In Re Protest of Brooks

801 N.E.2d 514, 155 Ohio App. 3d 384, 2003 Ohio 6525
Ohio Court of Appeals·Decided December 5, 2003·No. No. 03-CA-11.·Published·Cited by 3 cases

Opinion

Grady, Judge.

{¶ 1} This is an appeal from a judgment and order that the court of common pleas entered in a review mandated by R.C. 3519.16 of a report of the Miami County Board of Elections to the Secretary of State made pursuant to R.C. 3519.15.

*386 {¶ 2} The board had denied a protest alleging that certain part-petitions supporting a state-wide electoral initiative were insufficient for several reasons. The common pleas court affirmed the board’s decision denying the protest in all respects, save one.

{¶ 3} The court found that the part-petitions were not properly verified by the person who had circulated them because they were “false.” R.C. 3519.06(D). The falsity concerned the representation of the address of the person from whom the circulator expected to receive payment. Because the part-petitions were not properly verified by their circulators, the court ordered the signatures of electors who had signed them not included in the tabulation of signatures of qualified voters supporting the initiative that the board would report to the Secretary of State.

{¶ 4} The informational requirement at issue appears in R.C. 3519.05. It concerns payments made to persons who solicit signatures of electors. The form of petition that R.C. 3519.05 prescribes contains the following disclosure provision:

{¶ 5} “In consideration for services in soliciting signatures to this petition, the solicitor has received or expects to receive_from __(Whose address is)__Before any elector signs the part-petition, the solicitor shall completely fill in the above blanks if the solicitor has received or will receive any consideration, and if the solicitor has not received and will not receive any consideration, the solicitor shall insert ‘nothing.’ ”

{¶ 6} The parties stipulated that all the part-petitions that were the subject of the protest before the board, except for two, indicated that the solicitor had or would receive compensation from “John Mitchell,” whose address was shown to be “2301 E. Sharon Rd., Cincinnati, Ohio 45241.” It was not disputed that John Mitchell was at the location when the part-petitions were circulated by qualified voters. Neither was it disputed that the location indicated is a Red Roof Inn motel where Mitchell was temporarily lodged and that he is not a resident of Ohio but a resident of California. The two part-petitions that contained different information indicated that the solicitor, H. Clemons, was paying himself and that his address was Cincinnati and/or Miami, Florida.

{¶ 7} The trial court concluded that the address given for Mitchell, a motel in Cincinnati, “was intentionally used on the petitions to mislead an elector into believing that the person paying the solicitor was a resident of Ohio,” and that, as a result, the part-petitions were false in that respect. R.C. 3519.06(D) provides that no petition is properly verified if a statement it contains “is false in any respect.” Therefore, the court held that the board of elections had abused its discretion when it rejected the protest on a finding that the part-petitions were properly verified.

*387 {¶ 8} Appellants are members of the committee in whose name the initiative petition was circulated. They present five assignments of error on appeal.

FIRST ASSIGNMENT OF ERROR

{¶ 9} “The court below lacked subject matter jurisdiction to invalidate part-petitions on a basis not set forth in the initial protest.”

{¶ 10} The jurisdiction of the courts of common pleas is determined by statute. Section 4(B), Article IV, Ohio Constitution. R.C. 3519.16 states, “If the circulator of any part-petition, the committee interested therein, or any elector files with the board of elections a protest against the board’s findings made pursuant to section 3519.15 of the Revised Code, then the board shall proceed to establish the sufficiency or insufficiency of the signatures and of the verification thereof in an action before the court of common pleas in the county.” R.C. 3519.15 governs the board’s review of petitions and its findings of their sufficiency-

{¶ 11} R.C. 3519.16 is plainly jurisdictional. Appellants argue that the common pleas court acted outside the jurisdiction conferred on it by that section because the sufficiency or accuracy of the information concerning paid circulators on which the court rejected the part-petitions is not a matter comprehended by “the sufficiency of the signatures and the verification thereof,” concerning which R.C. 3519.16 requires judicial review of a board’s report after a protest. Appellants also argue that because the board of elections made no findings concerning the circulator’s statement as it appears in the part-petitions, that matter was not properly before the court for review.

{¶ 12} We do not agree. R.C. 3519.16 authorizes and directs the court of common pleas to adjudicate an action brought by a board of elections upon the board’s “findings made pursuant to section 3519.15 of the Revised Code.” When a protest is filed, that section requires the board to “determine any repetition or duplication of signatures, the number of illegal signatures, and the omission of any necessary details required by law.” The board must then make a report to the Secretary of State of its findings concerning the sufficiency of the signatures on the part-petitions, “indicating whether or not each part-petition is properly verified.” Id.

{¶ 13} The disclosure of the name and address of a payor of any solicitor mandated by R.C 3519.05 is one of the “necessary details” required by law. The board is required by R.C. 3519.15 to report its omission, which comprehends not only the failure to disclose any information at all but also failure to disclose information which is complete and correct. The board’s report in this instance *388 amounts to a “finding” in that regard, for which R.C. 3519.16 requires full judicial review.

{¶ 14} The first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

{¶ 15} “The address of the payor provided in the circulators’ compensation statements complies with R.C. 3519.05.”

{¶ 16} The common pleas court found that the address for John Mitchell stated on the face of the part-petitions was false, and per R.C. 3519.06(D), held that the part-petitions at issue were therefore not “verified” and that the signatures thereon were therefore insufficient for purposes of the board’s report to the Secretary of State. The court acted within its discretion conferred on it by R. C. 3519.16 when it made that finding. Because the court’s judgment was founded on its determination of an issue of law, the meaning of R.C. 3519.05 and its disclosure requirements, our review of the error alleged is de novo. For that purpose, we must accept the court’s findings of fact as true.

{¶ 17} Use by organized and well-financed interest groups of paid solicitors to circulate petitions in support of the initiative elections has been the subject of concern and disapproval. See Broder, Democracy Derailed: Initiative Campaigns and the Power of Money (2000).

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In Re Protest of Brooks, 801 N.E.2d 514, 155 Ohio App. 3d 384, 2003 Ohio 6525 (Ohio Ct. App. 2003).

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