State ex rel. Brady v. Blackwell

112 Ohio St. 3d 1

• Court: Ohio Supreme Court
• Decided: November 3, 2006
• Docket: No. 2006-1979
• Status: Published

Opinions

Per Curiam.

{¶ 1} This is an appeal from a judgment entered by the court of appeals granting a writ of prohibition precluding the Cuyahoga County Board of Elections from removing appellee Jennifer Brady’s name from the November 7 election ballot. Because the procedural posture of this case is such that the secretary of state reasonably believed that he was not required to submit evidence to demonstrate that a tie vote of the Cuyahoga County Board of Elections on protests challenging the board’s placement of Brady on the ballot was lawfully broken by the assistant secretary of state, we reverse the judgment of the court of appeals and remand the cause to permit the parties to submit evidence on that issue. We further hold that the court of appeals’ decision in this case shall not be cited as appropriate authority on the issues raised.

Selection and Certification of Jennifer Brady

{¶ 2} Michael J. O’Shea won the May 2006 Democratic primary election for the office of state representative for the 16th Ohio House District. O’Shea subsequently withdrew as the nominee, and on June 27, 2006, Democratic Party district committee members held a meeting at which they selected appellee, Jennifer Brady, to replace O’Shea as the Democratic Party candidate.

{¶ 3} By letter dated July 12, 2006, A. Steven Dever, the chairman of the district committee meeting at which Brady was selected to be the Democratic Party nominee, informed Cuyahoga County Democratic Party Chairman Jimmy Dimora that (1) he had served as chairman of a special meeting called by the Cuyahoga County Democratic Party for the purpose of selecting a replacement candidate for O’Shea, (2) at the meeting, a quorum was present from each of the cities in the district and the district as a whole, and (3) Brady was nominated and unanimously chosen as the replacement candidate. Dever’s letter was not directed to the board of elections, was not sworn under oath, failed to include a notarized statement of a secretary of the district committee meeting, and was not accompanied by a letter from Brady accepting the nomination. See R.C. 3513.31(D).

{¶ 4} By letter dated July 14, 2006, Dimora forwarded the July 12, 2006 letter from Dever to appellee Cuyahoga County Board of Elections. Dimora recommended that the board of elections place Brady’s name on the November 7, 2006 ballot as the Democratic candidate for state representative of the 16th Ohio House District. Dimora also requested that the board advise the party “[i]f there are any additional steps necessary to finalize this change.” Dimora’s letter was not made under oath. The board of elections received Dimora’s letter on July 18.

{¶ 5} Subsequently, the board of elections certified Brady as the Democratic candidate for state representative of the 16th Ohio House District.

{¶ 6} On August 22, 2006, the board received a letter from Brady dated August 21, 2006, in which she accepted the nomination to be the Democratic candidate. She also requested that the board contact her “as to any further information that [she] might need to provide.” Brady’s acceptance letter did not accompany any certification of her selection by Dever or the secretary of the district committee meeting. See R.C. 3513.31(D).

{¶ 7} On August 23, 2006, the board received a letter dated August 22, 2006, from Dimora and Karen Pianka, the recording secretary of the Cuyahoga County Democratic Party. The letter was worded identically to Dimora’s July 14 letter and also enclosed Dever’s July 12 letter. Dimora and Pianka signed the August 22 letter, and the letter contained the notary stamp of Katrina Dillard. Dimora and Pianka did not, however, certify under oath the accuracy of the contents of the letter, and the notary public did not attest that she had witnessed Dimora or Pianka swearing to the truth of the contents. In addition, neither Dever nor any district-committee-meeting secretary stated under oath that Brady had been selected at the meeting. See R.C. 3513.31(D). Like Dimora’s previous letter, the August 22 letter from Dimora and Pianka included a request that the board contact the party if additional actions were required.

Board of Elections Protest Proceeding

{¶ 8} On September 1 and 6, the board received written protests challenging Brady’s candidacy. The protesters claimed that the requirements for certifying Brady as the replacement nominee had not been followed. By affidavit dated September 14, Dever stated that his July 12 letter to Dimora was true and accurate.

{¶ 9} On September 15, the board of elections held a hearing on the protests. After considering Brady’s and the protesters’ arguments as well as a written legal opinion prepared by a private law firm at the request of the county prosecuting attorney, the board deadlocked two-to-two on a motion to reject the protests. At the hearing, Dimora conceded that no secretary had been designated to take minutes at the district committee meeting at which the members selected Brady.

Breaking the Tie Vote

{¶ 10} Pursuant to R.C. 3501.1KX), the board then submitted the matter to appellant, Secretary of State J. Kenneth Blackwell, to break the tie. On October 3, Assistant Secretary of State Monty Lobb asserted by letter that he, Lobb, was breaking the board’s deadlock by voting in opposition to the motion to reject the protests against Brady’s candidacy for state representative of the 16th Ohio House District. Lobb concluded that “the attempt to name Jennifer Brady as the individual to fill the vacancy as the Democratic nominee for State Representative for the 16th Ohio House District failed to comply — either strictly or substantially — with the mandates of R.C. § 3513.31(D).” The letter did not assert that Secretary of State Blackwell had assigned the responsibility of breaking election board ties to Lobb, nor did it assert that Blackwell was either absent or under a disability precluding Blackwell from breaking the tie. Lobb himself signed the letter as assistant secretary of state.

Court of Appeals Case

{¶ 11} On October 5, Brady filed a complaint in the Court of Appeals for Cuyahoga County against the secretary of state and the board of elections and its members for a writ of mandamus to keep her name on the ballot. The court of appeals ordered respondents to file a “dispositive motion” and further ordered Brady to file a transcript of the board hearing. In accordance with the court’s order, the secretary of state filed a motion to dismiss for failure to state a claim upon which relief can be granted, in which he argued in part that Brady’s mandamus claim was an ill-disguised request for a prohibitory injunction. Brady then filed a motion to amend her complaint to add an alternate claim for a writ of prohibition barring the secretary and the board from removing Brady’s name from the ballot.

{¶ 12} On October 20, the court of appeals granted a writ of prohibition to keep Brady’s name on the ballot. The court of appeals concluded that the secretary of state had failed to submit evidence that Assistant Secretary Lobb was authorized to break the tie vote and that a liberal construction of the pertinent statutes justified Brady’s certification as a candidate. On that same date, the court of appeals granted Brady’s motion to amend her complaint to allege an alternate claim for a writ of prohibition.

{¶ 13} On October 23, the secretary appealed from the court of appeals’ judgment. We granted the secretary’s motion to expedite this appeal, and the parties submitted briefs on October 31. The board of elections and its members filed' a brief in which they state that they will not take a substantive position in this appeal and that they will comply with any judgment entered by the court.

{¶ 14} This cause is now before us for a consideration of the merits.

Tie-Breaking Vote Cast by Assistant Secretary of State

{¶ 15} The court of appeals determined that Brady had established her entitlement to extraordinary relief in prohibition because appellants had not “submitted any evidence that substantiates that the secretary of state specifically delegated his duty under R.C. 3501.11(X)” to break ties to the assistant secretary.

{¶ 16} R.C. 3501.11(X) provides:

{¶ 17} “In all cases of a tie vote or a disagreement in the board, if no decision can be arrived at, the director or chairperson shall submit the matter in controversy, not later than fourteen days after the tie vote or the disagreement, to the secretary of state, who shall summarily decide the question, and the secretary of state’s decision shall be final.” (Emphasis added.)

{¶ 18} R.C. 111.04 provides:

{¶ 19} “In case of the absence or disability of the secretary of state, the assistant secretary of state shall have power to perform the duties of the secretary of state. The general duties of the assistant secretary shall be such as the secretary of state assigns him.”

{¶ 20} R.C. 3501.11(X) plainly states that in the case of a tie vote by a board of elections, the director or chairperson “shall submit the matter in controversy * * * to the secretary of state, who shall summarily decide the question.” In this case, the authority to break the election board tie rested with Secretary of State Blackwell.

{¶ 21} The first sentence of R.C. 111.04 provides that “[i]n case of the absence or disability of the secretary of state, the assistant secretary of state shall have power to perform the duties of the secretary of state.” In this first sentence, the General Assembly has vested the assistant secretary of state with power to perform the duties of the secretary of state in only two situations: absence or disability of the secretary of state.

{¶ 22} The second sentence of R.C. 111.04 authorizes the secretary of state to assign “general” duties to the assistant secretary of state. We need not decide today whether the secretary’s duty under R.C. 3501.11(X) to break a tie vote by a board of elections is a properly assignable duty under the second sentence of R.C. 111.04.

{¶ 23} In the absence of one of the circumstances set forth by the General Assembly, absence, disability, or — possibly—assignment by the secretary, the assistant secretary of state does not have the “power to perform the duties of the secretary of state.” R.C. 111.04.

{¶ 24} The court of appeals erroneously concluded that because the secretary did not submit evidence establishing that one of these circumstances occurred so as to authorize the assistant secretary to cast the tie-breaking vote, Brady was entitled to a writ of prohibition to keep her name on the ballot.

{¶ 25} The failure of Secretary of State Blackwell to submit evidence was dictated by the peculiar procedural posture of the case and is not an appropriate basis for issuance of an extraordinary writ of prohibition. Although Brady raised this issue in her brief in support of her complaint, she never specifically alleged in her initial mandamus complaint that the assistant secretary improperly cast the tie-breaking vote. In fact, she alleged in her complaint that “Blackwell issued [the] letter ruling.” (Emphasis added.) She did, however, attach Assistant Secretary Lobb’s tie-breaking decision as an exhibit to her complaint.

{¶ 26} The court of appeals ordered the secretary of state to file a “dispositive motion,” which permitted the secretary to file a Civ.R. 12(B)(6) motion to dismiss, a motion that does not require evidentiary support. In his motion, the secretary asserted that Brady’s mandamus claim — the only claim then asserted by her— was actually a disguised claim for a prohibitory injunction, i.e., a claim to prevent the secretary and the board of elections from removing her name from the ballot. It was only after the secretary filed this dispositive motion that Brady sought leave to amend her complaint to include a prohibition claim.

{¶ 27} Moreover, the court of appeals granted Brady’s motion to amend her complaint to add the prohibition claim on the same date that the court of appeals granted the writ of prohibition. The court of appeals did not give the secretary or Brady the opportunity to submit evidence on the prohibition claim. The Eighth District had before it an insufficient record upon which to order a writ of prohibition based upon the assistant secretary of state’s tie-breaking vote. In order to be entitled to a writ of prohibition, Brady had to establish that (1) the secretary of state and the board of elections were about to exercise (or have exercised) quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 2006-Ohio-1292, 846 N.E.2d 8, ¶ 21.

{¶ 28} The second element of that standard has yet to be sufficiently addressed. The court of appeals instead decided the merits of the prohibition claim based on the secretary’s motion to dismiss the mandamus claim.

{¶ 29} Under these circumstances, with no prohibition claim yet filed, the secretary could have reasonably concluded that he did not need to submit evidence on the R.C. 111.04 issue at the time he filed his motion to dismiss. He should not be penalized for that reasonable belief.

{¶ 30} Therefore, the court of appeals erred in granting the writ of prohibition without giving the secretary the opportunity to submit evidence on the merits of Brady’s prohibition claim. A remand to the court of appeals is necessary to permit the parties to submit evidence on whether Assistant Secretary Lobb had the legal authority to break the election board tie. The court of appeals will act with all due haste.

Conclusion

{¶ 31} Because the court of appeals erred in resolving the issue of whether the assistant secretary was authorized to break the tie vote of the elections board without affording the secretary and Brady the opportunity to submit evidence on this issue, we reverse the judgment of the court of appeals granting the writ of prohibition and remand the cause for further proceedings consistent with this opinion. Moreover, the court of appeals’ additional discussion concerning whether the district committee complied with the certification requirements of R.C. 3513.31(D) was premature because the parties had not submitted evidence concerning the threshold issue of whether the assistant secretary’s vote to break the elections board’s deadlock was authorized. In so holding, we further hold that the court of appeals’ decision and judgment shall not be cited as appropriate authority for any of the issues resolved therein.

Judgment reversed and cause remanded.

Moyer, C.J., Lundberg Stratton, O’Connor and Lanzinger, JJ., concur. O’Donnell, J., concurs separately. Pfeifer, J., dissents. Resnick, J., not participating.