Pizzulo v. Flask

2024 Ohio 778, 237 N.E.3d 842

• Court: Ohio Court of Appeals
• Decided: March 4, 2024
• Docket: 2023-T-0104
• Status: Published

Opinion

[Cite as Pizzulo v. Flask, 2024-Ohio-778.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY

JORYAN EVAN PIZZULO, CASE NO. 2023-T-0104

Relator, Original Action for Mandamus - vs -

VINCENT S. FLASK, CITY AUDITOR, et al.,

Respondents.

PER CURIAM OPINION

Decided: March 4, 2024 Judgment: Petition dismissed

Joryan Evan Pizzulo, pro se, 3320 Dunston Drive, N.W. #2, Warren, OH 44485 (Relator).

Thomas J. Wilson, Comstock, Springer & Wilson Co., LPA, 100 Federal Plaza East, Suite 926, Youngstown, OH 44503 (For Respondent Vincent Flask).

Gareth A. Whaley and Jeffrey Stankunas, Isaac Wiles & Burkholder, LLC, Two Miranova Place, Suite 700, Columbus, OH 43215 (For Respondent Stephanie Penrose).

PER CURIAM.

{¶1} On December 27, 2023, relator, Joryan Pizzulo, filed a pro se “Verified

Complaint for Writ of Mandamus and Injunctive Relief” in this court. Relator alleged that

respondents, Vicent Flask in his capacity as Warren City Auditor (Auditor) and Stephanie

Penrose in her capacity as Director of the Trumbull County Board of Elections (Board), had improperly disqualified 221 signatures for a referendum petition, including his own. 1

Relator sought an injunction to prevent the underlying municipal ordinance from going

into effect pending his challenge to the disqualification of the signatures for the

referendum petition.

{¶2} On January 5, 2024, relator filed an “Amended Complaint for Writ of

Mandamus and Injunctive Relief” in which he included a missing page that had not been

attached to his original filing.

{¶3} Relator’s complaint alleged that on November 8, 2023, the City of Warren

passed ordinance 13287-2023 granting elected officials a pay raise. A referendum

petition was circulated, and relator signed the petition.

{¶4} That petition was submitted to the Auditor on December 8, 2023. The

Auditor delivered the referendum petition to the Board on December 18, 2023.

{¶5} Relator’s complaint alleged that the referendum petition required 950

certified signatures and that the Board only certified 901. The Board invalidated the

signatures of 221 electors.

{¶6} Relator’s complaint requests that this Court give “all the 221 electors who

signed the petition time to complete AFFIDAVITs and seek hearing and review” on the

basis that if 49 additional signatures could be certified, the referendum petition would

have sufficient signatures to appear on the ballot.

1. Although not specifically plead as such, we interpret relator’s claims as against the entities rather than the individuals named, as suits against individuals acting in their official capacity “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611, fn. 55 (1978). 2

Case No. 2023-T-0104 {¶7} Relator stated that he “completed a standard Ohio Voter Registration and

Information Update Form changing address from his previous residence * * * to his new

apartment” both of which were located in the City of Warren. Relator attached an affidavit

to his complaint which stated that he signed a change of address form updating his voting

address on December 7, 2023, and that he wants his signature to count toward the

{¶8} Ordinance 13287-2023 went into effect on January 1, 2024.

{¶9} Service was made on the Board and the Auditor on January 9, 2024. On

January 12, 2024, we issued an Alternative Writ ordering respondents to move, plead, or

otherwise respond to relator’s petition by January 19, 2024. We also designated this an

expedited election case and, pursuant to Loc.R. 101(E), provided that all responses to

motions shall be filed within seven days and that there shall be no reply to any motion.

{¶10} On January 19, 2024, the Board filed a Civ.R. 12(B)(6) motion to dismiss.

The Board’s Motion to Dismiss argued that relator failed to state a claim upon which relief

could be granted because: (1) relator failed to allege that the Board had incorrectly

invalidated his signature and did “not specify which address he wrote on the petition. He

does not allege that this [change of address] card was submitted to the Board before his

signature was processed;” (2) relator lacked standing to challenge the Board’s decision

to invalidate signatures not his own; and (3) the Board had no statutory or due process

requirement to provide a hearing on the question of his invalidated signature pursuant to

State ex rel. Nauth v. Dirham, 161 Ohio St.3d 365, 2020-Ohio-4208, 163 N.E.3d 526.

{¶11} On January 26, 2024, the Auditor filed a Motion for Leave to File Instanter

and concurrently filed a Motion to Dismiss. We granted the Motion to File Instanter. The

Case No. 2023-T-0104 Auditor’s Motion to Dismiss Argued that relator, as a pro se litigant, cannot seek this writ

on behalf of other parties. Because of this, none of the other referenced individuals whose

signatures the Board invalidated are parties to this action and even if relator’s sole

signature on the referendum petition were counted, there would still not be sufficient

signatures for the referendum petition to be placed on the ballot. Therefore, the Auditor

argued that relator’s petition should be dismissed because he has not set forth a claim

upon which relief can be granted.

{¶12} On February 1, 2022, relator filed a response in opposition to the Board’s

motion to dismiss. Relator argued that he and other individuals who had purportedly

signed the referendum petition had appealed to the Board, but the Board had not provided

a written response as to “how to handle challenges to denied electors signatures aka

super ‘votes’ counting, thus the disenfranchisement under federal and state laws, both

common and revised.” He argued that respondents had not addressed the due process

issue for the appeal process. He said that he was seeking relief from this Court in

mandamus so that relator “and others like him, one of who lived and voted at her address

for 50 years,” could have their signatures validated by the Board.

{¶13} Relator did not file a response in opposition to the Auditor’s Motion to

Dismiss.

{¶14} On February 9, 2024, the Board filed a Motion for Summary Judgment,

producing evidentiary materials relevant to relator’s change of address and renewing its

claims that relator has not made a claim upon which relief can be granted as previously

set forth in the Board’s Motion to Dismiss.

Case No. 2023-T-0104 {¶15} Although the Board has filed a Motion for Summary Judgment, we decide

this case solely on the standards set forth in Crim.R. 12(B)(6).

{¶16} Mandamus is a writ, issued in the name of the state to an inferior tribunal,

a corporation, board, or person, commanding the performance of an act which the law

specially enjoins as a duty resulting from an office, trust, or station.” R.C. 2731.01. “To be

entitled to a writ of mandamus, a relator must be able to prove that: (1) a clear legal right

to have a specific act performed by a public official; (2) the public official has a clear legal

duty to perform that act; and (3) there is no legal remedy that could be pursued to

adequately resolve the matter.” State ex rel. Vance v. Kontos, 11th Dist. Trumbull No.

2014-T-0078, 2014-Ohio-5080, ¶ 9.

{¶17} A relator seeking a writ of mandamus must prove entitlement to the writ by

clear and convincing evidence. State ex rel. Ward v. Reed, 141 Ohio St.3d 50, 2014-

Ohio-4512, 21 N.E.3d 303, ¶ 10. “A court can dismiss a mandamus action under Civ.R.

12(B)(6) for failure to state a claim upon which relief can be granted if, after all factual

allegations of the complaint are presumed true and all reasonable inferences are made

in the relator’s favor, it appears beyond doubt that he can prove no set of facts entitling

him to the requested writ of mandamus.” State ex rel. Nyamusevya v. Hawkins, 165 Ohio

St.3d 22, 2021-Ohio-1122, 175 N.E.3d 495, ¶ 10, citing State ex rel. Russell v. Thornton,

111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 9.

{¶18} In State ex rel. Nauth v. Dirham, 161 Ohio St.3d 365, 2020-Ohio-4208, 163

N.E.3d 526, the relators, Nauth and a group called Concerned Citizens of Medina City,

filed a referendum petition. Id. at ¶ 1. That petition fell 44 signatures short of qualifying for

the ballot.

Case No. 2023-T-0104 {¶19} The relators submitted an “appeal/request” to the Medina County Board

claiming that the Board had improperly invalidated signatures and thus deprived the

electors of their right to participate in the referendum process. Id. at ¶ 5. The Medina

County Board did not respond to the request, and the relators then submitted a protest to

the Board. Id. at ¶ 6. The Board similarly took no action and the relators asked that the

Medina City Finance Director resubmit the signatures to the Board. Id. at ¶ 7. The Finance

Director did not do so, and the relators made a final request for a public hearing to the

Board, which was similarly ignored. Id. at ¶ 8. Ultimately, the relators filed a petition for

writ of mandamus in the Ohio Supreme Court to direct the Medina County Board of

Elections to certify 47 signatures as valid, which the Medina County Board had

disqualified. Id. at ¶ 9.

{¶20} Under R.C. 731.29, a referendum petition may not be placed on the ballot

until “(1) the board validates a sufficient number of signatures;” (2) the city auditor or

village clerk determines the sufficiency and validity of the petition; and (3) “the board

determines under R.C. 3501.11(K) and 3501.39 that the petition is sufficient and valid.”

Id. at ¶ 23, citing State ex rel. Sinay v. Sodders, 80 Ohio St.3d 224, 231, 685 N.E.2d 754

(1997).

{¶21} The Court said that the relators did not “get past the first step, because the

board did not validate a sufficient number of signatures for the referendum to qualify for

the ballot.” Id. While a statutory mechanism existed for a protestor to challenge a

municipal referendum petition being certified for the ballot, no such mechanism existed

“for a referendum proponent to protest a finding by a board of elections that a petition

contained an insufficient number of signatures. Relators, therefore, have no statutory right

Case No. 2023-T-0104 to a hearing before the board.” Id. Therefore, the Court concluded that a “mandamus

action provides all the process that relators are due” as a remedy. Id. at ¶ 24.

{¶22} To demonstrate a clear legal right to relief and clear legal duty to act, the

relators must “show that the board and/or [the finance director] engaged in fraud,

corruption, or an abuse of discretion.” Id. at ¶ 13. The relators did not allege fraud or

corruption but did contend there was an abuse of discretion “in taking actions that have

kept the referendum petition from being certified * * *.” Id.

{¶23} The relators failed to demonstrate an abuse of discretion because they

failed to show by clear and convincing evidence that the Board had invalidated the 47

signatures, let alone that they had been invalidated for not matching the alleged signer’s

voter-registrations cards. Id. at ¶ 28. This failure resulted because “none the affidavits”

from those voters whose signatures were disqualified “asserted personal knowledge that

the board had invalidated an affiant’s signature on that basis or any other. And crucially,

none of the part-petitions containing the signatures of the 47 affiants, or any other

evidence showing which signatures were invalidated, has been submitted as evidence.”

Id. at ¶ 29.

{¶24} Turning to this case, even after all factual allegations of the complaint are

presumed true and all reasonable inferences are made in the relator’s favor, he fails to

set forth facts entitling him to the requested writ of mandamus.

{¶25} Relator’s petition for writ of mandamus fails to state a claim upon which

relief can be granted for at least two reasons. First, to establish an abuse of discretion,

relator must demonstrate respondents’ “’failure to exercise sound, reasonable, and legal

decision-making.’” State v. Raia, 11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707,

Case No. 2023-T-0104 ¶ 9, quoting State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62,

quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). Relator has not claimed that the

Board or Auditor acted through fraud or corruption.

{¶26} Although relator vaguely claims that he signed a change of address form on

December 7, 2023, he does not allege that, at the time he signed the petition, he had

submitted a change of address form with the Board. “An elector must be ‘registered’ in

order to either vote or sign such petition on the day that he or she decides to exercise the

right. In either case, that person must have filed a change of residence notice with the

board of elections.” (Emphasis sic.) In re Protest Filed by Citizens for Merit Selection of

Judges, Inc., 49 Ohio St.3d 102, 106, 551 N.E.2d 150 (1990). Relator has not claimed

that he had submitted his change of address form to the Board by the time the Board

certified the referendum petition signatures on December 20, 2023. Because of this, he

has not pled any fact which would demonstrate that the Board’s decision to invalidate his

signature was an abuse of discretion.

{¶27} Second, and more importantly, relator does not have standing to bring this

action on behalf of other invalidated signatories. “A party lacks standing unless he has, in

an individual or representative capacity, ‘some real interest in the subject matter of the

action.’” State ex rel. Ames v. Portage Cty. Bd. of Revision, 166 Ohio St.3d 225, 2021-

Ohio-4486, 184 N.E.3d 90, ¶ 10, quoting State ex rel. Dallman v. Franklin Cty. Court of

Common Pleas, 35 Ohio St.2d 176, 298 N.E.2d 515 (1973), syllabus. To have standing

in a mandamus action, the relator must be “‘beneficially interested’ in the case.” State ex

rel. Hills & Dales v. Plain Local School Dist. Bd. of Edn., 158 Ohio St.3d 303, 2019-Ohio-

5160, 141 N.E.3d 189, ¶ 9, quoting State ex rel. Spencer v. E. Liverpool Planning Comm.,

Case No. 2023-T-0104 80 Ohio St.3d 297, 299, 685 N.E.2d 1251 (1997). “‘[T]he applicable test is whether [a]

relator[ ] would be directly benefited or injured by a judgment in the case.’” Ames, quoting

Sinay, 80 Ohio St.3d at 226. If a party does not have standing, the mandamus action will

be dismissed. Id.

{¶28} There is no dispute that relator has standing to bring the claim as it relates

to his own signature. However, relator’s suit does not name any of the other invalidated

signatories as parties. Unlike Nauth, relator is not the proponent of the referendum

petition and does not litigate the rights on behalf of those other individuals invalidated

from the petition. Because of this, even if we were to accept his claims as true and find

that the Board abused its discretion in disqualifying his signature, relator does not have

standing to assert similar claims on behalf of those other signatories the Board

invalidated. Relator does not have a clear legal right to challenge, and the Board does

not have a clear legal duty to review, the determination that the Board improperly

invalidated the other 220 signatures.

{¶29} For the foregoing reasons, respondents’ Motions to Dismiss are granted

and relator’s complaint for Writ of Mandamus is dismissed. All other pending motions are

overruled as moot.

MATT LYNCH, J., JOHN J. EKLUND, J., ROBERT J. PATTON, J., concur.

Case No. 2023-T-0104