeding in a matter which it is not authorized to

hear and determine.     It cannot be used to review the regularity of an act already

performed.” (Citations omitted.)

      {¶ 20} R.C. 3105.39(A) confers jurisdiction on the board to invalidate relators’

petitions for any of the causes that section identifies. Further, the relief relators now

seek to require the board to instead accept their petitions is a corrective remedy rather

than preventive. Therefore, prohibition cannot lie.

      {¶ 21} R.C. 2731.01 defines mandamus as “a writ, issued in the name of the

state to an inferior tribunal, a corporation, board, or person, commanding the

performance of an act [that] the law specially enjoins as a duty resulting from an office,

trust, or station.” Ordinarily, mandamus is available only against a public officer or

agency to require performance of an official act that the officer or agency has a clear

legal duty to perform and has failed to perform and when the relator has no adequate

legal remedy by way of appeal. The relator must demonstrate that he or she has a

clear legal right to have the requested act performed. The proximity of an election

establishes the lack of an adequate remedy in the ordinary course of law. State ex rel.

Greene v. Montgomery Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, ¶

10.

      {¶ 22} The board argues that “[a] mere abuse of discretion does not authorize

the use of the writ of mandamus[.] * * * [O]rdinarily relief will only be granted upon a
                                                                                    6

demonstration of a ‘gross abuse of discretion.’ ” The board relies on State ex rel.

Libbey-Owens Ford Glass Co. v. Indus. Comm., 162 Ohio St. 302 (1954). The board

relates that higher standard to the presumption that officers and boards “will be

presumed to have properly performed their duties and not to have acted illegally but

regularly and in a lawful manner.” State ex rel. Boccuzzi v. Cuyahoga Cty. Bd. of

Commrs., 112 Ohio St.3d 438, 2007-Ohio-323, ¶ 16.

      {¶ 23} Frankly, we have difficulty affording the board the presumption of

regularity that the “gross abuse of discretion” standard requires. The board made no

findings to support its decision to invalidate the relators’ petitions. R.C. 3501.09(A)(1)

and (2), which apply to written protests, expressly require “a determination by the

election officials” before a board of elections may decline to accept petitions. The

catch-all provision in R.C. 3501.09(A)(3) expresses no like requirements, but a

determination is surely necessary to support a finding that a petition violates the

requirements on R.C. Chapter 3501 or 3513 “or any other requirements established by

law” before a petition is invalidated for those reasons. The board made none.

      {¶ 24} Nevertheless, the parties agree that the board necessarily concluded that

relators’ claims that they are each an “independent candidate,” which is defined by R.C.

3501.01(I) to mean “any candidate who claims not to be affiliated with a political party,”

is untrue. Further, the board contends that, in so doing, it relied on the Ohio Secretary

of State Advisory No. 2007-05, which establishes guidelines for boards of elections

passing on that question.

      {¶ 25} The secretary of state is the chief election officer of the state of Ohio and
                                                                                    7

has authority over county board of elections, R.C. 3501.05, including the authority to

issue directives to boards. R.C. 3501.05(B), (M). Courts recognize the authority of

the secretary of state in election matters and have a duty to defer to the secretary’s

interpretations of election law if it is subject to two different, but equally reasonable,

interpretations.   State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581 (1995).

Boards of elections likewise have a duty to defer to the secretary in interpreting and

implementing state election law. Lorenzi v. Mahoning Cty. Bd. of Elections, Mahoning

App. No. 07MA 127, 2007-Ohio-5879.

       {¶ 26} Secretary of State’s Advisory No. 2007-05 interprets and applies the

holding of the United States Court of Appeals for the Sixth Circuit in Morrison v. Colley,

467 F.3d 503 (6th Cir.2006).       In Morrison, after filing a petition claiming to be an

independent candidate, the candidate voted in a partisan primary election. Morrison

approved a board’s refusal to accept the candidate’s petition for that reason. Applying

Morrison, the secretary advised:

       {¶ 27} “If an independent candidate votes in a party primary election after filing

as an independent, the candidate is not actually unaffiliated, and the candidate’s claim

of independence was either not made in good faith or is no longer current; and

       {¶ 28} “If an independent candidate was on a political party’s central or executive

committee at the time he or she filed as an independent candidate, or becomes such a

committee member at any time during his or her independent candidacy, the candidate

is not actually unaffiliated, and the candidate’s claim of independence was either not

made in good faith or is no longer current.”
                                                                                     8

       {¶ 29} The secretary’s advisory is not confined to those particular facts, however.

 The secretary advised boards of elections that “as indicated by the Morrison court, * * *

 R.C. 3513.257 requires that an independent candidate actually be unaffiliated, or

disaffiliated from any political party; and the required claim of unaffiliation by an

independent candidate must be made in good faith.” The secretary further advised:

       {¶ 30} “Additionally, as indicated by the Morrison court, indications of party

affiliation such as past voting history, information submitted on required election-related

filings, political advertisements, participation as a political party officer or member, or

holding a public office for which the office holder was nominated through a political

party’s primary election and elected on a partisan ticket may serve as evidence, though

not necessarily conclusive evidence, of party affiliation to support a protest against an

independent candidate’s candidacy.         For example, voting history, alone, is an

insufficient basis on which to disqualify an independent candidate because Ohioans are

freely entitled to change or revoke their party affiliation at any time. However, voting

history, together with other facts tending to indicate party affiliation, may be sufficient

grounds to disqualify an independent.”

       {¶ 31} The board heard evidence that in past years, both relators had voted in

Republican primary elections. Both had also signed petitions in support of Republican

candidates, and each had signed such a petition in January 2011, only several months

before he filed his petition as an independent candidate. Relator Livingston won office

as a Republican candidate for Miami County Prosecuting Attorney for a four-year term

in the early 1980's.    Livingston was a member of the Miami County Republican
                                                                                   9

executive committee from that time until February 16, 2011, when he resigned that

position. Since filing their petitions as independent candidates in April 2011, neither

relator has engaged in any conduct inconsistent with his claim that he is unaffiliated

with a political party.

       {¶ 32} In Morrison and Lorenzi, and also in State ex rel. Wilkerson v. Trumbull

County Bd. of Elections, Trumbull App. No. 2007-T-0081, 2007-Ohio-4762, the boards

of elections’ determinations to not accept an independent candidate’s petitions was

based, in part, on conduct inconsistent with his claim that occurred thereafter, when the

candidate voted in a partisan primary election. At oral argument, the respondent board

conceded that its research revealed no case in which an independent candidate was

disqualified solely on the basis of prefiling conduct or activity.

       {¶ 33} The election laws should be liberally construed in favor of candidates for

public office. State ex rel. Allen v. Warren Cty. Bd. of Elections, 115 Ohio St.3d 186,

2007-Ohio-4752, ¶ 20. “[A] candidate can renounce his prior affiliation with a party by

declaring in his ‘independent’ petition that he has now severed that association.”

Wilkerson, 2007-Ohio-4762, ¶ 24. A board of elections may, nevertheless, reject the

candidate’s petitions pursuant to R.C. 3501.39 on a finding that the candidate’s claim to

have disaffiliated with a political party was not made in good faith because the

candidate is not actually unaffiliated. A lack of good faith is shown by subsequent

conduct that is materially inconsistent with the prior claim of unaffiliation. A lack of

good faith may also be shown by evidence of prior conduct that portrays a subsequent

claim of disaffiliation to be a sham or deceitful.
                                                                                     10

       {¶ 34} Consistent with the liberal construction of the laws in favor of candidates,

a finding that the candidate’s claim was not made in good faith must be supported by

clear and convincing evidence. “Clear and convincing evidence is that measure or

degree of proof which will produce in the mind of the trier of facts a firm belief or

conviction of the allegations sought to be established. It is intermediate, being more

than a mere preponderance, but not to the extent of such certainty as is required

beyond a reasonable doubt as in criminal cases.            It does not mean clear and

unequivocal.” (Emphasis sic.) Cross v. Ledford (1954), 161 Ohio St. 469, 477.

       {¶ 35} The record supports a finding that both relators may have acted on a

calculation that they would have a better chance of winning as independent candidates.

 However, that fails to rise to the level of clear and convincing evidence that their claims

of disaffiliation from the Republican party were not made in good faith because the

claim is a sham or deceitful—that is, that either actually remains affiliated with the

Republican party.     Such proof is necessary to find an impropriety in their claims

sufficient to permit the board to invalidate their petitions pursuant to R.C. 3501.39(A) on

a finding of a lack of good faith.

       {¶ 36} R.C. 3501.39(A) provides that a board of elections “shall accept any

petition” absent the findings in paragraphs (1) through (3) of that section. To the extent

that it made such findings with respect to the petitions that the relators filed, the board

abused its discretion. The board had a clear legal duty to accept their petitions and the

relators had a clear legal right to have their petitions accepted by the board. The

relators are therefore entitled to the writ they seek.
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       {¶ 37} Respondent, the Miami County Board of Elections, shall promptly meet

and accept relators’ petitions of candidacy for the office of law director of Troy, and

thereafter take all necessary steps to insure that the relators’ candidacies for that

position are submitted to the voters of the city of Troy at the general election to be held

on November 8, 2011.


                                                                              So ordered.


       GRADY, P.J., and FAIN and DONOVAN, JJ., concur.
