State ex rel. Combs v. Greene Cty. Bd. of Elections (Slip Opinion) , 2019 Ohio 4110 ( 2019 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Combs v. Greene Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-4110.]
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SLIP OPINION NO. 2019-OHIO-4110THE STATE EX REL. COMBS v. GREENE COUNTY BOARD OF ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Combs v. Greene Cty. Bd. of Elections,
Slip Opinion No. 2019-Ohio-4110.]
Elections—Mandamus—Writ of mandamus sought to compel board of elections to
verify signatures on relator’s nominating petition to be candidate for
township trustee—R.C. 3501.38(E)(1)—A circulator of a part-petition must
indicate the number of signatures contained on that part-petition—Writ
denied.
(No. 2019-1234—Submitted October 2, 2019—Decided October 4, 2019.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} Relator, L. Stephen Combs, seeks a writ of mandamus ordering
respondent, the Greene County Board of Elections, to count the signatures on his
petition and certify his name to the November 5, 2019 general-election ballot as a
candidate for Xenia Township Trustee. We deny the writ.
SUPREME COURT OF OHIO
I. BACKGROUND
{¶ 2} Combs submitted his nominating petition on August 6, 2019. It
consisted of three part-petitions. The first had 13 signatures, the second had 11
signatures, and the third had 20 signatures. At the bottom of each part-petition,
Combs signed a declaration, “under penalty of election falsification,” that included
the statement, “I am the circulator of the foregoing petition containing 44
signatures.”
{¶ 3} At its August 19 meeting, the board rejected Combs’s petition because
the circulator statement on each part-petition indicated 44 signatures—the total
number on the entire petition—rather than the number of signatures on the
individual part-petition. Because it rejected the petition on this basis, the board did
not complete its verification of the signatures.
{¶ 4} Combs requested an expedited reconsideration hearing. In an
affidavit, Combs avers that he received no notice of a hearing but that an unnamed
representative of the board told him on September 3 that the expedited hearing had
already taken place and that his petition had been denied. The board denies that a
hearing occurred. The minutes of its August 27 meeting reflect that the board was
informed of Combs’s reconsideration request, that the board’s legal counsel
advised that it could hold a hearing but was not required to, that the board chair
observed that it had not been the board’s practice to hold reconsideration hearings
in such circumstances, and that the topic died for lack of a motion. The board’s
deputy director avers in an affidavit that the minutes are accurate and that no
hearing on Combs’s request for reconsideration took place.
{¶ 5} On September 6, Combs filed his complaint seeking a writ of
mandamus ordering the board to verify the signatures on his petition and to certify
his name to the November 5 ballot.
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II. ANALYSIS
A. Mandamus Standard
{¶ 6} Combs is entitled to a writ of mandamus if he establishes by clear and
convincing evidence that (1) he has a clear legal right to have his petition signatures
verified and, if they are sufficient, have his name placed on the ballot, (2) the board
has a clear legal duty to verify the signatures and place his name on the ballot, and
(3) he lacks an adequate remedy in the ordinary course of the law. State ex rel.
Davis v. Summit Cty. Bd. of Elections, 137 Ohio St.3d 222, 2013-Ohio-4616, 998
N.E.2d 1093, ¶ 12. Because of the proximity of the election, Combs lacks an
adequate remedy outside this proceeding. See State ex rel. Finkbeiner v. Lucas Cty.
Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18.
B. Indication of the Number of Signatures on Each Petition Paper
{¶ 7} Combs argues that he has a clear legal right to have his petition
signatures verified and his name placed on the November ballot and that the board
has a clear legal duty to verify the signatures and place his name on the ballot. We
disagree.
{¶ 8} R.C. 3501.38(E)(1) provides, “On each petition paper, the circulator
shall indicate the number of signatures contained on it * * *.” (Emphasis added.)
“Petition paper” means “part-petition,” not the petition as a whole. Ohio Renal
Assn. v. Kidney Dialysis Patient Protection Amendment Commt., 154 Ohio St.3d
86, 2018-Ohio-3220, 111 N.E.3d 1139, ¶ 24 (“the General Assembly has
distinguished between a ‘petition’ and the individual ‘part-petitions’ or ‘petition
papers’ that constitute a petition”). And “R.C. 3501.38(E) demands strict
compliance.” State ex rel. Commt. for the Referendum of Lorain Ordinance No.
77-01 v. Lorain Cty. Bd. of Elections, 96 Ohio St.3d 308, 2002-Ohio-4194, 774
N.E.2d 239, ¶ 49. Combs did not strictly comply with R.C. 3501.38(E)(1), because
he did not, on each petition paper, indicate the number of signatures the petition
paper contained.
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SUPREME COURT OF OHIO
1. Statutory Interpretation and Strict Compliance
{¶ 9} Combs raises two arguments regarding the interpretation of and strict
compliance with R.C. 3501.38(E)(1). These arguments are without merit.
{¶ 10} Combs first argues that he actually complied with R.C. 3501.38,
because the statute reads: “All * * * nominating petitions * * * shall * * * be
governed by the following rules: * * * (E)(1) On each petition paper, the circulator
shall indicate the number of signatures contained on it.” Combs posits that by “it,”
the statute means the nominating petition.
{¶ 11} The interpretation Combs seeks is contrary to a plain reading of the
statute. To accept Combs’s reading would require that we set aside the ordinary
rules of grammar and apply the singular “it” to the plural “nominating petitions”
and overlook the proximate phrase “each petition paper” in favor of the phrase
“nominating petitions,” which appears at the very start of R.C. 3501.38. The
construction he advocates is also at odds with other parts of the statutory scheme.
There is no statutory requirement that a petition be circulated by a single circulator,
and it is common for more than one person to circulate the separate parts of a
petition. Requiring each of those individual circulators to state the total number of
signatures on the entire petition, including signatures that the circulator did not
witness, would be inconsistent with the form of the circulator statement set forth in
R.C. 3513.261. And it would be counter to the state’s interest in deterring and
preventing fraud, see State ex rel. Linnabary v. Husted, 138 Ohio St.3d 535, 2014-
Ohio-1417, 8 N.E.3d 940, ¶ 31.
{¶ 12} Combs also argues that only substantial, not strict, compliance with
R.C. 3501.38(E)(1) is required, citing R.C. 3513.261. But R.C. 3513.261 merely
provides that a nominating petition must be substantially in the form provided in
the statute; it does not change the fact that candidates are required to strictly comply
with R.C. 3501.38(E)(1). State ex rel. Simonetti v. Summit Cty. Bd. of Elections,
151 Ohio St.3d 50, 2017-Ohio-8115, 85 N.E.3d 728, ¶ 26 (R.C. 3513.261 “requires
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January Term, 2019
only substantial compliance with the prescribed ‘form’ of the nominating petition”
but “contains no language regarding substantial compliance as to other matters”).
2. Secretary of State Form No. 3-R
{¶ 13} Combs argues that he has a clear legal right to relief because, he
claims, he complied with the secretary of state’s Form No. 3-R, which is a form
created by the secretary that may be circulated to obtain electors’ signatures for a
candidate for township office. Form No. 3-R contains a statement requiring the
circulator to declare, under penalty of election falsification:
I am the circulator of the foregoing petition containing [number of]
signatures; * * * I witnessed the affixing of every signature; * * *
all signers were to the best of my knowledge and belief qualified to
sign; and * * * every signature is to the best of my knowledge and
belief the signature of the person whose signature it purports to be
* * *.
Citing State ex rel. Crowl v. Delaware Cty. Bd. of Elections, 144 Ohio St.3d 346,
2015-Ohio-4097, 43 N.E.3d 406, ¶ 10, Combs argues that because this declaration
uses the word petition—not part-petition or petition paper—the secretary of state
has interpreted R.C. 3501.38(E)(1) to require the circulator to state the number of
signatures on the full petition, not the number on the part-petition, and that we
should defer to the secretary’s interpretation.
{¶ 14} As explained above, however, Combs’s interpretation would not
make sense in any situation in which there is more than one circulator: each
individual circulator would be unable to make the required declaration because he
would not have witnessed the signatures on the part-petitions that he did not
circulate. In addition, Combs overlooks the fact that Form No. 3-R’s declaration
refers to the number of signatures on the foregoing petition. Combs’s three
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SUPREME COURT OF OHIO
declarations—coming at the end of his three part-petitions—cannot all logically
refer to 44 foregoing signatures. It is therefore unlikely that the secretary has
interpreted R.C. 3501.38(E)(1) as Combs suggests. Moreover, “when an election
law is clear, ‘the settled rule is that [it is] mandatory and require[s] strict
compliance.’ ” (Brackets sic.) Ohio Renal Assn., 154 Ohio St.3d 86, 2018-Ohio-
3220, 111 N.E.3d 1139, at ¶ 8, quoting State ex rel. Phillips v. Lorain Cty. Bd. of
Elections, 93 Ohio St.3d 535, 539, 757 N.E.2d 319 (2001). Since R.C.
3501.38(E)(1) is clear, no interpretation is warranted, and the question of deference
is moot. The secretary lacks the authority to change the statute’s requirements.
3. Lack of Fraud
{¶ 15} Combs next argues that he has a clear legal right to relief because he
committed no fraud, citing Ohio Manufacturers’ Assn. v. Ohioans for Drug Price
Relief Act, 149 Ohio St.3d 250, 2016-Ohio-5377, 74 N.E.3d 399, ¶ 44 (“OMA”).
In OMA, we noted that “[t]he requirement that a circulator state the number of
signatures personally witnessed ‘is a protection against signatures being added
later.’ ” Id., quoting State ex rel. Loss v. Lucas Cty. Bd. of Elections, 29 Ohio St.2d
233, 234, 281 N.E.2d 186 (1972) (invalidating a part-petition because the line
indicating the total number of signatures witnessed was left blank). We then stated,
“We are not dealing here with a case of minor or negligent miscounts. Systemic
overcounts of the magnitude seen in this case are an open invitation to fraud and
make this case different from all previous cases cited by the parties.” Id.{¶ 16} However, this case does not present an “overcount” in the sense that
that word was used in OMA. Combs wrote on each part-petition that there were
“44” signatures. But each part-petition contains only 20 numbered signature lines
and could therefore contain a maximum of 20 signatures. Combs did not attempt
to do what the statute required (write on each part-petition the number of signatures
witnessed on that part-petition) and then negligently execute that task by
miscounting the signatures—he misinterpreted R.C. 3501.38(E)(1) and thus did
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January Term, 2019
something other than what it required. And we have never held that the absence of
fraud is an excuse for not complying with a statute’s strict requirements.
{¶ 17} In this mandamus action, Combs’s burden is to show by clear and
convincing evidence that he has a clear legal right to the relief he seeks. Combs
suggests that writing on each part-petition the total number of signatures on the
entire petition was sufficient to accomplish R.C. 3501.38(E)(1)’s goal of preventing
fraud. But even assuming that is true, he fails to explain how meeting what he
perceives to be the statute’s goal in a way other than the one expressly set forth by
the legislature translates into a clear legal right to have his name certified to the
ballot.
4. Reconsideration Hearing
{¶ 18} Combs asserts that the board held a hearing on his request for
reconsideration, and he argues that the board violated a legal duty by not providing
him with prior notice of the hearing. The board counters that it did not hold a
hearing. Combs’s evidence that a hearing occurred consists of his own affidavit, in
which he avers that “someone” at the board told him on September 3 that his
hearing request had been granted and that the hearing had already taken place. The
board’s evidence includes its meeting minutes, indicating that Combs’s
reconsideration request died for lack of a motion, and the affidavit of its deputy
director, who prepared the minutes, averring that the minutes are accurate and that
no hearing was held. On this record, Combs has not established by clear and
convincing evidence that a hearing occurred. See Disciplinary Counsel v. Jackson,
81 Ohio St.3d 308, 311, 691 N.E.2d 262 (1998) (“When clear and convincing
evidence is required, we are not disposed to let the matter turn on allegations of the
possible failure of service and affidavits with possible hearsay evidence”).
{¶ 19} Moreover, as Combs acknowledges, boards of elections have no
legal duty to hold reconsideration hearings. Combs is correct that if a board
nevertheless chooses to hold a hearing, it must provide notice to the parties. See
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SUPREME COURT OF OHIO
Secretary of State Directive 2019-18, Section 1.04, Ohio Election Official Manual,
at 12-11. But Combs has not asked us to order the board to hold a new hearing with
proper notice, and he has not explained how the notice requirement (or a board’s
failure to meet it) would give rise to a clear legal right to the relief that he does seek
in this action—an order compelling the board to verify his petition signatures and
place his name on the ballot.
III. CONCLUSION
{¶ 20} Because Combs has not established a clear legal right to the relief he
seeks or a clear legal duty on the part of the board to provide it, we deny the writ.
Writ denied.
O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
KENNEDY, J., concurs in judgment only.
__________________
Isaac, Wiles, Burkholder & Teetor, L.L.C., Donald C. Brey, Mark R.
Weaver, and Matthew R. Aumann, for relator.
Stephen K. Haller, Greene County Prosecuting Attorney, and Elizabeth A.
Ellis, Assistant Prosecuting Attorney, for respondent.
________________________
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