State ex rel. Donahue v. Allen Cty. Bd. of Elections , 2021 Ohio 3292 ( 2021 )

[Cite as State ex rel. Donahue v. Allen Cty. Bd. of Elections, 2021-Ohio-3292.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE EX REL.,
ALICE DONAHUE, ET AL.,
PETITIONERS-APPELLANTS, CASE NO. 1-21-28
v.
THE ALLEN COUNTY OHIO, BOARD
OF ELECTIONS, ET AL., OPINION
RESPONDENTS-APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV 2021 0098
Judgment Affirmed
Date of Decision: September 20, 2021
APPEARANCES:
Richard E. Siferd for Appellants
Lawrence A. Huffman for Appellee, Elizabeth Hardesty
Kayla M. Campbell for Appellee, Bd. of Elections
Case No. 1-21-28
PER CURIAM
{¶1} Petitioners-appellants, Alice Donahue (“Donahue”) and Barton H.
Mills (“Mills) (collectively, “petitioners”), appeal the June 30, 2021 judgment of
the Allen County Court of Common Pleas denying their complaint for a writ of
prohibition and granting summary judgment in favor of respondents-appellees, the
Allen County Board of Elections (the “board”); Elizabeth Hardesty (“Hardesty”);
and Gary Freuh (“Freuh”), Mona Willamowski (“Willamowski”), Keith Cheney
(“Cheney”), and Jeffrey Rex (“Rex”) as members of the board (collectively,
“respondents”). For the reasons that follow, we affirm.
{¶2} This case stems from the 2021 mayoral election for the City of Lima in
which Hardesty is a candidate. Following the submission of Hardesty’s petition of
candidacy for mayor to the board on February 3, 2021, Mills challenged Hardesty’s
eligibility for the position on February 18, 2021 under Section 72 of the City of
Lima Charter, which requires elected officers to be residents and electors of Lima
for at least six months before the last date on which nominating petitions can be
filed.1 Mills alleged that Hardesty was not a resident and elector of Lima for at least
1
The election for the mayor of the City of Lima is conducted under R.C. 3513.251, which provides, in its
relevant part, that “[n]omination of nonpartisan candidates for election as officers of a municipal corporation
having a population of two thousand or more, as ascertained by the next preceding federal census, shall be
made only by nominating petition.” See also State ex rel. v. Franklin Cty. Bd. of Elections, 10th Dist. Franklin
No. 01AP-1235, 2002-Ohio-2708, ¶ 22; R.C. 3501.01(J); 3505.04.
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six months before the date on which nominating petitions could be filed in
accordance with the charter.
{¶3} On April 1, 2021, Donahue filed a complaint for a writ of prohibition
and declaratory judgment in the trial court against the board, Kathy A. Meyer
(“Meyer”), Director of the board; the City of Lima (“Lima”); Freuh, Willamowski,
Cheney, Rex, as members of the board; and Hardesty.2 (Doc. No. 1). Specifically,
Donahue sought to prevent the board from including Hardesty on only the May 4,
2021 primary-election ballot for Lima mayor. On April 6, 2021, the board, Meyer,
Freuh, Willamowski, Cheney, and Rex filed a motion to dismiss the complaint along
with an answer.3 (Doc. No. 8). That same day, Lima filed a motion to dismiss.
(Doc. No. 9). On April 13, 2021, Donahue voluntarily dismissed its complaint
under Civ.R. 41(A)(1)(a) against Meyer and Lima. (Doc. No. 12).
{¶4} On April 13, 2021, petitioners filed an amended complaint in
which Mills was added as a party to the case. (Doc. No. 13). The next day,
petitioners filed a second amended complaint. (Doc. No. 15). Hardesty filed an
answer on April 20, 2021. (Doc. No. 18). On April 26, 2021, the board, Freuh,
Willamowski, Cheney, and Rex filed a motion to dismiss the second amended
2
Even though we express no opinion on the timing of Donahue’s complaint, we reject any challenge to
Donahue’s standing to seek relief in prohibition. See State ex rel. Holwadel v. Hamilton Cty. Bd. of Elections,
144 Ohio St.3d 579, 2015-Ohio-5306, ¶ 40-42.
3
Motions to dismiss under Civ.R. 12(B)(6) in expedited-election cases are considered “inappropriate.”
Accord State ex rel. MacPherson v. Trumbull Cty. Bd. of Elections, 11th Dist. Trumbull No. 2011-T-0028,
2011-Ohio-1296, ¶ 6.
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complaint along with an answer. (Doc. No. 23). Petitioners filed a memorandum
in opposition to the board, Freuh, Willamowski, Cheney, and Rex’s motion to
dismiss the second amended complaint together with a motion for judgment on the
pleadings. (Doc. No. 25). The board, Freuh, Willamowski, Cheney, and Rex, and
Hardesty filed memoranda in opposition to petitioners’ motion for judgment on the
pleadings on May 5 and 10, 2021, respectively. (Doc. Nos. 28, 30).
{¶5} Following Hardesty’s primary election to be a candidate for mayor in
the November 2, 2021 general election, the trial court concluded that petitioners’
complaint for a writ of prohibition requesting that the trial court prevent the board
from including Hardesty on the May 4, 2021 primary-election ballot was rendered
moot. (See Doc. No. 47). Consequently, after being granted leave by the trial court,
petitioners filed a third amended complaint on June 15, 2021 in the trial court. (Doc.
Nos. 34, 41, 42). The third amended complaint specifically requested that the trial
court prevent the board from including Hardesty on the November 2, 2021 general-
election ballot. Hardesty filed an answer on June 16, 2021. (Doc. No. 43). On June
17, 2021, the board, Freuh, Willamowski, Cheney, and Rex filed a motion to dismiss
the third amended complaint along with an answer. (Doc. No. 44). On June 21,
2021, Hardesty filed a motion to dismiss the third amended complaint. (Doc. No.
45).
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{¶6} On June 30, 2021, treating the parties’ motions to dismiss as motions
for summary judgment, the trial court denied petitioners’ complaint for a writ of
prohibition and granted summary judgment in favor of respondents.4 (Doc. No. 47).
{¶7} Petitioners filed a notice of appeal on July 8, 2021. (Doc. No. 49). They
raise one assignment of error.
Assignment of Error
The Trial Court erred in finding that Elizabeth Hardesty was a
resident of the City of Lima for six months before the filing
deadline for the 2021 primary election, and therefore qualified as
a candidate for Mayor of the City of Lima, even though she
repeatedly referred to Houston, Texas as her home.
{¶8} In their sole assignment of error, petitioners argue that the trial court
erred by denying their complaint for a writ of prohibition and by granting summary
judgment in favor of respondents after concluding that Hardesty was a resident of
Lima for at least six months before the date on which nominating petitions could be
filed in accordance with Section 72 of the City of Lima Charter.
Standard of Review
{¶9} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). “De novo review is independent and
4
Because the trial court set forth the rights and responsibilities of the parties in its discussion of the
petitioners’ request for relief in prohibition, the trial court essentially resolved the petitioners’ claim for
declaratory judgment. See Am. Modern Home Ins. Co. v. Hagopian, 3d Dist. Crawford No. 3-02-23, 2003-
Ohio-342, ¶ 7 (noting that “the filing of a motion for summary judgment in a declaratory judgment action is
not a good practice because it does not resolve the issues before the trial court” but when a trial court sets
forth “the rights and responsibilities of the parties in its denial of summary judgment[, it] essentially
resolve[s] the complaint for declaratory judgment”).
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without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.
Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S.
Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary
judgment is proper where there is no genuine issue of material fact, the moving party
is entitled to judgment as a matter of law, and reasonable minds can reach but one
conclusion when viewing the evidence in favor of the non-moving party, and the
conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels
v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
{¶10} “The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of material
fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing
Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is
not required to produce any affirmative evidence, but must identify those portions
of the record which affirmatively support his argument.” Id., citing Dresher at 292.
“The nonmoving party must then rebut with specific facts showing the existence of
a genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).
Analysis
{¶11} Petitioners argue that the trial court erred by granting summary
judgment in favor of respondents and argue that they are entitled to relief in
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prohibition because the board lacks the authority to include Hardesty on the
November 2, 2021 general-election ballot. In other words, petitioners contend that
genuine issues of material fact remain whether the board disregarded applicable law
by concluding that Hardesty was a resident of Lima for at least six months before
the date on which nominating petitions could be filed in accordance with Section 72
of the City of Lima Charter.
{¶12} To be entitled to a writ of prohibition, petitioners must prove that the
board exercised quasi-judicial power, that it lacked the authority to do so, and that
they lack an adequate remedy in the ordinary course of the law. State ex rel. Keith
v. Lawrence Cty. Bd. of Elections, 159 Ohio St.3d 128, 2019-Ohio-4766, ¶ 5.
{¶13} As an initial matter, respondents rely on R.C. 3513.05 to contend that
the board is without authority to invalidate Hardesty’s petition and remove her name
from the general-election ballot. However, because Lima’s mayoral candidates
appear on a nonpartisan ballot, R.C. 3513.05 is not applicable here. See Webb v.
Lucas Cty. Bd. of Elections, 195 Ohio App.3d 396, 2011-Ohio-4576, ¶ 18 (6th Dist.)
(“However, R.C. 3513.05 provides a protest procedure for declarations of
candidacy. As we have stated, Webb did not file a declaration of candidacy. Thus,
R.C. 3513.05 is inapplicable.”). Instead, when a candidate files a nominating
petition, R.C. 3513.262 and 3513.263 provide the procedure to challenge the
validity of that candidacy in a primary and general election. See Foster v. Cuyahoga
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Cty. Bd. of Elections, 53 Ohio App.2d 213, 221 (8th Dist.1977). See also State ex
rel. Gamble v. Franklin Cty. Bd. of Elections, 10th Dist. Franklin No. 01AP-1235,
2002-Ohio-2708, ¶ 21-23. In other words, unlike R.C. 3513.05, the General
Assembly choose to provide a protest procedure under 3513.262 and 3513.263,
which permits protests prior to a nonpartisan primary and nonpartisan general
election. Compare State ex rel. Klein v. Cuyahoga Cty. Bd. of Elections, 102 Ohio
App.3d 124, 127-128 (8th Dist.1995) (“The absence of a means to protest a
candidate’s qualifications after the primary election [under R.C. 3513.05] evinces
the legislative intent that events simultaneous with or subsequent to the election are
not grounds for protesting and disqualifying a candidate.”). Consequently, (based
on the facts and circumstances presented) petitioners’ protest is not moot. See State
ex rel. Holwadel v. Hamilton Cty. Bd. of Elections, 144 Ohio St.3d 579, 2015-Ohio-
5306, ¶ 41 (agreeing “that it would be futile to require them to file a new challenge
with the board based on exactly the same facts”), citing State ex rel. Cotterman v.
St. Marys Foundry, 46 Ohio St.3d 42, 44 (1989) (concluding that “a person need
not pursue administrative remedies if such an act would be futile”).
{¶14} Turning to petitioners’ request for relief in prohibition, we initially
conclude that there is no genuine issue of material fact that petitioners lack an
adequate remedy due to the proximity of the November 2, 2021 general election.
See State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462,
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2009-Ohio-3657, ¶ 21. Furthermore, there is no genuine issue of material fact that
the board exercised quasi-judicial power (which the parties do not dispute) since the
board denied petitioners’ protest following a hearing, that included sworn
testimony, conducted under R.C. 3501.39. See State ex rel. Tam O’Shanter Co. v.
Stark Cty. Bd. of Elections, 151 Ohio St.3d 134, 2017-Ohio-8167, ¶ 15. See also
State ex rel. Miller v. Hamilton Cty. Bd. of Elections, ___ Ohio St.3d ___, 2021-
Ohio-831, ¶ 21 (“‘Quasi-judicial authority is the power to hear and determine
controversies between the public and individuals that require a hearing resembling
a judicial trial.’”), quoting State ex rel. Wright v. Ohio Bur. of Motor Vehicles, 87
Ohio St.3d 184, 186 (1999).
{¶15} For the remaining requirement for the requested writ of prohibition,
“‘[i]n extraordinary actions challenging the decisions of * * * boards of elections,
the standard is whether [the board] engaged in fraud, corruption, or abuse of
discretion, or acted in clear disregard of applicable legal provisions.’” State ex rel.
Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, ¶ 9, quoting Whitman v.
Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, ¶ 11. See also
State ex rel. Phillips, v. Lorain Cty. Bd. of Elections, 62 Ohio St.3d 214, 217 (1991)
(“R.C. 3513.262 declares that the board’s decisions on protests to nominating
petitions are final; however, we shall set aside such decisions for fraud, corruption,
abuse of discretion, or clear disregard of statutes or applicable legal provisions.”).
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“A board abuses its discretion when it acts in an unreasonable, arbitrary, or
unconscionable fashion.” State ex rel. O’Neill v. Athens Cty. Bd. of Elections, 160
Ohio St.3d 128, 2020-Ohio-1476, ¶ 11.
{¶16} Here, the trial court granted summary judgment in favor of
respondents after concluding that there is no genuine issue of material fact reflecting
that that the board abused its discretion or disregarded Section 72 of the City of
Lima Charter by denying petitioners’ protest to Hardesty’s candidacy.
{¶17} Section 72 of the City of Lima Charter sets forth the specific residency
requirements for elected officers of Lima. The charter provides, in its relevant part,
that
“all elected officers of the City of Lima shall be residents and electors
of the City for at least six (6) months before the last date on which
nominating petitions can be filed in accordance with this Charter * *
* .”
Section 72(A), Lima City Charter.
{¶18} Importantly, the charter does not define the term “resident,” and its
meaning is unclear and ambiguous. See Sherwin-Williams Co. v. Dayton Freight
Lines, Inc., 112 Ohio St.3d 52, 2006-Ohio-6498, ¶ 15. Consequently, the issue in
this case amounts to a linguistic dispute over the meaning of the term “resident” as
it is used in the City of Lima Charter. Petitioners advance a narrow view of the
meaning of the term and claim that the board clearly disregarded Section 72 of the
City of Lima Charter, asserting that the charter “requires one to live in Lima, for six
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months, not hope or intend to live in Lima.” (Emphasis added.) (Appellant’s Brief
at 8). Respondents disagree and contend that the board did not abuse its discretion
or clearly disregard applicable law because an elected officer’s residency under
Section 72 of the City of Lima Charter can be interpreted more broadly under R.C.
3503.02.
{¶19} “‘“County boards of elections are of statutory creation, and the
members thereof in the performance of their duties must comply with applicable
statutory requirements.”’” Husted, 123 Ohio St.3d 208, 2009-Ohio-5327, at ¶ 11,
quoting Whitman at ¶ 12, quoting State ex rel. Babcock v. Perkins, 165 Ohio St. 185,
187 (1956). In the furtherance of those duties, the Supreme Court of Ohio has
“implicitly recognized a board of elections’ right to determine” the meaning of
statutory-qualification requirements. See State ex rel. Emhoff v. Medina Cty. Bd. of
Elections, 153 Ohio St.3d 313, 2018-Ohio-1660, ¶ 19, citing State ex rel. Kelly v.
Cuyahoga Cty. Bd. of Elections, 70 Ohio St.3d 413, 415 (1994).
{¶20} “In construing charter provisions, we apply general laws regarding
statutory interpretation, including construing charter language according to its
ordinary and common usage.” (Citation omitted.) State ex rel. Beard v. Hardin,
153 Ohio St.3d 571, 2018-Ohio-1286, ¶ 27. See also Vossman v. AirNet Sys., Inc.,
159 Ohio St.3d 529, 2020-Ohio-872, ¶ 14 (“Generally, we read undefined terms as
having their plain and ordinary meaning.”); R.C. 1.49. “If words have acquired a
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particular meaning, though, we construe them accordingly.” Vossman at ¶ 14, citing
R.C. 1.42. Furthermore, “we do not simply consider words in isolation, but consider
the text as a whole.” Miller, ___ Ohio St.3d ___, 2021-Ohio-831, at ¶ 33.
{¶21} Construing the plain and ordinary meaning of the term, however, does
not provide us with a resolution. Indeed, the legal definition of a “resident” is
“[s]omeone who lives permanently in a particular place”—that is, “a person who
has established a domicile in a given jurisdiction,” or “[s]omeone who has a home
in a particular place.” Black’s Law Dictionary (11th Ed.2019). Under the latter
meaning, “a resident is not necessarily either a citizen or a domiciliary.” Id.{¶22} In other words, the plain and ordinary legal meaning of the term
captures the core disagreement of this case. Specifically, “[b]ecause ‘domicile’ and
‘residence’ are usually in the same place, [the terms] are frequently used as if they
had the same meaning.” (Citation omitted.) Schill v. Cincinnati Ins. Co., 141 Ohio
St.3d 382, 2014-Ohio-4527, ¶ 25. “‘Domicile,’ however, means living in a locality
with intent to make it a fixed and permanent home, while ‘residence’ simply
requires bodily presence as an inhabitant in a given place.” Id. In sum, “[a] person
can have a residence that is not his or her domicile,” and, “[t]hus, a person can have
multiple residences, but can have only one domicile.” Id. at ¶ 24-25.
{¶23} Thus, to properly construe the intent of the charter, another
“fundamental rule of statutory construction [is] that statutes relating to the same
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subject matter should be construed together.” State ex rel. Thurn v. Cuyahoga Cty.
Bd. of Elections, 72 Ohio St.3d 289, 294 (1995). “The in pari materia rule of
construction may be used in interpreting statutes where some doubt or ambiguity
exists.” State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 585 (1995). “In
reading statutes in pari materia and construing them together, this court must give a
reasonable construction that provides the proper effect to each statute.” (Citation
omitted.) Hulsmeyer v. Hospice of Southwest Ohio, Inc., 142 Ohio St.3d 236, 2014-
Ohio-5511, ¶ 22.
{¶24} Here, the charter requirement should be read in pari materia with R.C.
3503.02. Accord Finkbeiner, 122 Ohio St.3d 462, 2009-Ohio-3657, at ¶ 38 (noting
that the “charter requirement should be construed in pari materia with other
requirements, including the applicable statutory requirements, like the election-
falsification statement required by R.C. 3501.38(J) and incorporated by Section 11
of the Toledo Charter”). See also O’Neill, 160 Ohio St.3d 128, 2020-Ohio-1476, at
¶ 13 (“We read Article II, Section 3 [of the Ohio Constitution] in pari materia with
R.C. 3503.02, which provides rules for determining the residence of a person
offering to register or vote.”).
{¶25} R.C. 3503.02, which pertains to the same subject matter and sets forth
the rules for determining residence, provides, in its relevant part:
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(A) That place shall be considered the residence of a person in which
the person’s habitation is fixed and to which, whenever the person is
absent, the person has the intention of returning.
(B) A person shall not be considered to have lost the person’s
residence who leaves the person’s home and goes into another state or
county of this state, for temporary purposes only, with the intention
of returning.
(C) A person shall not be considered to have gained a residence in
any county of this state into which the person comes for temporary
purposes only, without the intention of making such county the
permanent place of abode.
(D) The place where the family of a married person resides shall be
considered to be the person’s place of residence; except that when the
spouses have separated and live apart, the place where such a spouse
resides the length of time required to entitle a person to vote shall be
considered to be the spouse’s place of residence.
(E) If a person removes to another state with the intention of making
such state the person’s residence, the person shall be considered to
have lost the person’s residence in this state.
(F) Except as otherwise provided in division (G) of this section, if a
person removes from this state and continuously resides outside this
state for a period of four years or more, the person shall be considered
to have lost the person’s residence in this state, notwithstanding the
fact that the person may entertain an intention to return at some future
period.
(G)(1) If a person removes from this state to engage in the services of
the United States government, the person shall not be considered to
have lost the person’s residence in this state, and likewise should the
person enter the employment of the state, the place where such person
resided at the time of the person’s removal shall be considered to be
the person’s place of residence.
(G)(2) If a person removes from this state to a location outside of the
United States and the person does not become a resident of another
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state, the person shall not be considered to have lost the person’s
residence in this state. The place where the person resided at the time
of the person’s removal shall be considered to be the person’s place
of residence.
***
(H) If a person goes into another state and while there exercises the
right of a citizen by voting, the person shall be considered to have lost
the person’s residence in this state.
See also State ex rel. Morris v. Stark Cty. Bd. of Elections, 143 Ohio St.3d 507,
2015-Ohio-3659, ¶ 23 (“In election cases involving candidate-residence issues, this
court applies R.C. 3503.02.”).
{¶26} Furthermore, “[m]unicipal charters must be construed to give effect to
all separate provisions and to harmonize them with statutory provisions whenever
possible.” (Emphasis added.) State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d
472, 477 (2002). “Therefore, ‘“[i]n the absence of express language in a charter
demonstrating a conflict with a statute, it is the duty of courts to harmonize the
provisions of the charter and statutes relating to the same matter.”’” Finkbeiner at
¶ 31, quoting State ex rel. N. Olmsted v. Cuyahoga Cty. Bd. of Elections, 93 Ohio
St.3d 529, 533 (2001), quoting State ex rel. Ryant Commt. v. Lorain Cty. Bd. of
Elections, 86 Ohio St.3d 107, 112 (1999).
{¶27} Based on the absence of express language in the charter demonstrating
a conflict with the statute, R.C. 3503.02 is applicable to determining an elected
officer’s residence under Section 72 of the City of Lima Charter. See State ex rel.
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Fritz v. Trumbull Cty. Bd. of Elections, ___ Ohio St.3d ___, 2021-Ohio-1828, ¶ 18.
Likewise, statues (similar to R.C. 3503.02) are incorporated by reference into the
charter by Section 15, which states that “the provisions of the general election laws
of the State shall apply to all such elections except as provision is otherwise made
by this Charter or by council ordinance not in conflict with this Charter.” Section
15, Lima City Charter. Accord Finkbeiner at ¶ 33. See also Miller, ___ Ohio St.3d
___, 2021-Ohio-831, at ¶ 32. Therefore, construing R.C. 3503.02 in pari materia
with Section 72 of the City of Lima Charter, we conclude that the board did not
abuse its discretion or clearly disregard the applicable law by turning to Ohio’s
general election laws—R.C. 3503.02 in this case—to harmonize the meaning of the
term “resident” under the charter with the Revised Code since provision for the
meaning of the term “resident” is not “otherwise made” by the charter. See
Finkbeiner at ¶ 34
{¶28} Furthermore, based on our de novo review of the record, we conclude
that there is no genuine issue of material fact that Hardesty was a resident of Lima
for at least six months before the last date on which nominating petitions could be
filed in accordance with Section 72 of the City of Lima Charter. Here, Hardesty
contends that she is a resident of Lima by virtue of R.C. 3503.02(A), (B), or (C),
while petitioners assert that she “lost [her] residence” in this state” under
3503.02(E). (Doc. No. 42).
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{¶29} Important to this case, the board conducted a hearing on March 4, 2021
at which Hardesty presented the only sworn testimony. Hardesty testified that she
has been outside of Lima and away from her home in Lima only due to her
employment as a geologist. (Mar. 4, 2021 Tr. at 45). (See also Doc. No. 26, Ex.
A). Nevertheless, she presented uncontroverted evidence that it is her intention to
return to her home in Lima. (Doc. No. 26, Ex. A). Moreover, Hardesty presented
unequivocal evidence that she has maintained her status as an elector in Allen
County and has voted either in person or absentee “in every single election.” (Mar.
4, 2021 Tr. at 34-35, 40, 49, 55); (Doc. No. 26, Ex. A). Even though she testified
that she has a Pennsylvania driver’s license and that her vehicle is registered in the
State of Texas, she testified that she maintains bank accounts and a safety-deposit
box in Lima, and she presented evidence that she receives mail at her residential
address in Lima. (Id. at 29-31, 37); (Id.).
{¶30} In response to the evidence presented by Hardesty, petitioners relied
on evidence which they asserted bolstered their claim that Hardesty lost her
residence in Lima under R.C. 3503.02(E). Specifically, in addition to the driver’s
license and vehicle-registration evidence, petitioners submitted evidence that
Hardesty formed two companies in Texas and evidence from Hardesty’s social-
media accounts that they claimed demonstrated that she forfeited her residence in
Lima. (Doc. No. 26, Exs. 1, 2). Additionally, petitioners alleged (without
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submitting any evidence to the board) that Hardesty did not file a municipal income
tax return to Lima during the time she claimed to be a resident. Compare State ex
rel. Herdman v. Franklin Cty. Bd. of Elections, 67 Ohio St.3d 593, 594-596, (1993)
(suggesting that evidence of the payment of municipal income can constitute
evidence of residence).
{¶31} Based on the evidence presented, the board concluded that Hardesty
was a resident of Lima for at least six months before the last date on which the
nominating petitions could be filed in accordance with Section 72 of the City of
Lima Charter.
{¶32} Importantly, “[b]oards of elections are obligated to weigh evidence of
a candidate’s qualifications, and courts should not substitute their judgment for that
of the board.” Kelly, 70 Ohio St.3d at 414. See also State ex rel. Stine v. Brown
Cty. Bd. of Elections, 101 Ohio St.3d 252, 2004-Ohio-771, ¶ 21 (“‘“We will not
substitute our judgment for that of a board of elections if there is conflicting
evidence on an issue.”’”), quoting State ex rel. Commt. for the Referendum of Lorain
Ord. No. 77-01, 96 Ohio St.3d 308, 2002-Ohio-4194, ¶ 47, quoting State ex rel.
Wolfe v. Delaware Cty. Bd. of Elections, 88 Ohio St.3d 182, 185 (2000). Indeed,
the Supreme Court of Ohio has held that “[t]here is no abuse of discretion when the
board reaches its decision based on substantial though conflicting evidence.” State
ex rel. Clinard v. Greene Cty. Bd. of Elections, 51 Ohio St.3d 87, 88 (1990).
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{¶33} Moreover, “[t]he mere fact that the ordinary meaning of the provisions
of the applicable statutes may give a particular individual a choice of more than one
place as his voting residence is no reason for determining that those statutes should
be so construed as not to permit that.” State ex rel. Klink v. Eyrich, 157 Ohio St.
338, 344 (1952) (Taft, J., concurring). Construing R.C. 3503.02, the Supreme Court
of Ohio has noted that “‘[t]he rules which the General Assembly specified were
apparently intended to enable an individual in such a situation to select as his
residence some place which fairly conformed with one or more of the several rules
specified, even though it might not conform with some of the other rules so specified
or might not be his domicile.’” Husted, 123 Ohio St.3d 288, 2009-Ohio-5327, at ¶
27, quoting Klink at 344 (Taft, J., concurring). Consequently, the court has held
that, “when the applicability of multiple sections [of R.C. 3503.02] leads to
conflicting results, * * * great weight must be accorded to the person’s claimed
voting residence.” Id.{¶34} At the outset, even though the parties do not dispute that Hardesty is
an elector in accordance with the charter, that concord is not dispositive of
Hardesty’s residence. Compare O’Neill, 160 Ohio St.3d 128, 2020-Ohio-1476, at
¶ 21 (noting that “registration for voting * * * is not one of the factors for
determining the place of an elector’s residence under R.C. 3503.02” because “the
primary purpose of that statute [is] to ‘determin[e] the residence of a person offering
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to register or vote’ [and i]t may be presumed that a person offering to register at a
new home might, at that time, remain registered at a previous home”). Nevertheless,
the board did not abuse its discretion or clearly disregard Section 72 of the City of
Lima Charter or R.C. 3503.02 by concluding that Hardesty was a resident of Lima
for at least six months before the last date on which nominating petitions could be
filed in accordance with the charter. Specifically, even though Hardesty did not
“live” in Lima as petitioners suggest is required by the charter, Hardesty presented
unequivocal evidence that her Lima address is the place where her habitation is fixed
and to which, whenever she is absent, she has the intention of returning as described
under R.C. 3503.02(A). See State ex rel. Robinson-Bond v. Champaign Cty. Bd. of
Elections, 2d Dist. Champaign No. 2011-CA-21, 2011-Ohio-6127, ¶ 19.
{¶35} Addressing R.C. 3503.02, the Supreme Court of Ohio has “held that
the term ‘habitation,” as used in the statute, means a ‘“dwelling place; house, home,
[or] residence.”’” Holwadel, 144 Ohio St.3d 579, 2015-Ohio-5306, at ¶ 34, quoting
Kyser v. Bd. of Elections of Cuyahoga Cty., 36 Ohio St.2d 17, 21 (1973), quoting
Webster’s Third New International Dictionary. Specifically, with respect to R.C.
3503.02(A), the court noted that “[t]he statute ‘“emphasizes the person’s intent to
make a fixed or permanent place of abode.”’” (Emphasis added.) Morris, 143 Ohio
St.3d 507, 2015-Ohio-3659, at ¶ 23, quoting State ex rel. Ross v. Crawford Cty. Bd.
of Elections, 125 Ohio St.3d 438, 2010-Ohio-2167, ¶ 37, quoting State ex rel.
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Duncan v. Portage Cty. Bd. of Elections, 115 Ohio St.3d 405, 2007-Ohio-5346, ¶
11. However, the court expressly noted that it “did not have occasion to discuss
what, if anything, it means to say that one’s habitation is ‘fixed.’” Holwadel at ¶
34.
{¶36} Therefore, even assuming without deciding that the evidence
presented by petitioners constitutes conflicting evidence of Hardesty’s residence,
we cannot conclude that the board abused its discretion or clearly disregarded
Section 72 of the City of Lima Charter or R.C. 3503.02 by concluding that Hardesty
was a resident of Lima for at least six months before the last date on which
nominating petitions could be filed. See State ex rel. Bobovnyik v. Mahoning Cty.
Bd. of Elections, 161 Ohio St.3d 349, 2020-Ohio-4003, ¶ 15 (“R.C. 3503.02
‘emphasizes the person’s intent to make a place a fixed or permanent place of
abode.’”), quoting Duncan at ¶ 11. In other words, the record supports that the
board reached its conclusion (based on substantial evidence) that Hardesty intended
to make her Lima address her fixed or permanent place of abode as contemplated
by R.C. 3503.02(A). See O’Neill at ¶ 19-20; Husted, 123 Ohio St.3d 288, 2009-
Ohio-5327, at ¶ 31.
{¶37} Moreover, the record supports there was substantial evidence from
which the board could conclude that Hardesty did not lose her Lima residence when
she left the state for the temporary purpose of working as a geologist with the
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intention of returning when that employment ends. Compare Husted at ¶ 31 “(In
addition, Husted could not be considered to have lost his Montgomery County
residence when he left the county for the temporary purpose of working as a state
legislator in Franklin County with the intention of returning when that state service
ends.”), citing R.C. 3503.02(B). Likewise, there was substantial evidence from
which the board could conclude that Hardesty did not establish residence in another
state, which she entered for the temporary purpose of employment, without the
intention of making that state her fixed or permanent place of abode. Compare id.(“Nor could Husted be considered to have gained a residence in Franklin County,
which Husted entered for the temporary purpose of state employment only, without
the intention of making that county his permanent place of abode.”), citing R.C.
3503.02(C). Consequently, there is no genuine issue of material fact reflecting that
the board abused its discretion or clearly disregarded the applicable law. See Kelly,
70 Ohio St.3d at 414.
{¶38} Because there is no genuine issue of material fact reflecting that the
board abused its discretion or clearly disregarded the applicable law, there is no
genuine issue of material fact reflecting that petitioners are entitled to relief in
prohibition. Thus, the trial court properly granted summary judgment in favor of
respondents.
{¶39} Petitioners’ assignment of error is overruled.
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{¶40} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN, J., MILLER, J. and SHAW, J. and concur.
/jlr
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