Opinion
No. 90-642
Submitted and decided May 3, 1990.
Elections — Mandamus to compel board of elections to place name on primary ballot for office of judge of court of common pleas — Wrong date for term of office on declaration of candidacy submitted to board — Writ denied — R.C. 3513.08 requires that declaration state commencement date of term sought — R.C. 3501.38(I) prohibits altering of petition once it has been filed.
IN MANDAMUS.
ON MOTION TO DISMISS.
On February 22, 1990, relator, William F. Clinard, filed a declaration of candidacy and petitions with sufficient signatures to gain a place on the Democratic Party primary ballot for the office of Judge of the Court of Common Pleas of Greene County. Relator's intent was to seek the office of judge of the civil and criminal division of the common pleas court, the term of which begins on January 2, 1991. However, the declaration of candidacy was filled out to indicate that the term of office would begin on January 1, 1991.
Relator attempted to withdraw the declaration and petitions and change the date, but the director of the respondent, Greene County Board of Elections, refused to give permission to do so.
Relator contends that the director misled him into thinking the term began January 1, 1991. Respondent denies this.
In a letter dated February 27, 1990, respondent upheld the director's decision not to permit amendment of the declaration of candidacy. However, in that same letter, respondent informed relator that it had validated his petition for the office of judge of the court of common pleas for the term beginning January 1, 1991. This term is for the office of Judge of the Domestic Relations Division of the Court of Common Pleas of Greene County, and the term of that office does begin January 1, 1991.
On March 2 and 5, 1990, two persons filed formal protests to relator's candidacy to be the domestic relations judge. The protests were based on the county of relator's residence. On March 27, 1990, respondent held a formal hearing on the protests, and by letter dated March 29, 1990, informed relator that his declaration of candidacy and petitions had been invalidated because he was "not an electorate [ sic] of Greene County."
On April 18, 1990, relator filed this action for a writ of mandamus, seeking, first, placement of his name on the May 8, 1990 primary ballot as a Democratic nominee for common pleas judgeship of Greene County, civil and criminal division, or alternatively, as a candidate for judge of the domestic relations division. On April 25, 1990, respondent answered and filed a motion to dismiss. On April 25, 1990, relator filed a brief in support of his complaint and in opposition to respondent's motion to dismiss.
William F. Clinard, pro se. William F. Schenck, prosecuting attorney, Thomas M. Rose and Margaret E. Wittmer, for respondent.
In Count I of his complaint, relator alleges that the director of the respondent Greene County Board of Elections misled him so that he placed the wrong date for the common pleas judgeship, civil and criminal division, on the declaration of candidacy. In State, ex rel. Senn, v. Bd. of Elections (1977), 51 Ohio St.2d 173, 175, 5 O.O. 3d 381, 382, 367 N.E.2d 879, 880, we stated that a board of election's decisions on matters of sufficiency and validity of petitions are subject to review for allegations of fraud, corruption, abuse of discretion, or a clear disregard of statutes or applicable legal provisions. Therefore, because relator could have proved facts entitling him to relief on one of these bases, we overrule the motion to dismiss the claim for failure to state a claim on which relief can be granted. However, relator has introduced no evidence or even argument to substantiate the allegations of misrepresentation stated in the complaint and has, therefore, failed to sustain his burden of proof as to any fraud, corruption, or abuse of discretion. As to clear disregard of statutes or applicable legal provisions, in State, ex rel. Calhoun, v. Scioto Cty. Bd. of Elections (1988), 36 Ohio St.3d 164, 522 N.E.2d 49, citing earlier cases, we reaffirmed as mandatory the requirement in R.C. 3513.08 that the declaration of candidacy state the commencement date of the term sought. Moreover, R.C. 3501.38(I) declares that petitions, once filed, cannot be altered. Therefore, respondent did not disregard statutes or applicable legal provisions by invalidating relator's declaration of candidacy and petitions for common pleas judge of the civil and criminal division; it followed them.
As to Count II of the complaint, relator contends that respondent abused its discretion by invalidating his declaration of candidacy and petitions for judge of the domestic relations division on a finding that he is not an elector of Greene County. We have reviewed the transcript of the protest hearing on the matter and find that substantial evidence was presented by way of exhibits and testimony on which respondent could have concluded that relator was a resident of either Montgomery or Greene County. R.C. 3513.05 states that the board's decision is final on such matters, and we have declined to overrule these decisions, again, absent a showing of fraud, corruption, abuse of discretion, or clear disregard of statutes or applicable legal provisions. State, ex rel. Flynn, v. Bd. of Elections (1955), 164 Ohio St. 193, 57 O.O. 402, 129 N.E.2d 623, paragraph one of the syllabus, overruled on other grounds, State, ex rel. Schenck, v. Shattuck (1982), 1 Ohio St.3d 272, 1 OBR 382, 439 N.E.2d 891. There is no abuse of discretion when the board reaches its decision based on substantial though conflicting evidence.
Relator has failed to prove fraud, corruption, abuse of discretion, or clear disregard of statutes or applicable legal provisions as to either count of his complaint. Accordingly, although we overrule respondent's motion to dismiss, we deny the writ.
Writ denied.
MOYER, C.J., HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
SWEENEY, J., dissents.