[Cite as State ex rel. Weller v. Tuscarawas Cty. Bd. of Elections,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, ex rel. CLAYTON JUDGES: WELLER Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Relator Hon. Earle E. Wise, Jr., J.

-vs- Case No. 2019 AP 09 0037

TUSCARAWAS COUNTY BOARD of ELECTIONS OPINION

Respondent

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Denied

DATE OF JUDGMENT ENTRY: September 30, 2019

APPEARANCES:

For Relator For Respondent

TONYA J. RODGERS ROBERT R. STEPHENSON II BAKER, DUBLIKAR , BECK ASSISTANT PROSECUTOR WILEY & MATHEWS 125 East High Avenue 400 South Main Street New Philadelphia, Ohio 44663 North Canton, Ohio 44720 Tuscarawas County, Case No. 2019 AP 09 0037 2

Wise, John, J.

{¶1} Relator, Clayton Weller, filed a Complaint for Writ of Mandamus against

Respondent, Tuscarawas County Board of Elections (“Board of Elections”), on

September 9, 2019. The issue presented in Mr. Weller’s writ of mandamus is whether his

name should be placed on the November 5, 2019 ballot as a candidate for the office of

mayor for the Village of Sugarcreek.

{¶2} Mr. Weller circulated part petitions containing a “statement of candidacy”

and “nominating petition.” On June 21, 2019, Mr. Weller timely filed four part petitions with

the Board of Elections. The Board of Elections determined Mr. Weller’s part petitions

contained a total of 72 valid signatures. However, the Board of Elections met on August

19, 2019, and rejected certification of Mr. Weller’s petitions for placement on the general

election ballot because the “nominating petition” section of the Petition Form No. 3-O was

not completed on all four part petitions. An example of the four incomplete part petitions’

“nominating petition” section is below:

{¶3} The Board of Elections notified Mr. Weller of its decision by letter dated

August 22, 2019. Mr. Weller thereafter filed this original action and maintains that under

R.C. 3513.261 he only needed to complete the “statement of candidacy” section of the Tuscarawas County, Case No. 2019 AP 09 0037 3

petition before circulation for signature and that he satisfied this requirement. Mr. Weller

further contends that R.C. 3513.261 does not expressly require completion of the

“nominating petition” section of the form for compliance and certification and that

completion of the “nominating petition” is merely duplicative of the information contained

in the “statement of candidacy.” Thus, Mr. Weller asserts that by completing the

“statement of candidacy,” he substantially complied with R.C. 3513.261. Finally, Mr.

Weller makes a public policy argument that Ohio law governing access to the ballot is to

be construed liberally in favor of granting access.

{¶4} To prevail on his writ, Mr. Weller must prove that he has a clear legal right

to have his name placed on the November 5, 2019 ballot, that the Board of Elections is

under a clear legal duty to provide the requested relief, and that Mr. Weller has no

adequate remedy in the ordinary course of the law. State ex rel. Linnabary v. Husted,

,

,

, ¶13. We find Mr. Weller has established

that he has no adequate remedy in the ordinary course of the law due to the nearness of

the general election. See State ex rel. Greene v. Montgomery Cty. Bd. of Elections,

,

,

.

{¶5} “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 of applicable legal provisions.” Whitman

v. Hamilton Cty. Bd. of Elections,

,

,

. Here, there is no evidence or argument regarding fraud or corruption. Instead, the

dispositive issues are whether the Board of Elections abused its discretion or clearly

disregarded applicable law by rejecting Mr. Weller’s part petitions. Tuscarawas County, Case No. 2019 AP 09 0037 4

{¶6} At the outset, Mr. Weller contends the standard for compliance under R.C.

3513.261 is substantial compliance and not strict compliance. In State ex rel. Husted v.

Brunner,

,

,

, the Ohio Supreme

court held, “[t]he general rule is that, unless there is language allowing substantial

compliance, election statutes are mandatory and must be strictly complied with.” Under

R.C. 3513.261, when the General Assembly references the concept of substantial

compliance, it does so with regard to the issue of “form.” For example, the first sentence

of the statute provides: “A nominating petition may consist of one or more separate

petition papers, each of which shall be substantially in the form prescribed in this section.”

(Emphasis added.) In Simonetti v. Summit Cty. Bd. of Elections,

, 2017-

Ohio-8115,

, the Court explained that R.C. 3513.261 “requires only

substantial compliance with the prescribed ‘form’ of the nominating petition, but the

statute contains no language regarding substantial compliance as to other matters.”

.

{¶7} The Court further explained in Simonetti that “[w]hen considering questions

of substantial compliance with an election statute, we examine whether the requirement

at issue ‘serves a public interest and a public purpose.’ ” Id. at ¶ 27. In Simonetti, the

Court concluded the requirement that a candidate sign the statement of candidacy on the

petition paper before circulating the nominating petition advances two public purposes.

Id. First, it guarantees adequate notice of the candidate’s identity to electors and second,

it ensures the petition will not be used for a candidacy other than the one intended by the

signers. Id. Importantly, the Court concluded “[t]hese interests do not relate merely to the Tuscarawas County, Case No. 2019 AP 09 0037 5

‘form’ of a nominating petition but go to the very substance.” The Court concluded

Simonetti’s substantial-compliance argument was unavailing. Id.

{¶8} Here, Mr. Weller contends strict compliance with submission of a completed

“nominating petition” was not required because R.C. 3513.261 does not expressly require

completion of the “nominating petition” section of the form and the information contained

in the “nominating petition” section of the petition is merely duplicative of that contained

in the “statement of candidacy” section. Thus, Mr. Weller maintains nothing would be

accomplished by requiring him to supply the same information in the “nominating petition”

section of the petition.

{¶9} In support of his argument, Mr. Weller cites State ex rel. Yacobozzi v. Lorain

Cty. Bd. of Elections,

,

(9th Dist. 1985), where the

court of appeals granted a writ of mandamus for placement of relator’s name on the ballot.

The court found the absence of the day of the month on which the declaration of

candidacy was completed did not mislead anyone and because the statement of

candidacy was completely filled out prior to circulation among the electors, the electors

were properly informed.

. Yacobozzi is distinguishable from the facts here

because in Yacobozzi, relator merely failed to complete a date and not an entire section

of the petition.

{¶10} Further, under Simonetti and the substantial compliance analysis, we must

determine whether the completion of the “nominating petition” section of the petition

serves a public interest and public purpose. We find that it does. This section of the

petition indicates to the signators of the petition the name of the candidate they are

nominating, the office the candidate is running for, and whether the term sought by the Tuscarawas County, Case No. 2019 AP 09 0037 6

candidate is a full or unexpired term. Essentially, Mr. Weller’s failure to complete the

“nominating petition” section of the petition resulted in the signators nominating nobody

as a candidate.

{¶11} Also, the fact that Mr. Weller completed the “statement of candidacy”

section of the petition does not remedy the fact that he did not complete the “nominating

petition” section. Although the “nominating petition” section of the petition contains

information that duplicates the information provided in the “statement of candidacy,” the

purpose of the two sections are not duplicative. They serve two separate purposes. The

“statement of candidacy” is the candidate’s declaration that he or she intends to run for a

particular office and is an elector qualified to vote for the office he or she seeks. The

“nominating petition” section of the petition actually identifies the candidate being

nominated by the signators to the petition, the office being sought by the candidate, and

the term of the office.

{¶12} Thus, Mr. Weller’s failure to provide any information in the “nominating

petition” section of the petition does not relate merely to the “form” of the nominating

petition, but goes to its very substance. Further, the “nominating petition” section of the

petition serves several public interests and purposes. It identifies the person who is being

nominated by the signators and the office being sought by the candidate.

{¶13} In his Reply, Mr. Weller references State ex rel. Phillips v. Lorain Cty. Bd.

of Elections,

,

(1991), which left blank the “nominating

committee” section of a petition.

Relator requested that the nominating petitions be

rejected.

The Ohio Supreme Court disagreed and denied the writ because the current

version of R.C. 3513.261 did not expressly require the appointment of a nominating Tuscarawas County, Case No. 2019 AP 09 0037 7

committee, with this change in the law occurring in 1930 when the statute was repealed.

. By analogy, Mr. Weller maintains the same analysis applies here to the

“nominating petition” section of the form.

{¶14} We disagree. R.C. 3513.261 specifically requires that a nominating petition

substantially comply with the form set forth in the statute. The example in the statute

contains a “nominating petition” section. Because the “nominating petition” section of the

petition must be included to substantially comply with the required form, we cannot

assume that failure to complete the required information substantially complies with the

mandate of the statute. Therefore, Phillips is not persuasive. Further, Mr. Weller cited no

other case law that found a petition to be valid where the candidate failed to complete any

portion of the “nominating petition” section of the petition.

{¶15} For these reasons, we find the Tuscarawas County Board of Elections did

not abuse its discretion or act in clear disregard of applicable legal provisions when it

concluded Mr. Weller’s Nominating Petitions were not completed as required by law.

{¶16} Mr. Weller’s writ of mandamus is denied.

By: Wise, John, J. Gwin, P. J., and Wise, Earle, J., concur.

.

JWW/d 0927