ORIGINAL

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ex relDENNIS J. VARNAU,

Plaintiff/Appellee,

vs.

DWAYNE WENNINGER,

Defendant/Appellant.

SUPREME CT. CASE NO. 10-1655

On Appeal from the BrownCounty Court of Appeals,Twelfth Appellate District

Court of AppealsCase No. CA 2009-02-10

MERIT BRIEF OFAPPELLANT STATE OF OHIO ex rel DENNIS J. VARNAU

THOMAS G. EAGLECO., L.P.A.

3386 N. State At. 123Lebanon, Ohio 45036Phone (937) 743-2545Fax (937) 704-9826

Thomas G. Eagle (0034492) (COUNSEL OF RECORD)THOMAS G. EAGLE CO., L.P.A.3386 N. State Rt. 123Lebanon, Ohio 45036Phone: (937) 743-2545Fax: (937) 704-9826Email: eaglelawoffice@cs.com

COUNSEL FOR APPELLANT, STATE OF OHIO ex rel DENNIS J. VARNAU

Patrick L. Gregory (#0001147)717 W. PlaneBethel, Ohio 45106Phone: (513) 734-0950Fax (513) 734-0958

COUNSEL FOR APPELLEE, DWAYNE WENNINGER

Gary A. Rosenhoffer (#0003276)302 E. Main St.Batavia, Ohio 45103Phone: (513) 732-0300Fax (513) 732-0648

COUNSEL FOR APPELLEE, DWAYNE WENNINGER

NOV 3 ^J 2^11

CLERK OF T^ ^R-'

TABLE OF CONTENTS

Pa¢e

TABLE OF AUTHORITIES ........... .................................................................... ii

STATEMENT OF FACTS . ................................................................................ 1

ARGUMENT ................................................................................................. 4

Proposition of Law No. I:

A Court cannot grant summary judgment in a post-election quowarranto action based on an unproven and disputed presumptionin favor of a moving party that a board of elections conductedan investigation of a candidate's qualifications for that office ............... 4

Proposition of Law No. II:

A board of elections' placing a candidate on a ballot doesnot establish the candidate's legal qualifications for the officethat is binding in a later action in quo warranto to challengethe candidate's legal qualifications to hold the office ........................... 11

Proposition of Law No. III:

Allowing action by a board of elections in placing a candidateon a ballot to preclude a candidate who had no right to protestthat action or to participate in a protest from challenging theofficeholder's qualifications is unconstitutional ................................. 17

Proposition of Law No. IV:

An opposing qualified candidate for the office of county Sheriffis entitled to a writ of quo warranto where the elected candidatepurported to meet the minimum statutory educational require-ments for the office by attendance at an institution that at thetime was not accredited by the Ohio Board of Regents ........................ 18

Proposition of Law No. V:

An opposing qualified candidate for the office of county Sheriffis entitled to a writ of quo warranto where the elected candi-date had a statutory "break in service" of four or more yearswhich cancels his Ohio Peace Officer TrainingAcademy (OPOTA) certificate ........................,........................... 29

CONCLUSION ......................................................................................... 32

PROOF OF SERVICE ................................................................................. 33

APPENDIX: Appendix Page

Notice of Appeal to the Supreme Court ..................................................... 1

Judgment of Twelfth District Court of Appeals, August 16, 2010 ...................... 3

Entry, August 17, 2010 ................................................ 9

CONSTITUTIONAL PROVISIONS; STATUTES:

U.S. Const., Art. I, Sections 1, 9 ............................................................ 10

U.S. Const., Fourteenth Amendment .......................................................... 13

Ohio Const., Art. I, Section 2 ..................................................................... 15

Ohio Const., Art. I, Section 16 .........................:...................................... 16

Ohio Const. Art. II, Section 28 ..........:..............:................................... 17

Ohio Const., Art. IV, Section 2 ............................................................ 18

O. R. C. 305.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . 19

O.R.C. 311.01 .................................................................................... 21

O.R.C. 731.32 ................:............................... ............ ........................ 25

O.R.C. 2733.03 .......................................... .........:.............. ...... .......... 28

O.R.C. 2733.06 ..................... ........................ ......... ........................... 30

O.R.C. 2733.14 ..................................................................................... 32

O.R.C. 3501.39(B) ................................................ ............ ... ...... ..... ...... 33

O.R.C. 3513.05 ........................................................................... ... ..... 34

O.R.C. 3513.07 .......................................... .................................:..... 51

ii

O.R.C. 3 513.262 . . . . . . . . . . . . . . . . . . . .. ... ... ... .. . . . . ... . . . ... . . . . .. . . . ... . . . .. . ... . . .. . . . . . . . . .... 53

O.R.C. 3513.263 .......................................... ............ ......... .................... 55

O.R.C. 3599.36 .............................. .......................................... ............ 56

RULES & REGULATIONS:

O.A.C. 109:2-1-12 .................................................................. ... ... ...... 58

O.A.C. 3333-1-04(C) ......................................................:........ ............ 61

O.A.C. 3333-1-08 ............................................................................... 63

Ohio R. Civ. P. 56 ............................................................................... 74

TABLE OF AUTHORITIES

CASES: Page

AAAA Enterprises, Inc. v. River Place Community UrbanRedevelopment Corp. (1990), 50 Ohio St.3d 157 ...................................................... 6

Adams v. Linn (Ohio App. 1936), 22 Ohio Law Abs. 34 ............................................ 7

Alternatives Unlimited-Special, Inc. vs. Ohio Department ofEducation, 168 Ohio App. 3d. 592, 2006-Ohio-4779 ................................................ 11

Armour Co. v. Yoder (1931), 40 Ohio App. 225 ...................................................... 7

Bank One, N.A. v. PIC Photo Finish, Inc., 2006-Ohio-5308 ....................................... 20

Barnhart v. Peabody Coal Co. (2003), 537 U.S. 149 .:.:::..................:......:................. 20

Bonacorsi vs. Wheeling & Lake Erie Railway Co., 95 Ohio St. 3d 314,2002-Ohio-2220 ... .. . ... . . . . . . . . . ... ... . . . .. . ... ... ... .. . . . . ... . . . . . . . . . .. . . . . . . . .. . . . . .. . . . . . . . . . .... . . . .. 5

Brennaman vs. R.M.I. Co. (1994), 70 Ohio St.3d 460 ............................................... 18

Cseipes v. Cleveland Catholic Diocese (1996), 109 Ohio App.3d 533 ............................ 11

Davis v. Loopco Industries, Inc. (1993), 66 Ohio St.3d 64 ........................................... 6

Direct Plumbing Supply Co. vs. Dayton (1941), 138 Ohio St. 540 ................................ 17

iii

Dresher v. Burt (1996), 75 Ohio St.3d 280 ............................................................. 6

Foster vs. Cuyahoga Cty. Board of Elections (1977),53 Ohio App.2d 213 .................................................................................... 13

Gaines vs. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54 ........................................ 17

Glidden Co. vs. Lumberman's Mutual, 112 Ohio St. 3d. 470, 2006-Ohio-6553 ................ 11

Grafton vs. Ohio Edison Co. (1996), 77 Ohio St.3d 102 ............................................. 5

Hardy vs. VerMeulen (1987), 32 Ohio St.3d 45 ...................................................... 17

In Re Burton, 160 Ohio App. 3d. 750, 2005-Ohio-220 ............................................. 11

Kalk vs. Woodme (1985), 27 Ohio App. 3d. 145 .................................................... 12

Killiliea v. Sears Roebuck & Co. (1986),27 Ohio App.3d 163 ..................................... 6

Koos vs. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579 .................................... 5

Leibreich v. A. J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266 .................................... 6

Maust vs. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103 ................................. 5

Maust v. Palmer (1994), 94 Ohio App.3d 764, 769 ................................................... 11

MCI Telecommunications Corp. vs. Pub. Util. Comm. ( 1988),38 Ohio St.3d 266 .......................................................................................... 5

Mominee vs. Scherbarth (1986), 28 Ohio St.3d 270 ................................................. 17

Monastra v. D'Amore (1996), 111 Ohio App.3d 296 .:.............................................. 11

Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356 ................................................... 6

Olszowy v. Cleveland Railway Co. (1934), 47 Ohio App. 529 ....................................... 7

People ex rel. Norfleet v. Staton (1875), 73 N.C. 546 ............................................... 16

Sethi v. WFMJ Television (1999), 134 Ohio App.3d 796 ............................................. 7

Schoemaeker vs. First National Bank (1981), 66 Ohio St. 2d. 304 ................................ 12

State ex rel. Baran v. Fuerst (1992), 65 Ohio St.3d 413 ................................................ 6

iv

State ex rel. Battlin vs. Bush ( 1988), 40 Ohio St.3d 236 ....................................... 15,28

State ex rel. Cain v. Kay (1974), 38 Ohio St.2d 15 .............................................. 15,28

State ex rel. Carr v. Cu yahoga Cty. Bd. of Elections (1992)63 Ohio St.3d 136 ......................................................................................... 14

State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd.of Elections (1992), 65 Ohio St.3d 167 ................................................................ 21

State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. ofElections (1997), 80 Ohio St.3d 302 ..................................................................... 8

State ex rel. Cordray vs. Marshall, 123 Ohio St.3d 229, 2009-Ohio 4986 ......................... 13

State ex rel. Fisher v. Brown (1972), 32 Ohio St.2d 23 .............................................. 12

State ex rel. Flynn v. Board of Elections of Cuyahoga County(1955), 164 Ohio St.,193 ......................................................................... 8, 9, 12

State ex rel. Hayburn v. Kiefer (1993), 68 Ohio St.3d 132 .......................................:.. 31

State ex rel. Hogan v. Hunt (1911), 84 Ohio St. 143 ........................................... 15,28

State ex rel. Huron Cty. Prosecutor v. Westerhold, 72 Ohio St.3d 392,1995-Ohio-86 . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . .. . . . . ...... . . . . . ... . . . ... . . . ... . . . . .. . . . . . . . . . . .. . . .. 16

State ex rel. Kelly vs. Cuyahoga Cty. Bd. of Elections (1994),70 Ohio St.3d 413 ........................................................................................ 14

State ex rel. Knowlton vs. Noble Cty. Board of Elections,125 Ohio St.3d 82, 2010-Ohio-1115 .............................................................. 13,27

State ex rel. Lindley v. The Maccabees (1924), 109 Ohio St: 454 :::.::....::.....:.............. 15

State ex rel. Maxwell v. Schneider (1921), 103 Ohio St. 492 ...................................... 15

State ex. rel. OATL vs. Sheward (1998), 86 Ohio St.3d 451 ....................................... 18

State ex rel. Purola v. Cable (1976), 48 Ohio St.2d 239 ............................................ 16

State ex rel. St. Sara Serbian Orthodox Church v. Riley(1973), 36 Ohio St.2d 171 ........................................................................... 15,28

State ex rel. Schenck vs. Shattuck (1982), 1 Ohio S).3d 272 ........................................ 8

State ex rel. Shumate vs. Portage County Board of Elections(1992), 64 Ohio St.3d 12 ............................................................................ 9, 13

State ex rel. Snider vs. Sta leton (1992), 65 Ohio St.3d 40 ......................................... 28

State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960 ................. 20, 21. 26

State ex rel. Thum v. Cuyahoga Cty. Bd. of Elections(1995), 72 Ohio St.3d 289 ............................................................................... 21

State ex rel. Tilden v. Harbourt (1940), 70 Ohio App. 417 ......................................... 12

State ex rel. Trago v. Evans (1957), 166 Ohio St. 269 .............................................. 16

State ex rel. Vana v. Maple. Hts. City Council (1990), 54 Ohio St.3d 91 ...................... 4, 29

State ex rel. Williams v. Board of Elections of Trumbull Cty.(1963), 175 Ohio St. 253 .................................................................................. 8

State ex rel. Williams v. Zaleski, Lorain App. No. 3364,unreported, affd sub nom State ex rel Williams vs. Zaleski(1984), 12 Ohio St.3d 109 ................................................................................ 16

State ex rel Williamson v. Cuyahoga Cty. Bd. of Elections(1984), 11 Ohio St.3d 90 .............................................................................. 3,29

State ex rel. Wilson v. Hisrich (1994), 69 Ohio St.3d 13 ............................................ 21

State ex rel. Wolfe v. Delaware Cty. Bd. of Elections,88 Ohio St.3d 182, 2000-Ohio-294 ...............................................:............... 19,24

State ex rel. Wolfe v. Lorain County Bd. of Elections(1978), 59 Ohio App.2d 257 ............................................................................. 12

State v. Staten, (1971) 25 Ohio St.2d at 110 .......................................................... 16

State vs. WenninQer, 125 Ohio Misc.2d 55, 2003-Ohio-5521 ................................... 2, 21

Stegawski vs. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78 .................... 19

Vahila v. Hall (1997), 77 Ohio St.3d 421 ............................................................... 6

Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7 .......................................... 6

Wampler vs. Higgins (2001), 93 Ohio St.3d 111 ...................................................... 5

vi

Welco Industries, Inc. vs. Applied Co.'s (1993), 67 Ohio St.3d 344 ................................ 6

Wellington vs. Mahoning Cty. Bd. of Elections,117 Ohio St.3d 143, 2008-Ohio-554 ................................................................... 28

Wooten v. Columbus Division of Water (1993), 91 Ohio App.3d 326 ............................ 11

CONSTITUTIONAL PROVISIONS, STATUTES:

U.S. Const., Art. I, Sections 1, 9 ........................:................:............................. 31

U.S. Const., Fourteenth Amendment .................................................................. 17

Ohio Const., Art. IV, Sections 2 ...................................................................... 15

Ohio Const., Art. IV, Sections 3 ...................................................................... 15

Ohio Const., Art. I, Section 2 ......................................................................... 17

Ohio Const., Art. I, Section 16 ......................................................................... 17

Ohio Const. Art. II, Section 28 ......................................................................... 31

O.R.C. 305.03 ....................... ... .................................................................:. 16

O.R.C. 311.01 ......................................................................... 1,2, 19,20,21,22

O.R.C. 311.01(B) ................................................ 1, 9, 14, 19, 21, 23, 24, 26, 28, 31, 32

O.R.C. 311.01(C) ......................................... ...... ............ ............ ................. 14

O.R.C. 731.32 ............................................ ....................:..................:.... .... 21

O.R.C. 2733.03 .......:....................................................... ..:... ....................... 15

O.R.C. 2733.06 . . . . . . . . . . . . . . . ... ... . .. . . . . . . .. ........ . . ... . . . .. . . . . . .. . . . . .. . . . .. . . . . .. . . . . . . . .. . . . . . . ... 32

O.R.C. 2733.14 ................................................................................... 15, 28, 32

O.R.C. 3501.39(B) ....................................... .................................... ............. 9

O.R.C. 3513.05 ..................................................................................... 9, 14, 18

O.R.C. 3513.07 ............. ............................................................................... 12

O.R.C. 3513.262 ........................................................................................ 13, 14

vii

O.R.C. 3513.263 ..................................................................................... 10, 14

O.R.C. 3599.36 ............................................................. . ............................ 21

RULES & REGULATIONS:

O.A.C. 109:2-1-12-(D) & (E) (2001-05) .............................:................................. 2

O.A.C. 109:2-1-12 ........................................................................... 2, 26, 30, 31

O.A.C. 3333-1-04(C) ..................................................................... .............. .. 25

O.A.C. 3333-01-08 ...... ....................................... ................................. ......... 25

Ohio R. Civ. P. 56 ....:.................................................................................... 5

viii

STATEMENT OF FACTS

Appellee Wenninger was a candidate for Brown County Sheriff in 2000, won the

election, assumed the position January 1, 2001, and appointed himself as Sheriff with the Ohio

Peace Officers Training Commission (OPOTC) as of that date. (Relator's Exhibits in Support of

Motion for Summary Judgment, filed August 10, 2009, Ex. 2A, pp. 2-3, Wenninger's SF400adm

Sheriff Appointment with OPOTC, January 1, 2001). He could not be a valid candidate for

Sheriff unless he met all the requirements under O.R.C. § 311.01(B), specifically (9)(a) and (b),

in effect at the time. O.R.C. § 311.01. Wenninger was not, prior to that, a corporal or higher

with an approved agency, therefore not in compliance with O.R.C. § 311.01(B)(9)(a): (Relator's

Exhibits, August 10, 2009, Ex. 6B, Wenninger's Answer to Int. No. 15).

Wenninger also did not satisfy § 311.01(B)(9)(b) because the only diploma he had was

from "Technichron Technical Institute" (TTI). (Relator's Exhibits, August 10, 2009, Ex. 8A,

Wenninger's Diploma, 1987). TTI was not an institution registered and approved by the Ohio

Board of Regents (OBR), but a different type of institution operating under O.R.C. Chapter

3332. (See O.R.C. § 311.01(B)(9)(b) (2000); Relator's Exhibits, August 10, 2009, Ex. 8B, TTI's

1988-90 Certificate of Registration under O.R.C. Chapter 3332; Relator's Ex. 8C, documents

from State Board of Career Colleges and Schools (SBCCS), showing that TTI operated under it,

not the OBR, from 1978-1990; Ex. 8, TTI "Catalog," verifying no OBR accreditation). TTI was

not authorized by OBR to confer degrees, thus Wenninger's diploma from TTI did not satisfy the

statutory requirement. (See Relator's Exhibits, August 10, 2009, Ex 9A, subpoenaed documents

from OBR; Relator's Ex. 9C, O.R.C. 1713, April 14, 1985; O.R.C. 3332, October 31, 1979;

O.R.C. 3332, Nov. 1, 1985). Wenninger also did not secure any other educational credentials

prior to or immediately after taking office on January 1, 2001. (Relator's Exhibits, August 10,

1

2009, Ex. 10A, Wenninger's answer to First Doc. Req. No. 13).

These facts were at least a partial basis for the felony indictment of Wenninger as

reported at State vs. Wenninger, 125 Ohio Misc.2d 55, 2003-Ohio-5521.

Due to the lack of credentials Wenninger also had a four-year "break in service," from

January 1, 2001, to January 1, 2005, by not removing his disqualification, and lost OPOTA

certification two days before he assumed his second-term seat January 3, 2005. (Relator's

Exhibits, August 10, 2009, Ex. 2A, Wenninger's OPOTC Sheriff Appointment January 1, 2001;

O.A.C. § 109:2-1-12-(D)(3) and (E) (2001-05)). Since by statute Wenninger lost peace officer

certification after a four-year "break in service," in 2005, prior to the 2008 election, he was again

not a qualified candidate to run for the office of Sheriff (not having a valid peace officer

certificate). O.R.C. § 311.01; O.A.C. 109:2-1-12.

Appellant Vamau was certified March 28, 2008, by the Brown County Board of

Elections (BCBE) as an independent candidate opposing Wenninger in the 2008 election.

Varnau was therefore the only statutorily qualified candidate running for Sheriff in 2008. After

being certified as a valid candidate for the office of Sheriff by the BCBE on March 28, 2008,

Varnau then had standing to challenge Wenninger's legitimacy as a valid candidate. Following

the same protocol as a partisan candidate for filing a protest, Varnau sought the BCBE to accept

his protest of Wenninger's candidacy. Ohio election laws however only allow protests of

independents by partisan candidates, and deny protest of a partisan's candidacy by an

independent. Thus, Relator's protest filed with the BCBE, on April 11, 2008, was summarily

dismissed by the BCBE, because the election law did not "allow non-party affiliated persons to

challenge the qualifications of a party candidate and essentially disenfranchises independent

voters from challenging the qualifications of a party candidate." (Appendix A, "BCBE May 8,

2

2008, letter to Relator," attached to Wenninger's Brief and Response to Relator's Motion for

Summary Judgment, filed August 20, 2009).

Varnau then petitioned the Brown County Common Pleas Court for a Writ of Mandamus

to force the BCBE to accept the protest of Wenninger's candidacy as being timely and valid on

constitutional grounds of being denied due process and equal protection of the law under both

the Ohio and U.S. Constitutions. That case was dismissed on procedural grounds, the Brown

County Common Pleas Court finding that Varnau had an adequate future remedy, and was

denied the mandamus writ, stating "that the extraordinary remedy of mandamus is not

appropriate in that there is a legal remedy at law through a quo warranto action." (Judgment

Entry, Sept. 9, 2008, attached to Relator's Reply to Respondent's Memorandum in Opposition to

Relator's Supplemental Authority, filed June 28, 2010, p. 2). Vamau appealed to the 12th

District Court of Appeals, which upheld the lower Court ruling on those same grounds ("Should

Wenninger be elected and take office, appellant has other legal remedies."). (Judgment Entry,

State ex rel. Vamau vs. WenninQer, Case No. CA2008-09-006 (12a' Dist. Oct. 29, 2008), ¶ 3-4,

attached to Relator's Reply, filed June 28, 2010). The provisions within the Ohio election laws

dealing with candidate protest provisions challenged by Vamau were never addressed by any

Court, and Wenninger's qualifications to be a valid legal candidate for Sheriff in the 2008

election were never adjudicated by any agency.

Since Wenninger's votes did not count (he being statutorily disqualified for the office),

Varnau was and is entitled to the office. (Relator's Exhibits, August 10, 2009, Ex. 15A, BCBE

records).1 Once the general election results were certified by the BCBE on November 25, 2008,

Vamau, having standing then to challenge Wenninger's claim to the office of Sheriff, filed this

'See State ex rel. Williamson v. Cuyahoga Cty. Bd. of Elections (1984), 11 Ohio St.3d 90(where a relator was the only eligible candidate, the votes cast for relator in the election are the

3

original action in quo warranto in the 12th District Court of Appeals on February 27, 2009. On

cross-motions for sunnnary judgment, the Twelfth District granted Wenninger's Motion and

denied Varnau's, dismissing the petition, on August 16, 2010, and based on an unproven

"presumption" -- in Wenninger's favor -- that the BCBE previously investigated and passed upon

his qualifications for the office, and that unproven presumption was binding on these parties.

This timely appeal as of right was then filed to this Court.

ARGUMENT

Proposition of Law No. I:

A Court cannot grant summary judgment. in a post-election quo warranto action based onan unproven and disputed presumption in favor of a moving party that a board of electionsconducted an investigation of a candidate's qualifications for that office.

Varnau claims entitlement to a writ of quo warranto placing him in the office of Brown

County Sheriff and removing Respondent Wenninger from that office. Varnau's claims are

supported by undisputed facts, historically verified and documented, and mandated by decades-

settled case law and unambiguous statutes, all requiring -- to uphold the election laws in Ohio --

the issuance of the writ. Wenninger never held the minimum statutory requirements by law to

run for or hold the office of Brown County Sheriff, and did not acquire them. He therefore is not

legally entitled to hold the office. State ex rel. Vana v. Maple Hts. City Council (1990), 54 Ohio

St.3d 91. Vamau, the only other qualified candidate in the election is entitled to the writ.

Varnau's petition for quo warranto was denied by the lower Court by granting

Wenninger's Motion for Summary Judgment and denying Varnau's, based on a "presumption" in

favor of Wenninger -- the moving party -- that the BCBE actually conducted an investigation of

Wenninger's qualifications and found them to be valid, and whether legally or factually wrong or

not, was binding in this case. This Court reviews rulings on summary judgment de novo,

only ones to be counted).

4

independently and without deference to the trial Court's findings or conclusions. Bonacorsi vs.

Wheeling & Lake Erie Railway Co., 95 Ohio St. 3d 314, 319, 2002-Ohio-2220, ¶ 24; Wampler

vs. Higgins (2001), 93 Ohio St.3d 111, 127; Grafton vs. Ohio Edison Co. (1996), 77 Ohio St.3d

102, 105; Koos vs. Cent. Ohio Cellular, hic. (1994), 94 Ohio App.3d 579, 588; Maust vs. Bank

One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107. This Court has complete and

independent review of all questions of law, the only basis for granting summary judgment. MCI

Telecommunications Corp_vs. Pub. Util. Comm. (1988), 38 Ohio St.3d 266, 268.

The lower Court erred in the application of Ohio R. Civ. P. 56 in presuming that a

determination that maybe didn't occur justified judgment in favor of Wenninger. Such a

presumption, in favor of the moving party, should never have been made, particularly

considering Wenninger's own testimony it never happened. (Deposition of Wenninger, filed

October 14, 2009, p. 16, 19-21, 22-25) (of the protests ever filed, one protest was withdrawn by

the complainant, the other dismissed for procedural reasons and never heard on the merits).

The lower Court stated in its Judgment and Decision that: "There is nothing in the record

to suggest the Board did not conduct such an investigation prior to accepting Wenninger as a

qualified candidate." (Judgment Entry, August 16, 2010, ¶ 9, emphasis added). There is though

nothing in the record indicating that it did, even though both parties presented subpoenaed Board

of Elections ("BOE") documents. Although any report or fmding of any such investigation is not

in those materials, which Wenninger could have filed if it existed and didn't (on his Motion), yet

the Court presumed or inferred it happened, and relied on that inference to grant Wenninger's

Motion, allegedly unrebutted (but without consideration of Wenninger's own testimony, as a

principal in any such proceeding).

The lower Court therefore presumed, or inferred an act occurred, in favor of the moving

5

party -- Wenninger, which Civil Rule 56 does not allow. "Trial courts should award summary

judgment with caution, being careful to resolve doubts and construe evidence in favor of the

nonmoving party." Welco Industries, Inc. vs. Applied Co.'s (1993), 67 Ohio St.3d 344, 346

(emphasis added); Leibreich v. A. J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266; Davis v.

Loonco Industries, Inc. (1993), 66 Ohio St.3d 64; MurEhy v. Reynoldsburg (1992), 65 Ohio

St.3d 356, 258-59. Summary judgment is not to resolve inferences or evidence, nor to make

determinations as to the credibility or believability of witnesses. Killiliea v. Sears Roebuck &

Co. (1986), 27 Ohio App.3d 163; Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7.

The burden of proof is upon the party moving for summary judgment to establish that

there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law.

State ex rel. Baran v. Fuerst (1992), 65 Ohio St.3d 413, 416. "Regardless of who may have the

burden of proof at trial, the burden is upon the party moving for summary judgment to establish

that there is no genuine issue of material fact and that he is entitled to summary judgment as a

matter of law." AAAA Enterprises Inc. v. River Place Community Urban Redevelopment Corp.

(1990), 50 Ohio St.3d 157, syl. at 2. With respect to a responding/defendant:

seeking summary judgment on the grounds that the nonmoving party cannot prove itscase, [movant] bears the initial burden of informing the trial court of the basis for themotion, and identifying those portions of the record that demonstrate the absence of agenuine issue of material fact on the essential element(s) of the non-moving party'sclaims. The moving party cannot discharge its initial burden under Civil Rule 56 simplyby making a conclusory assertion that the nonmoving party has no evidence to supportthe nonmong party's claims. If the moving party fails to satisfy its initial burden themotion for summary judgment must be denied.

Vahila v. Hall (1997), 77 Ohio St.3d 421, 429; Dresher v. Burt (1996), 75 Ohio St.3d

280, 293. Wenninger had the exclusive burden to demonstrate that Varnau did not have a cause

of action, not that he has not proven the cause of action. Dresher v. Burt, supra at 280. This

cannot be done by inferences and presuming acts occurred, even if they were relevant (which

6

here, they were not; see this Brief, infra). Mere conclusory allegations on behalf of a movant are

not sufficient to overcome the burden of proof on summary judgment, and for that reason alone

the Judgment cannot be based on a presumption from an assertion of an intent to do something in

the future that it happened. Sethi v. WFMJ Television (1999), 134 Ohio App.3d 796.

The failure of Wenninger to prove and alleged BOE investigation happened, which

would have benefited him, actually would result in a stronger inference against him than for him.

The law in Ohio has long been that the burden of proof is on the party who wishes to support

their case by facts that lie more peculiarly within their knowledge, or of which they are supposed

to be cognizant. Adams v. Linn (Ohio App. 1936), 22 Ohio Law Abs. 34, 37. A party is

exempted though from the burden to prove facts that lie exclusively within the knowledge of the

opposing party. Olszowy v. Cleveland Railway Co. (1934), 47 Ohio App. 529.

In one case a plaintiff sued a trucking company for injuries caused by a driver, who was

driving a truck in the name of the defendant/employer. The Court held that it was the defendant

who had the burden to prove, for a driver operating a truck in their name, their argument that the

truck and the driver were in fact not theirs. The defendant's failure to prove that fact, which was

exclusively within their knowledge, allowed the trial Court to make the inference that it was in

fact their driver. The Court noted:

It seems to us a great deal may be inferred from the failure of [defendant] topresent evidence to show [the truck's owner/driver's employer]. The failure toproduce evidence peculiarly within the knowledge of the [defendants] is a rathereloquent fact in itself ....[I]t properly becomes the burden of the defendants tofiarnish the information as to the ownership of the truck and the employment ofthe driver. Were the rule otherwise it would result in defeating righteous claimsresulting from the wrongful acts of [defendants].

Armour Co. v. Yoder (1931), 40 Ohio App. 225, 236-37. This is material in that the

evidence disputed that any such "investigation" much less a"detennination" of Wenninger's

qualifications ever happened. Contrary to the presumption the lower Court relied upon in ruling

in favor of the moving party (Wenninger) no board of elections ever made a decision on the

merits of any of Wenninger's qualifications to hold the office of Sheriff, and there is no evidence

it ever did -- other than verifying that Wenninger said on an application he met the qualifications,

which was not factually or legally true. There has been no contested proceedings on any protest

or challenge on Wenninger's qualifications, for any Board to "weigh" or hear anything, and

Wenninger knows it. (D.Wenninger, p. 16, 19-21, 22-25 (one protest withdrawn by the

complainant, the other dismissed for procedural reasons))?

The lower Court relied upon the role of the BOE in doing nothing other than certifying

the candidacy of a candidate, whether after an actual determination of qualifications or not. (See

Judgment, August 16, 2010, ¶ 7). A BOE's action in doing that though has no preclusive effect

because, at least in this context, it was not even quasi-judicial action. "[A] board of elections * *

* is a quasi-judicial body when it considers protests." State ex rel. Cooker Restaurant Corp. v.

Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 306 (emphasis added). A "letter"

the lower Court relied upon (to find there might in the future be some determination) said the

protest was denied due to timeliness and a statute that didn't allow protests by non-party

members. The lower Court ruled based on a non-existent decision on a protest, for a protest that

could not have even been heard at all. See State ex rel. Williams v. Board of Elections of

Trumbull Cty. (1963), 175 Ohio St. 253, 254 (BOE exercises authority to determine the

qualifications of a candidate "in a protest proceeding"); State ex rel. Flynn v. Board of Elections

of Cuyahoga County (1955), 164 Ohio St. 193, 200, over'd on other grounds, State ex rel.

Schenck vs. Shattuck (1982), 1 Ohio St.3d 272.

2 Wenninger's Briefs repeatedly referenced findings in his favor that he is qualified, but cited toand attached no such findings.

8

In describing the BOE role regarding the qualifications of a candidate, this Court stated

that a BOE has authority to determine, if elected, a candidate could successfully assume that

office, in the context of a protest hearing. Fl i , supra at 200. There is no evidence to support

Wenninger's position, or the lower Court's presumption, that any protest was actually ever ruled

upon on the merits, or that a board of elections did anything other than look at the candidate's

paperwork to see if the blanks are filled in correctly and under oath. A board of elections not

only has no duty to do anything else, but it is not required to do more than that unless a protest is

filed, and even then only on limited grounds. R.C. 3513.05 ("At the time fixed such election

officials shall hear the protest and determine the validity or invalidity of the declaration of

candidacy and petition. If they find such candidate is not an elector of the state, district, county,

or political subdivision in which the candidate seeks a party nomination or election to an office

or position, or has not fully complied with this chapter, the candidate's declaration of candidacy

and petition shall be determined to be invalid and shall be rejected, otherwise it shall be

determined to be valid.") (Emphasis added.); see also, R.C. 3501.39(B).

One of the cases relied upon by the lower Court, State ex rel. Shumate vs. Portage

County Board of Elections (1992), 64 Ohio St.3d 12 (Judgment, August 16, 2010, ¶ 9),

specifically expressed the "duty" the Court relied upon in presuming the BOE took some action,

to apply to protest hearings: "That respondent [there a BOE] has not only the authority to review

R.C. 311.01(B)'s qualification requirements for the office of sheriff, but also the duty to do so

whenever those qualifications are challenged in a protest." Id. at 16 (granting a writ after a

failed protest). A BOE has no duty to do so absent a protest of a candidate's candidacy, as the

requirements contained therein "are outside the elections law, and ...deal with substantive issues

of eligibility for candidacy other than technical declaration or petition requirements." Id.

9

The only evidence before the Court is that there was no such protest ever ruled upon.

One protest was withdrawn before decided. The other, Vamau's protest filed with the BOE on

April 11, 2008, was summarily dismissed by the BOE because the election law did not "allow

non-party affiliated persons to challenge the qualifications of a party candidate and essentially

disenfranchises independent voters from challenging the qualifications of a party candidate,"

according to the very letter the Court quoted. (Appendix A, "BCBE May 8, 2008, letter to

Relator," in Wenninger's Brief and Response to Relator's Motion for Summary Judgment). It

was dismissed on procedural grounds (due to political affiliation and who could file a protest),

never on the merits of Wenninger's qualifications for the office. The lower Court's Judgment

holds a non-party, who could not legally have protested, to the effect of a protest that never

happened and determination without a protest that may or may not have ever happened.

Therefore, the only actual evidence in the record is that no such determination on any

merits was ever made by anyone. There never has been any contested proceedings on any

protest or challenge on Wenninger's qualifications, for any Board to "weigh" or hear anything,

and Wenninger knows it and admitted it. (D.Wenninger, p. 16, 19-21, 22-25).

Even if there was an inference that some determination was made somewhere, it was

countered by Wenninger himself, and that is a genuine issue that defeats Wenninger's motion. A

withdrawn protest, a procedural and probably unconstitutional dismissal on "standing" type

grounds, and a jury verdict of not guilty for "knowingly" falsifying one's qualifications, are all

far from an endorsement. Varnau could not even have participated, much less advocated or

appealed, any protest, and yet the lower Court denied him the right to challenge here, now,

because of a procedure he was precluded by law from participating in. See R.C. 3513.263.

The record is absent any evidence supporting Wenninger's claim that any board of

10

elections ever ruled on anything in any quasi-judicial capacity or otherwise. Wenninger even

admitted in his deposition the falseness of the premise that the BCBE ever did officially rule on

the merits of his qualifications for this office. (D. Wenninger, p. 24).

Particularly, Varnau cannot have judgment granted against him because he didn't

disprove it: "There is no `default' summary judgment under Ohio law." Monastra v. D'Amore

(1996), 111 Ohio App.3d 296, 308; Cseipes v. Cleveland Catholic Diocese (1996), 109 Ohio

App.3d 533, 541; Maust v. Palmer (1994), 94 Ohio App.3d 764, 769; Wooten v. Columbus

Division of Water (1993), 91 Ohio App.3d 326, 331. This is the exact result of the case here:

judgment granted in favor of a moving party based on an inference that the moving party did not

prove and the non-moving party did not (allegedly) disprove.

Proposition of Law No. II:

A board of elections' placing a candidate on a ballot does not establish the candidate's legalqualifications for the office that is binding in a later action in quo warranto to challenge thecandidate's legal qualifications to hold the office.

A. Actions by a board of elections outside of a protest hearing have nopreclusive effect on later challenges to the elected official.

The lower Court's ruling that prior determinations were made by the BOE that he was

completely legally qualified is lacking any evidentiary support. It is also legally irrelevant.

Some judicial or quasi-judicial action is necessary for any "determination" to have any preclusive

effect in a later proceeding. There must be afinal determination of facts. See e.g., In Re Burton,

160 Ohio App. 3d. 750, 2005-Ohio-220. If there is no "final order," there can be no issue or fact

preclusion. Glidden Co. vs. Lumberman's Mutual, 112 Ohio St. 3d. 470, 2006-Ohio-6553. The

issue further must have been fully litigated in the prior proceeding and not only final but

complete. Altematives Unlimited-Special, Inc. vs. Ohio Department of Education, 168 Ohio

App. 3d. 592, 2006-Ohio-4779. Generally, orders that are preliminary, temporary, a.k.a.

11

interlocutory, are not "final" for preclusion purposes. Kalk vs. Woodmere (1985), 27 Ohio App.

3d. 145, 148-149. It is only final appealable orders that have issue preclusion effect. See, e.g.,

Schoemaeker vs. First National Bank (1981), 66 Ohio St. 2d. 304, 314.

Generally a ruling on a protest is not subject to judicial review at all, see State ex rel.

Flynn, supra at syl. 1, and certainly not by someone not a party to the protest or otherwise

without standing to even make one. See also, Foster vs. Cuyahoga Cty. Board of Elections

(1977), 53 Ohio App.2d 213, 223-224 (rejecting the proposition that an adnlinistrative appeal is

the proper remedy from a BOE certifying a candidate to be on a ballot, because there is no

"quasi-judicial" function in that procedure and therefore no appealable order).

That a BOE's placement on a ballot means nothing for the candidate's eligibility to hold

the office was confirmed years ago. In State ex rel. Wolfe v. Lorain County Bd. of Elections

(1978), 59 Ohio App.2d 257, the Court noted that under Ohio election laws a candidate generally

need not qualify for the prospective office in order to run for or be elected to that office. He must

be qualified when he assumes that office. This principle applies to disqualification imposed by

Constitution, State ex rel. Fisher v. Brown (1972), 32 Ohio St.2d 23, and by statute, as is the case

here. State ex rel. Tilden v. Harbourt (1940), 70 Ohio App. 417. Examples of a legislative

policy against disqualifying candidates from being elected to, as opposed to actually holding

office, are found in R. C. 3513.07, which regulates the form for declarations of candidacy in

primary elections. Such declarations, if intended to equate running for or being elected to the

office, with actually holding it, should state: "if elected to said office or position, I will qualify

therefor ...," rather than "I do now qualify," or "I will qualify at the time of election." Wolfe

vs. Lorain Co., supra at 258. The distinction was also made in State ex rel. Flynn, supra at 200,

where this Court stated:

12

Those decisions clearly establish the authority of a board of elections to have, upon

protest, a hearing, take evidence and render a decision on the facts, although the facts are

disclosed by testimony not strictly applicable to a technical construction of thenominating petitions. Section 3513.262, Revised Code, giving authority to determine the"validity or invalidity" of the petition of a candidate confers upon the board of electionsauthority to determine the facts which will disclose whether the candidate may lawfully

be elected to the office he seeks.

(Emphasis added). This Court's recent decision in State ex rel. Knowlton vs. Noble Cty.

Board of Elections, 125 Ohio St.3d 82, 2010-Ohio-1115 (Knowlton 1), also at least implicitly

rejects the argument that a BOE's action, even on a valid protest, is preclusive of anything. In

that case an elected sheriff resigned (under felony indictment), and a temporary appointment of a

replacement was made to take his place until the next election. The replacement filed as a

candidate and a protest was filed claiming he didn't meet the supervisory or educational

requirements for the office. The BOE agreed with the candidate and denied the protest on the

merits. The challenger though still filed for a writ of prohibition and a writ of mandamus at the

same time to prohibit the candidate being placed on the ballot. Although this Court denied the

mandamus (for procedural reasons), it granted the writ of prohibition against the BOE -- even

though there was a decision on the merits on a contested protest.3 See also, Foster vs. CuyahoQa

Cty. Board of Elections (1977), 53 Ohio App.2d 213, 222-223 (the Court expressly rejected the

similar argument, that "by virtue of his acceptance by the board of elections as a write-in

candidate, [he] must have been found to possess the qualifications of an elector. ...."); State ex

rel Shumate vs. Portage County Board of Elections (1992), 64 Ohio St.3d 12, 16 (granting a

3 Varnau could not have filed a writ of prohibition against the BOE before the election as he hadno standing until the election, per a lower Court's prior ruling upholding the Statute disqualifyinghim from protesting a partisan candidate. Before the election he also could not meet thenecessary elements to obtain a writ of prohibition, including that the BOE was not exercising orabout to exercise "judicial power," the exercise of its power (placing a candidate on a ballot) was

authorized by law (even if erroneously exercised), and not issuing the writ would not haveresulted in injury for which no other remedy existed (as the lower Courts said, his remedy was in

quo warranto if he didn't win the election by defeat from an unqualified candidate). See, State

13

writ, even after an unsuccessful protest).

The cases cited by the lower Court, in finding a preclusive effect on anyone of a BOE's

placement on a ballot (Judgment, August 16, 2010, ¶ 9-10), were all in the context of a direct

action by a protester against a BOE after an actual protest. For example, State ex rel. Kelly vs.

Cuyahoga Cty. Bd. of Elections (1994), 70 Ohio St.3d 413, was a protest case where Kelly was

questioning the judicial qualifications of Gallagher to be a judicial candidate. The Board

exercised its authority to review a non-election statutory provision, like that of 311.01(B) and

(C), and in a quasi-judicial protest hearing. Here, Vamau was not permitted to be a protester.

There never was a protest ruled upon the merits, and there is no evidence there ever was.

Wenninger himself says there wasn't. This case is a petition after an election to do the only thing

that can be done to challenge the qualifications of an elected official, and can only be done by

one who would hold the office if the elected official is not legally qualified.

Even if the standard of review on a direct appeal would apply, the BCBE engaged in a

"clear disregard of statutes or applicable legal provisions" by certifying a candidate that Vamau

has proven was not statutorily qualified for the office. State ex rel. Kelly v. Cuyahoga Cty. Bd.

of Elections (1994), 70 Ohio St.3d 413; State ex rel. Carr v. Cuyahoga Cty. Bd. of Elections

(1992), 63 Ohio St.3d 136. The language, "(s)uch determination shall be final," contained in R.C.

3513.05, 3513.262 and 3513.263, is in reference to a determination by a board of elections of a

protest proceeding. No Board or (civil) Court has ever addressed Wenninger's qualifications.

B. Quo Warrauto is the exclusive procedure to challenge an electedofficeholder's qualifications and right to the office and is independent of any action by any

board of elections.

The lower Court's Judgment effectively nullifies the concept of a writ of quo warranto, as

any elected office holder -- the only person in office and subject to the writ -- got there by action

ex rel. Cordray vs. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, ¶ 25.

14

of a board of elections; and defers the writ's purpose to an administrative board. A writ of quo

warranto has to be independently available or it has no meaning. The authority to hear such an

action is granted in § 2 and 3, Article IV of the Ohio Constitution. Jurisdiction is statutorily

established under R.C. 2733.03 as exclusively vested in the Courts of Appeals and the Supreme

Court. See, e.g., State ex rel. Lindley v. The Maccabees (1924), 109 Ohio St. 454. Even the

courts of common pleas are without jurisdiction over actions in quo warranto. State ex rel.

Maxwell v. Schneider (1921), 103 Ohio St. 492.

The writ itself is a high prerogative writ and is granted as an extraordinary remedy where

the legal right to hold an office (not just to be on a ballot) is successfully challenged. State ex rel.

St. Sara Serbian Orthodox Church v. Riley (1973), 36 Ohio St.2d 171, 173; State ex rel. Cain v.

Kay (1974), 38 Ohio St.2d 15, 16-17. The actual remedy afforded is that of ouster from the

public office. R.C. 2733.14.

More importantly, quo warranto is the exclusive remedy by which one's right to hold a

public office may be litigated. State ex rel. Hogan v. Hunt (1911), 84 Ohio St. 143, syl. 1. To

obtain such a writ, one must demonstrate that he "is entitled to the [public] office and that the

office is unlawfully held by the respondent in the action." State ex rel. Cain, supra at 17. If one is

barred from that "exclusive remedy" to litigate over one who is allegedly unlawfully holding an

office, merely because a board of elections put that person on the ballot, it is no remedy at all. A

court therefore must adjudicate an officeholder's right to the office, regardless of how he got

there. The distinction between procedures to get in office and this writ to get one out of office,

was made by the Supreme Court in State ex rel. Battlin vs. Bush (1988), 40 Ohio St.3d 236:

Furthermore, the statute deems the office to be vacant automatically, upon the occurrenceof the statutorily determined events. Thus, while one may have been lawfully elected to

an office, vested with the authority of the office and fully entitled to occupy it for a set

time, nevertheless, an official may abandon his office. In such event, pursuant to the

15

provisions of R.C. 305.03, an action in quo warranto would be unnecessary.

Id. at 305 (emphasis added). See also, State ex rel. Trago v. Evans (1957), 166 Ohio St.

269 (after a vacancy was declared pursuant to then effective R.C. 305.03 because the elected

Sheriff, who was incarcerated in another county, had been absent from the county for ninety

consecutive days, and the Court distinguished the statutory procedure to fill vacancies from the

common law writ of quo warranto. "In so holding, we determined that the occurrence of a

vacancy in a public office under R.C. 305.03 has no relation to an action for the removal of an

office holder pursuant to a writ of quo warranto.") (emphasis added).

In State ex rel Huron Cty . Prosecutor v. Westerhold, 72 Ohio St.3d 392, 1995-Ohio-86,

this Court rejected the basis for Wenninger's argument, and the lower Court's Decision here:

While a de facto officer is treated as a de jure officer, the de facto officer's actions are

valid only until a proper challenge in a quo warranto proceeding removes him fromoffice. State v. Staten, 25 Ohio St.2d at 110, 54 0.O.2d at 237, 267 N.E.2d at 125; see,

also, State ex rel. Purola v. Cable ( 1976), 48 Ohio St.2d 239, 242, 2 0.O.3d 410, 411-412, 358 N.E.2d 537, 539, citing People ex rel . Norfleet v. Staton ( 1875), 73 N.C. 546,

550 (" 'The only difference between an officer de facto and an officer de jure is, that theformer may be ousted in a direct proceeding against him, while the latter cannot be.' ").The court of appeals in State ex rel. Williams [v. Zaleski, Lorain App. No. 3364,unreported, affd sub nom State ex rel Williams vs. Zaleski ( 1984), 12 Ohio St.3d 1091

also acknowledged the propriety of quo warranto to challenge the validity of the

appointment of an officer, despite the presumed validity of a judicial appointment under a

statute. Here, Westerhold is at best a de facto officer whose appointment was properly

challenged in quo warranto, regardless of any presumed validity of his appointment.

Id at 396 (emphasis added). Therefore, how the person got in office, even if by judicial

appointment (much less the ministerial act of being placed on a ballot), is irrelevant to whether

quo warranto can get them out of office, especially if they are not legally qualified to hold it.

Similarly, the statutory procedures to fill a ballot have nothing to do with a subsequent procedure

to remove an unqualified person from the same office.

16

Proposition of Law No. III:

Allowing action by a board of elections in placing a candidate on a ballot to preclude acandidate who had no right to protest that action or to participate in a protest fromchallenging the officeholder's qualifications, is unconstitutional.

A board of elections put someone on a ballot, after determining his challenger had no

right to protest doing so, a determination upheld by the trial Court and the lower Court, expressly

stating, in addressing the exact same "determination," that this Relator had another remedy: this

quo warranto action. This Judgment now finds that as a result of a presumed determination (that

Vamau had no right to protest against, adjudicate, participate in, or present his case), in a non-

adversary setting (if it occurred at all), he is barred from a day in court: this petition for this writ;

by a proceeding he was barred from participating in.

That result is unconstitutional in violation of the due process or right-to-a-remedy

provisions of § 16, Art. I of the Ohio Constitution, and the equal protection guarantees of the

Fourteenth Amendment to the U.S. Constitution and § 2, Article I, of the Ohio Constitution. The

first provision from the Bill of Rights to Ohio's Constitution provides two distinct guarantees: (1)

that legislative enactments may abridge individual rights only "by due course of law," see

Mominee vs. Scherbarth (1986), 28 Ohio St.3d 270, 274-276, and Gaines vs. Preterm-Cleveland

Inc. (1987), 33 Ohio St.3d 54, 59, a guarantee which is equivalent to that of the Due Process

Clause of the Fourteenth Amendment, Direct Plumbing Supply Co. vs. Da t^on (1941), 138 Ohio

St. 540, 544; and (2) that all courts shall be open to every person with a right to a remedy for

injury to his person, property or reputation, with the opportunity for such remedy being granted

at a meaningful time and in a meaningful manner. Hardy vs. VerMeulen (1987), 32 Ohio St.3d

45, 47; Gaines, supra at 60.

The lower Court's application of the statutes governing board of elections procedures, to

17

one who is barred by those same statutes from participating in those procedures (R.C. 3513.05),

denies him the right to remedy -- quo warranto -- by the BOE action in placing the opponent on

the ballot, before he even had the right (the election). It denies him equal protection of the law,

and due process, by denying him a fundamental right -- to be elected and to hold a public office

over that of an unqualified candidate -- due merely to a statute that prohibited him from

protesting that candidacy merely because of his political party. It bars even the consideration of

his petition for a common law writ because of that same process that he could not participate in.

It is unconstitutional to do so. See Brennaman vs. R.M.I. Co. (1994), 70 Ohio St.3d 460, 466-

467 (invalidating statute of repose); State ex. rel. OATL vs. Sheward (1998), 86 Ohio St.3d 451,

475-476. The BOE letter the Court relied upon even notes the likelihood of unconstitutionality

of what it felt it was required to do, in refusing to hear the protest. This Court is requested to

come to the same conclusion.

Proposition of Law No. IV:

An opposing qualified candidate for the office of county sheriff is entitled to a writ of quo

warranto where the elected candidate purported to meet the minimum statutoryeducational requirements for the office by attendance at an institution that at the time wasnot accredited by the Ohio Board of Regents.

The lower Court erred in granting Wenninger's motion for summary judgment based on

an inference in his favor, without evidentiary support, that some investigation of his

qualifications was ever done by the BOE -- which is legally irrelevant to a quo warranto action

anyway. Without that invalid "presumption," Varnau's evidence in this original action compels

the conclusion that Wenninger did not have the minimum statutory qualifications for the office.

Varnau's evidence, either attached to pleadings in the case or filed in a separate appendix was

voluminous, and some was redundant, irrelevant, and potentially inadmissible, so that material

was redacted prior to filing. Wenninger never objected to any of it. A court on summary

18

judgment proceedings can consider any material if not subjected to a specific objection, which if

timely made would allow correction, and failure to do so is waiver of any objection. Stegawski

vs. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78.

A. Wenninger's lack of eligibility and qualification for the Office.

Wenninger failed to meet all requirements of O.R.C. § 311.01 to be a valid candidate in

the 2000, 2004, and 2008 elections. O.R.C. § 311.01(B) provides that an unqualified person

"shall not be elected or appointed unless they meet all the following requirements." (Emphasis

added). See also, State ex rel. Wolfe v. Delaware Cty. Bd. of Elections, 88 Ohio St.3d 182,

2000-Ohio-294. Wenninger never legally held the office of Sheriff, beginning in 2001. He then

"forfeited" the office on January 1, 2001, after failing to remove his disqualification

"immediately upon assuming the office" as to his lack of education required at that time under

O.R.C. 311.01(B)(9)(b). Id.

1. Wenninger's deficient educational qualifications -- no Ohio Board of Regents'

authority.

Wenninger's educational credentials did not include a diploma from a school accredited

under the Ohio Board of Regents as required at that time under the O.R.C. 311.01(B)(9)(b).

Wenninger's diploma was from Technichron Technical Institute (TTI). Ohio Board of Regents

(OBR) and Ohio Secretary of State documents showed that neither TTI nor its successor Phoenix

Educational Systems ever received a certificate of authorization from the Ohio Board of Regents.

TTI's own material does not claim OBR authorization, and it could not according to the

undisputed evidence. The Statute does not provide for any exceptions or alternative; there is no

"umbrella" for other unstated agencies under other unstated Chapters of the Revised Code, or for

institutions that don't otherwise meet statutory defmitions -- Wenninger's only argument. The

only factual support provided by Wenninger was an "affidavit" of a political friend of Wenninger

19

to argue a point of law contrary to the written words of a Statute. Although the affidavit was

inadmissible (objection was made, and the lower Court stated it did not rely upon it, see Entry,

August 17, 2010), it certainly does not change the written words of the law, and served merely to

whitewash an unqualified candidate in an official position of great authority and discretion.

If the General Assembly meant to include other boards or proprietary schools it could

have done so, but did not. It specified only the Board of Regents.4 No legislator can unilaterally

do so and neither can a court. Wenninger's position requires the Court to add "substantial

compliance," or "some other comparable agency in the State," or "within the umbrella or

auspices" of the Board of Regents (although that is not factually true, either). "Courts have a

duty to give effect to the words used in a statute and not to delete words used or insert words not

used." State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 360, 2004-Ohio-4960, ¶ 30.

Wenninger's opposition and his supporting material was factually and legally wrong in

many other ways. The arguments Wenninger continues to rely upon have no basis under the

written words in the law. Wenninger (through his proffered affiant, although not relied upon by

the lower Court) argued that Wenninger "substantively" met the R.C. 311.01 requirements in that

TTI was "accredited by the National Association of Trade and Technical Schools (NATTS)"

which (he claims) is "a comparable agency to the Ohio Board of Regents". However R.C.

311.01 only provides for compliance with the Ohio Board of Regents, not some "comparable"

agency in Ohio. There is no "umbrella" mentioned in the Ohio Revised Code, and the issuance

of degrees, and the proper degree, by the proper agency, is paramount. This same argument was

4Expressio unius est exclusio alterius is the Latin maxim that means that the expression of one ormore persons or things implies the exclusion of those not expressed. Bank One, N.A. v. PICPhoto Finish, Inc., 2006-Ohio-5308, ¶23. Typically, this maxim is applied where there is a listingof items in an associated group or series, which "justif[ies] the inference that items notmentioned were excluded by deliberate choice, not inadvertence." Barnhart v. Peabody Coal Co.(2003), 537 U.S. 149, 168.

20

rejected in Wenninger's criminal case:

Beginning with Count I, R.C. 3599.36, election falsification, defendant argues thathe substantially met the educational requirements to become Brown County'sSheriff. However, to the Court's knowledge, there is nothing in R. C. 311.01 thatpermits substantial compliance, and defendant has not presented any supportingstatutory or case law to indicate otherwise.

State vs. Wenninger, 125 Ohio Misc.2d 55, 58, 2003-Ohio-5521, ¶ 5. The Judge was

correct: there is no such law. Ohio election statutes are mandatory and require strict compliance

unless a statute specifically permits substantial compliance. State ex rel. Steele v. Mon•issey, 103

Ohio St.3d 355, 360, 2004-Ohio-4960, ¶ 33 (citations and quotations omitted); State ex rel.

Wilson v. Hisrich (1994), 69 Ohio St.3d 13, 16; State ex rel. Citizens for Responsible Taxation v.

Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167, 169. "[T]he settled rule is that election

laws are mandatory and require strict compliance," and that "[s]ubstantial compliance is

acceptable only when an election statute expressly permits it." State ex rel. Thurn v. Cuyahoga

Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 294. In Morrissey, the relator on a mandamus

petition argued that the referendum laws should be "liberally" construed to allow for errors and

inconsistencies. This Court rejected that proposition: "R.C. 731.32 does not expressly permit

substantial compliance, so it requires strict compliance." Id. at 360-361, ¶ 33.

So do the Statutes now before the Court: there is no room for the made up interpretation

of the Statutes here that Wenninger requires. The evidence was undisputed that Wenninger's

educational credentials did not equate to two years in a school accredited by the Ohio Board of

Regents as required at that time by O.R.C. 311.01(B)(9)(b). Ohio Board of Regents and the

Secretary of State documents show that neither TTI nor its successor Phoenix Educational

Systems ever received a certificate of authorization from the Ohio Board of Regents.

Wenninger's support (the Callender's affidavit) stating he "reviewed a letter from the

21

Ohio Board of Regents dated October 4, 2002 issued by Shane DeGarmo," is deceiving in that

nowhere does that piece of correspondence address the question presented: was Technichron

Technical Institute, Inc. at the time periods applicable to this dispute, authorized by the Ohio

Board of Regents to confer "two year post secondary education diplomas, certificates or

degrees." That October 4, 2002 letter from DeGarmo clearly states in the first two paragraphs

that the Technichron Technical Institute does "not fall within the jurisdiction of the Ohio Board

of Regents." (Emphasis added). DeGarmo's letter essentially reiterates the legal distinction

between O.R.C. 1713 and 3332.

Furthermore, the communication dated March 19, 2003, from DeGarmo to Kris Frost

indicates that in fact TTI did not meet the requirements of R.C. 311.01 to confer degrees, even if

admissible, and it therefore creates, not dispels, a disputed issue.

Wenninger uses the term "umbrella," o as reported in his criminal case, "auspices." If

indeed TTI had complied with the requirements of the Ohio Revised Code and the regulations of

the Ohio Board of Regents, applied for certification by it, offered academically acceptable

courses, and met the criteria for semester hours, it might have been authorized by the Ohio Board

of Regents -- but it didn't. It could not have, according to the material Vamau submitted

(without objection or dispute). The argument, and the affidavit, have no basis in law or fact.

The affidavit also otherwise contradicts itself as to what year the diploma was granted or

issued, and what Statute TTI operated under at that time. During that time (when the diploma

was issued), in fact from his high school diploma, June 8, 1986, to TTI "graduation," October 23,

1987, was a summer and one-year of school. When Wenninger received his diploma from TTI

the Board of Regents was not involved. Even in December of 1999, TTI was under the Board of

Proprietary School Registration; and when Wenninger got his TTI diploma, on October 23, 1987,

22

TTI was under the State Board of School and College Registration.

It is clear from the 1985-89 Revised Code that TTI was not associated with OBR in any

way whatsoever, and could not legally have been. Chapter 3332 of the Revised Code does not

apply to the following categories of courses, schools, or colleges "(B) Institutions with

certificates of authorization issued pursuant to section 1713.02 of the Revised Code; (C) Schools,

colleges, technical colleges, or universities established by law or chartered by the Ohio board of

regents." R.C. 3332.02 (emphasis added).

Further, the affidavit claims at the time that Wenninger received his "two year" diploma

from TTI, proprietary schools were authorized to confer two-year post secondary education

diplomas and associate degrees. This conflicts with the actual written materials from the Board

and otherwise. (Relator's Exhibits in Support of Motion for Summary Judgment, filed August

10, 2009, Ex. 8B). Exhibit 8B also shows TTI was registered initially on 10/27/78, with

Certificate No. 78-10-0626T, transferred in 12/1985 to Certificate No. 70-12-0040T.

Wenninger's afHant though claims, in conclusory fashion, that Wenninger's education

met the educational standards set by R.C. 311.01(B)(9)(b) to run for Sheriff in 2000, although he

graduated from TTI in 1987, and the law providing what a sheriff had to have was written, as

applicable to the 2000 election, in 1990, then creating the requirements to allow schools,

institutes, etc., under Chapter 3332, to apply to the OBR for a certificate of authorization for a

particular course, taught at a particular location, IF, the school, institute, etc., had been teaching

that course for a minimum of 10 years or more at that location. TTI started business on October

27, 1978. Wenninger got his diploma on October 23, 1987. That is nine years, not the minimum

to even think about applying to the OBR for a certificate of authorization. And, if any school or

institute, etc., was granted a certificate of authorization by the OBR, that certificate had to be

23

filed with the Secretary of State per Chapter 1713, and the subpoenaed documentation from the

Secretary of State shows that didn't happen, either.

In addition, TTI was not such an "institution" that even could have been accredited by the

Ohio Board of Regents. Since TTI was a for-profit school, it would not even qualify under

O.R.C. Chapter 1713 to be Board of Regents' approved. Prior to 1990, TTI would have had to

have been a not-for-profit/nonprofit school or institute to even approach the Board of Regents for

any kind of approval. O.R.C. 1713.01(A).

2. Wenninger's deficient educational qualifications -- not enough hours/years.

R.C. § 311.01(B) provides that an unqualified person "shall not be elected or appointed

unless they meet all the following requirements." (Emphasis added). See also, State ex rel. Wolfe

v. Delaware Cty. Bd. of Elections, 88 Ohio St.3d 182, 2000-Ohio-294.5 Wenninger's

protestations of an "umbrella" of authority for TTI under the OBR ignores that he was still

required, wherever it was, to get two-years of post-secondary education. R.C. 311.01(B)(9)(b) is

not confusing. To be a legal candidate for Sheriff in 2000 (as relevant to this issue):

(b) Has completed satisfactorily at least two years ofpost-secondary education orthe equivalent in semester or quarter hours in a college or university authorizedto confer degrees by the Ohio board of regents or the comparable agency ofanother state in which the college or university is located. (Emphasis added).

First, a two-year degree was impossible since all of Wenninger's own materials reflect he

graduated from high school in 1986 and got his TTI diploma in 1987. By his own admission he

did not start any post-secondary education until August 1986, and got his one and only degree of

any kind 14 months later -- October 1987. (D.Wenninger p. 4, 7). That reduces the amount of

total time from start to finish to absolutely no more than a total of 14 months of schooling.

5 Even Wenninger knows that if he doesn't meet the statutory requirements, initially or at anytime during a claimed tenure, he becomes an invalid peace officer. D.Wenninger p. 11. Thecases cited by Wenninger's counsel were decided before the laws applicable here were enacted.

24

Fourteen months divided by 3 (a "quarter" being a 3-month term), times a full-time credit

schedule of 15 credit hours per quarter; equals 69 maximum quarter credit hours.6 Wenninger's

claim to office is dependent upon him having received a two-year "diploma," authorized under

O.R.C. § 3332. O.A.C. 3332-1-16(C)(2) dictates that such diploma issued to him had less than

90 quarter credits or 60 semester credits. A two-year degree under the Ohio Board of Regents,

O.A.C. 3333-1-04(C)(6), dictates a minimum of 90 quarter hours or 60 semester hours are

required for a two-year associate degree.

He can't have it both ways, and didn't have it the way the law requires, in substance or

letter. The Ohio Board of Regents standards for two-year degrees are in O.A.C. 3333-1-04(C)

(General standards for the approval of associate degree programs), and states:

(6) For approval by the Ohio board of regents, associate degree programs must contain aminimum of ninety quarter credits or sixty semester credits and should not exceed amaximum of one hundred ten quarter credits or seventy-three semester credits ....(Emphasis added).

But the standards under the State Board of Career Colleges and Schools (TTI's applicable

standards) for diploma programs are in O.A.C. 3332-1-16 and state:

(C) All certificate and diploma programs approved by the board shall meet thefollowing minimum standards:

*+*

(2) "Diploma program" means a program of instruction offering technical andbasic coursework. General courses may be included. The program shall generallyrange in length from more than six hundred but less than fifteen hundred clockhours; or more than forty but less than ninety quarter credit hours; or more than

twenty-seven but less than sixty semester hours. (Emphasis added).

Wenninger could not have physically or legally accumulated between those two dates,

the minimum 90 credit hours required by the Ohio Board of Regents and the O.A.C. for the

required two-year associate program.

6 See O.A.C. 3333-1-08 as to the methods of calculating class hours.

25

Not only does he want the statutory requirement of "Board of Regents" not to mean

"Board of Regents," but "two years" also to mean "14 months." Because Ohio election statutes

are mandatory and require strict compliance, see State ex rel. Steele v. Morrissey, supra, and this

Brief, supra, these Statutes do not allow the variance Wenninger requires to hold the office, or

the made up interpretation of the Statutes here that Wenninger requires.

Wenninger may also argue that because he claims to have two or more years of

experience as corporal or higher (from his time as Sheriff from January 1, 2001 to the 2004

election cycle), giving him the credentials to be a valid candidate under O.R.C. 311.01(B)(9)(a),

his lack of educational qualifications even under after-the-fact amendments to O.R.C.

311.01(B)(9)(b) is moot. In addition to the fact that those years were illegal, this ignores that

because his OPOTA police certificate expired prior to him taking office on January 3, 2005, he

was not in compliance even with O.R.C. 311.01(B)(8)(a) or (b) and/or O.A.C. § 109:2-1-

12(A)(2) and (D)(3) at that time, either.

He still is not a valid candidate, because even if he was qualified under a new version of

the law unconstitutionally enacted specifically for him, or under the corporal or higher section, to

be a valid candidate for the 2004 election he still could not take the seat without a valid peace

officer certificate on January 3, 2005.

His certificate expired on January 1, 2005, and whether he was qualified or not under the

supervisory or educational provisions at that time he cannot sit as a sheriff without a current,

valid peace officer certificate. Any qualifications acquired under "supervisory experience"

would not take effect, or have any affect, until after he started the January 3, 2005 term. He was

still in his first illegal term in office that he vacated on January 1, 2001, by not removing his

disqualification under the 2000 election laws in § 311.01(B). A sheriff candidate cannot illegally

26

be on the ballot, even if having garnered 99.99% of the votes cast, and claim to legally hold the

office when by law no valid appointment or election of such candidate is possible unless that

candidate's disqualification is immediately removed upon assuming office -- just because he kept

the office long enough before anyone with a right to do so formally challenged it.

This Court recently decided State ex rel Knowlton vs. Noble County Board of Elections,

125 Ohio St.3d 82, 2010-Ohio-1115 (Knowlton I). The challenged candidate was saying his

OPOTA training, which he received college credit for (along with other "life experience"

credits), met both the OPOTA requirements and the educational requirements, at the same time.

The Board of Elections agreed, and denied the protest. This Court denied the mandamus (for

procedural reasons) but granted the writ of prohibition, essentially saying the candidate can't

count the same classes to meet two separate requirements, strictly enforcing the statutory words

and requirements, and not implying exceptions and provisos that do not appear in the legislation.

The dissent -- a position obviously rejected by the majority -- argued that by the time of the

election, he would have been actual Sheriff for more than two years anyway, and that should

count toward his "supervisory" experience, an argument similar to what Wenninger makes here.

The opinion implicitly (if not explicitly) rejects Wenninger's argument that the

requirements can be "fudged," that is, "close enough is good enough," and rejects the additional

argument that being in office, even if not legally, counts for "service." The Decision denies

"work experience as Sheriff' being used to make that candidate, or Wenninger here, qualified

under (9)(a) (corporal or higher requirement). There, as here, even if the candidate (or office

holder) could be considered as satisfying (9)(a), he was originally not qualified under (9)(a) or

(b), and therefore not "the Sheriff' legally, could not appoint himself with OPOTA as Sheriff,

and four years later under the O.A.C. his certificate expired completely, whether or not he

27

qualified under either (9)(a) or (b) in the 2004 election. Even if he were qualified to run in 2004

as a valid candidate, his OPOTA certificate expired before he could assume the seat elected to in

that 2004 election. He has no legally valid supervisory experience of corporal or higher to

satisfy O.R.C. 311.01(B)(9)(a) either. (Relator's Exhibits, August 10, 2009, Ex. 6B, Wenninger's

Answer to Int. No. 15). He was in all ways ineligible for the office. Wellington vs. Mahoning

Cty. Bd. of Elections, 117 Ohio St.3d 143, 2008-Ohio-554.

3. The ministerial function of the Common Pleas Court to approve a petition isirrelevant to qualifications to hold office.

Wenninger's lack of qualifications is not saved by the ministerial function of a Common

Pleas Court (as Wenninger argued). A Common Pleas Court judge only reviews the submissions

under O.R.C. 31 1.01(B)(6) and (7) for accuracy and reports such to the Board of Elections. Such

duty has no bearing or purpose whatsoever on whether a candidate actually meets the

requirements necessary under (B)(8) and (B)(9). See State ex.rel. Snider vs. Stapleton (1992), 65

Ohio St.3d 40; and O.A.G. Op. 2001-026. The fact that Wenninger was never eligible to be a

Sheriff is in fact not disputed -- at least not by other facts.

B. Varnau is entitled to the Office and the Writ.

State ex rel. Battin v. Bush (1988), 40 Ohio St.3d 236, states that a writ of quo warranto

is a high prerogative writ and is granted, as an extraordinary remedy, where the legal right to

hold an office is successfully challenged. See also, State ex rel. St. Sava Serbian Orthodox

Church v. Riley (1973), 36 Ohio St.2d 171, 173; State ex rel. Cain v. Kay (1974), 38 Ohio St.2d

15, 16-17. The remedy afforded is that of ouster from the public office. R.C. 2733.14.

Furthermore, quo warranto is the exclusive remedy by which one's right to hold a public office

may be litigated. State ex rel. Hogan, v. Hunt (1911), 84 Ohio St. 143, syl. 1.

To obtain such a writ, one must demonstrate that he "is entitled to the [public] office and

28

that the office is unlawfully held by the respondent in the action." State ex rel. Cain, supra, at 17.

State, ex rel. Williamson v. Cuyahoga C_ty. Bd. of Elections (1984), 11 Ohio St.3d 90, states that

where a relator was the only eligible candidate, the votes cast for relator in the election are the

only ones to be counted. The evidence of Varnau's qualifications for the office and therefore this

Writ is specific and factually supported. (Relator's Motion for Summary Judgment, August 10,

2009, p. 3; Relator's Ex. 15A (Board of Election Records)). All of that was without any

evidentiary objection. The fact that Varnau was the successful and only legally eligible candidate

is not disputed -- at least not by other facts -- and was not challenged, as Wenninger's is.

Wenninger does not now legally hold the office of Sheriff, due to the lack of statutory

qualifications. See this Brief, supra. Because Wenninger did not satisfy the requirements prior

to the 2008 election, and therefore was not a valid candidate for Sheriff in the November 4, 2008

election, he could not and cannot act or perform or be appointed as a peace officer in any

capacity or the office of Sheriff. He is disqualified, and Varnau is entitled to the office, and the

writ. State ex rel. Vana v. Maple Hts. City Council (1990), 54 Ohio St.3d 91.

Proposition of Law No. V:

An opposing qualified candidate for the office of county sheriff is entitled to a writ of quo

warranto where the elected candidate had a statutory "break in service" of four or moreyears which cancels his Ohio Peace Officer Training Academy (OPOTA) certificate.

Wenninger also never legally held the office of Sheriff after the 2004 election.

Wenninger, upon forfeiting the office on January 1, 2001, for lack of educational/supervisory

credentials, started an administrative "break in service" on his Ohio Peace Officer Training

Academy (OPOTA) police certificate that same day. Wenninger, not legally holding office as

Sheriff from January 1, 2001 through January 1, 2005, could not appoint himself as Sheriff with

the Ohio Peace Officer Training Commission (OPOTC). Four years later, January 1, 2005,

29

Wenninger's OPOTA certificate completely expired to the point where Wenninger would have

to re-take the entire OPOTA police academy course from scratch to obtain a new police

certificate. O.A.C. § 109:2-1-12(A)(2), (D)(3) ("Breaks in service.") provides:

(A)(2) No person shall, after January 1, 1989, shall be permitted to perform thefunctions of a peace officer or to carry a weapon in connection with peaceofficer duties unless such person has successfully completed the basic courseand has been awarded a certificate of completion by the executive director.

***

(D) Breaks in service/requirements for update training evaluations:(3) All persons who have previously been appointed as a peace officer and havebeen awarded a certificate of completion of basic training by the executivedirector or those peace officers described in paragraph (A)(3) of this rule who

have not been appointed as a peace officer for more than four years shall, upon

re-appointment as a peace officer, complete the basic training course prior toperforming the functions of a peace officer.

(Emphasis added).

Wenninger's break-in-service is not saved by his appointment as a police officer with the

Ripley Police Department after January 1, 2001. Per Ohio Atty. Gen. Op. 1996-017, a peace

officer cannot be employed by a Sheriff's Office and a municipal police department at the same

time, because that would be a direct legal conflict of interest. When Wenninger filed the

SF400adm with OPOTC, appointing himself as Sheriff January 1, 2001, his appointment with

Ripley P.D. would have had to terminate that same date to prevent any legal conflicts. Any other

conclusion allows the use of an illegal appointment to legitiniize another illegal appointment 7

Wenninger has not held a valid OPOTA peace officer certificate, issued by the OPOTC,

since January 2, 2005. Wenninger's commission expired completely, per the Administrative

Code, on January 1, 2005. Wenninger assumed the same legal status as that of a civilian on

7 Wenninger also swore in his Certification (Relator's Ex. 2A, p. 4-5) that the information on histermination of his prior peace officer employment was correct, but now says it wasn't.(D.Wenninger p. 43-47, claiming the chief of police of his subsequent peace officer appointment

30

January 2, 2005, one day before usurping a second term as Sheriff on January 3, 2005.

Wenninger had not held a valid peace officer certificate for over four years. The filing deadline

for sheriff candidates in the 2008 election was January 4, 2008. Wenninger did not possess a

valid peace officer certificate for a total of three years and two days prior to the filing deadline.

Wenninger's argument that a change in the law (after he allegedly met his

"qualifications") cures his deficiency is moot since his break-in-service exacerbates the same

deficiency, by creating a new one -- no valid peace officer certificate. Even if subsequent

changes in the law applied to retroactively validate his credentials, which would be the

unconstitutional retroactive application of a new law,8 Wenninger still could not take the seat

without a valid peace officer certificate on January 3, 2005, the day he took that term. In fact,

his peace officer certificate was invalid at the time of his qualification as a candidate for Sheriff

in 2004 because of the "break in service" that started on his certificate on January 1, 2001, based

on the difference between R.C. 311.01(B)(8)(a) and/or (b) and the O.A.C. relating to the status of

peace officer certificates - the legal definition of what constitutes a "valid certificate."9

Wenninger "had" a certificate between January 1, 2001, and January 1, 2005, but it was deficient

for all of the above reasons not just the absence of OBR authorization to TTI.

The after-the-fact change in O.R.C. 311.01(B)(9)(b) in December 2003 is a moot issue in

light of his OPOTA certificate completely expiring as a matter of law. Assuming as Wenninger

argued that he was a legitimate candidate in 2004 under that amendment and winning the

election, he still could not assume the position of Sheriff without having that valid OPOTA peace

officer certificate as required by O.A.C. 109:2-1-12(E). He was not initially qualified by not

falsely notarized his official oath of office, without which he could not be a valid peace officer.).$ Ohio Const. Art. II, § 28; U.S. Const., Art. I, § 1, 9.9 In State ex rel. Hayburn v. Kiefer (1993), 68 Ohio St.3d 132, 133, "valid" was not defined forthe purpose of R.C. 311.01. The Court employed the ordinary meaning of the term, which is

31

meeting the requirements of either (9)(a) or (b) in 2000, and thus, started that "break in service,"

on January 1, 2001. Then his OPOTA certificate completely expired four years later, under the

relevant O.A.C. provisions, on January 1, 2005, two days before he assumed his second-term

seat.10 Following that same reasoning again, he would also not qualify to be a valid candidate in

2008, failing to satisfy (8)(a) and/or (b), plus O.A.C. 109:2-1-12(E), without that OPOTA

certificate he lost on January 1, 2005. Since Vamau was the only other valid candidate running

for Sheriff, he is the only legitimate holder of the office.

Nonetheless, "Officer" Wenninger never worked a day or hour during his entire

appointment with the Ripley PD, according to all available evidence. A mere allegation that he

has been acting and performing as Sheriff of Brown County, albeit illegally, does not comply

with any legal requirement. There is no known authority under O.R.C. 311.01(B)(9)(a) or

otherwise that illegal service qualifies one to continue the illegality, or cure it; much less why a

person should be able to profit or benefit from conduct that is not in accordance with the law.

The argument has no direct bearing or effect on the actual legal expiration date of Wenninger's

OPOTA police certificate, January 1, 2005. The O.A.C. provides that one cannot be a sheriff

without a valid peace officer certificate in Ohio, and Wenninger did not obtain another police

certificate after his preexisting one lapsed or expired due to the "break in service."

Varnau is therefore entitled to the writ. See this Brief, supra.

CONCLUSION

Pursuant to R.C. § 2733.06, Varnau brought this action for a writ of quo warranto against

Wenninger whom Varnau claims is unlawfally holding the office of Sheriff. R.C. § 2733.14

states that if a defendant in an action in quo warranto is found guilty of unlawfully holding or

"having legal force." Wenninger's certificate had none.lo Cases relied upon to suggest "substantial compliance" were decided under prior versions of the

32

exercising an office, judgment shall be rendered that he (Wenninger) be ousted and excluded

therefrom. Boards of elections' decisions are totally irrelevant with respect to actions in quo

warranto, particularly where there has been a disregard of the law and statutory authority.

Furthermore, the "duty" upon which Wenninger and the lower Court based a presumption of

actions actually having been taken, do not exist at all in the context presented here: no formal

acted-upon protest. The only thing guaranteeing the integrity of elections, or the risk of a few

local partisans to up-end State law on who can hold an office, is uniform, strict, and statewide

application of the Statutes, and by use of the writ of quo warranto when necessary.

It is therefore respectfully requested that the Judgment of August 16, 2010, of the Twelfth

District Court of Appeals be reversed, and the writ of quo warranto issue removing Appellee

Wenninger from office and instating Appellant Vamau to it; or to make all other orders

necessary and appropriate under the law.

G. EAGLE CO., L.P.A.

Thomas G. Eagle (#0034492)Counsel of Record for Appellant Dennis Varnau3386 N. State Rt. 123Lebanon, Ohio 45036Phone: (937) 743-2545Fax: (937) 704-9826E-mail: eaglelawoffice cr,cs.com

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was served upon Gary A. Rosenhoffer,

302 E. Main St., Batavia, OH 45103, and Patrick L. Gregory, 717 W. Plane, Bethel, OH 45106,

Attorneys for Respondent, by ordinary U.S. mail this A a f November, 2010.

Thomas G. Eagle (0034492)

law that no longer exist, and did not when he first, or most recently, ran for the office.

33

IN THE SUPREME COURT OF OHIO

STATE OF OIIIO, ex rel,DENNIS J. VARNAU,

Plaintiff-Appellant,

-vs_

DWAYNE WENNINGER,

Defendant-Appellee.

SUPREME CT. CASE NO.

10-1655On Appeal from the Twelfth DistrictCourt of Appeals, Brown County Ohio

Court of Appeals Case No.CA2009-02-1 0

NOTICE OF APPEAL OFAPPELLANT, DENNIS J. VARNAU

THOMAS G. EAGLECO., L.P.A.

3386 N. State Rt. 123Lebanoq Obio 45036Phone (937) 743-2545Fax (937) 704-9826

Thomas G. Eagle (#0034492) COUNSEL OF RECORDTHOMAS G. EAGLE CO., L.P.A.3386 N. State Rt. 123Lebanon, Ohio 45036Phone: (937) 743-2545Fax: (937) 704-9826E-mail: eaglelawofficegcs.com

COUNSEL FOR APPELLANT, DENNIS J. VARNAU

Patrick L. Gregory (#0001147)717 W. PlaneBethel, Ohio 45106Phone: (513) 734-0950

Gary A. Rosenhoffer (#0003276)302 E. Main St.Batavia, Ohio 45103Phone: (513) 732-0300

COUNSEL FOR APPELLEE, DWAYNE WENNINGER,

A-1

NOTICE OF APPEAL OFAPPELLANT DENMS J. VARNAU

Now comes the Plaintiff/Appellant, Dennis J. Varnau, by and through counsel, and

hereby gives notice of his appeal to the Supreme Court of Ohio from the Decision and

Judgment of the Twelfth District Court of Appeals for Brown County County, Ohio, entered

in Court of Appeals State of Ohio, ex rel Dennis J. Varnau v. Dwayne Wenninger, Court of

Appeals Case No. CA2009-02-10, 2010-Ohio-3813, entered on August 16, 2010.

hi compliance with S. Ct. R. II, §2(B)(1)(d), Appellant states that this case raises a

substantial constitutional question; and is one of public or great general interest; and is an

appeal of right pursuant to Sup. Ct. R. H, Section 1(t-1)(1), being a direct appeal from an

originalaction filed in the 12`1i District Court of Appeals for Brown County, Ohio, for a writ

of quo warranto.

Respectfully submitted,

G. EAGLE CO., L.P.A.

Thomas ^ + agle (#0034492)Counsel of Record for Appellant3386 N. State Rt. 123Lebanon, Ohio 45036Phone: (937) 743-2545Fax: (937) 704-9826Email: eaglelawofficena cs.com

THOMAS G. EAGLECO., L.P.A.

3386 N. Stste Rt. 123Lebanon, Ohio 45036Phone (937) 743-2545

Fsn (937) 704-9826

I hereby

CERTIFICATE OF SERVICE

certify that a true copy of the foregoing was served upon Gary A.

Rosenhoffer, 302 E. Main St., Batavia, OH 45103, and Patrick L. Gregory, 717 W. Plane,

Bethel, OH 45106, Attorneys for Respondent, by ordinary U.S. mail this 20th day of

September 2010.

Thomas G. Eagle (#0034492)

A_2

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

FILEDSTATE OF OHIO ex rel. COE!.JRTC'.3FAPPF-ALSDENNIS J. VARNAU,

AUG 16 2 Q10 CASE NO. CA2009-02-010Relator,

JUDGMENT ENTRY- vs - -nNA M. MER,4NDA

BROWN COUNTY CLERK OF CdUE3M

DWAYNE WENNINGER,

Respondent.

The above case before the court pursuant to relator's complaint for a writ of quowarranto and the parties' competing motions for summary judgment, it is the order ofthis court that respondent's motion for summary judgment is hereby GRANTED, relator'smotion for summary judgment is DENIED, and relator's complaint for a writ of quowarranto is also DENIED.

Judgment accordingly.

Costs to be taxed to relator.

Robert A. Hendrickson, Judge

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

STATE OF OHIO ex rel.DENNIS J. VARNAU,

Relator,

- vs -

DWAYNE WENNINGER,

Respondent.

IFiLEC^

COURT OF AP^EALS CASE NO. CA2009-02-010

AUG 1. 6 2010 DECISION8/16/2010

TiRlf, M. MERANDABROWN COUNTY t',LEdid( ®= COk1F3E'S

ORIGINAL ACTION IN QUO WARRANTO

Thomas G. Eagle, 3386 N. St. Rt. 123, Lebanon, Ohio 45036, for relator

Gary A. Rosenhoffer; 302 East Main Street, Batavia, Ohio 45103, for respondent

Patrick L. Gregory, 717 W. Plane Street, P.O. Box 378, Bethel, Ohio 45106, for respondent

Per Curiam.

{11} The above cause is before this court pursuant to a complaint for a writ of quo

warranto filed by relator, Dennis Varnau, seeking to oust respondent, Dwayne Wenninger,

from the office of Brown County Sheriff.

{¶2} Varnau is a Brown County resident who ran as an independent candidate for

the office of Brown County Sheriff in the November 4, 2008 general election. Following

A-4

Brown CA2009-02-01 0

Varnau's unsuccessful protest of Wenninger's candidacy, Wenninger, the Republican Party

nominee who has served as Brown County Sheriff since January 1, 2001, won the election

by receiving 62.92% of the vote.'

{¶3} On February 27, 2009, Varnau, Wenninger's lone challenger, filed a complaint

for a writ of quo warranto seeking to oust Wenninger from the office of Brown County Sheriff

and to have himself appointed to that same position. Now pending before this court are the

parties' competing motions for summary judgment.

{14} Summary judgment is a procedural device used to terminate litigation when

there are no issues in a case requiring a formal trial. Forste v. Oakview Const., Inc., Warren

App. No. CA2009-05-054, 2009-Ohio-5516, ¶7. Summary judgment is properly granted only

when: ( 1) there is no genuine issue of any material fact; (2) the moving party is entitled to

judgment as a matter of law; and (3) the evidence submitted can only lead reasonable minds

to a conclusion which is adverse to the nonmoving party. Civ.R. 56(C); State ex rel.

Layshock v. Moorehead, 185 Ohio App.3d 94, 2009-Ohio-6039, ¶46; Levinksy v. Lamping,

Mahoning App. No. 05 MA 71, 2005-Ohio-6924, ¶10, citing Harless v. Willis Day

Warehousing Co: (1978), 54 Ohio St.2d 64, 66.

{¶5} Throughout the pendency of this matter, Varnau insists that Wenninger failed to

meet the necessary requirements found in R.C. 311.01(B) and ( C) "to be a valid candidate in

the 2000, 2004, and 2008 elections," that he "is not legally entitled to hold the office," and

that "no board of elections has ever adjudicated [Wenninger's] actual eligibility" besides

1. Sometime after the March 4, 2008 primary election, Varnau filed a protest with the Brown County Board ofElections challenging Wenninger's candidacy. The Board denied Varnau's protest as being untimely and for notbeing "filed by a member of the appropriate party." This court later affirmed the Brown County Court of CommonPleas decision dismissing Varnau's petition for a writ of mandamus seeking to compel the Board to accept hisprotest as valid. See State ex rel. Varnau v. Brown Cty. Bd. of Elections (Oct. 29, 2008), Brown App. No.CA2008-09-006, accelerated calendar judgment entry.

-2-

A-5

Brown CA2009-02-010

"verifying that [Wenninger] said on an application he met the qualifications '*`"z These

arguments lack merit.

{¶6} "County boards of elections are of statutory creation, and the members thereof

in the performance of their duties must comply with applicable statutory requirements."

Whitman v. Hamilton Cty. Bd. ofElections, 97 Ohio St.3d 216, 2002-Ohio-5923, ¶12, quoting

State ex rel. Babcock v. Perkins (1956), 165 Ohio St. 185, 187. Pursuant to R.C.

311.01(F)(2), "[e]ach board of elections shall certify whether or not a candidate for the office

of sheriff who has filed a declaration of candidacy *^ * meets the qualifications specified in

divisions (B) and (C) of this section." (Emphasis added.) In other words, "a county board of

elections is responsible for determining whether, on particular facts, a person satisfies the

qualifications specified in R.C. 311.01(B) [and (C)] for the office of county sheriff." 2001 Ohio

Atty.Gen.Op. No. 2001-026, paragraph one of the syllabus.

{17} This court "must give effect to the words of a statute and may not modify an

unambiguous statute by deleting words used or inserting words not used." State v. Bess,

Slip Opinion No. 2010-Ohio-3292, ¶18, quoting State v. Teamer, 82 Ohio St.3d 490, 491,

1998-Ohio-93. In turn, contrary to Varnau's claims, and in light of the clear statutory mandate

provided by R.C. 311.01(F)(2), we find it readily apparent that the Brown County Board of

Elections previously determined Wenninger satisfied the necessary requirements of R.C.

311.01(B) and (C) to be elected sheriff in 2000, 2004, and 2008. In fact, following Varnau's

unsuccessful protest of Wenninger's candidacy, the Board sent Varnau a letter dated May 9,

2008 that states, in pertinent part, the following:

2. The crux of Varnau's argument is that Wenninger did not have the "educational credentials qualifying him tobe an Ohio sherifP' upon taking office on January 1, 2001, that this alleged deficiency caused Wenninger to havea "break in service" from January 1, 2001 to January 1, 2005, thereby disqualifying him from holding the officefollowing the 2004 election, and that, as a result of his "break in service," he "did not possess a valid peaceofficer certificate" prior to the 2008 general election making his current term a mere continuation of the "illegality."

-3-A-6 ^r ^ , ^

Brown CA2009-02-010

{78} "The Board further believes that it has been put on notice that the qualifications

of Dwayne Wenninger have been challenged under [R.C.] 311.01, Stare decisis and the

Board of elections is tasked with determination of the sheriffs qualifications and this Board by

necessity will conduct and independent investigation into Dwayne Wenninger's qualifications

to run for the office of county sheriff." (sic)

{79} There is nothing in the record to suggest the Board did not conduct such an

investigation prior to accepting Wenninger as a qualified candidate, nor is there any evidence

to suggest the Board engaged in fraud, corruption, abused its discretion, or that it clearly

disregarded any of the applicable statutes and legal provisions. Cf. State ex rel. Shumate v.

Portage Cty. Bd. of Elections (1992), 64 Ohio St.3d 12 (discussing board of elections' duty

when qualifications of candidate for sheriff are challenged); State ex rel. Ross v. Crawford

Cty. Bd. of Elections, 125 Ohio St.3d 438, 2010-Ohio-2167, ¶17.

{110} As stated by the Ohio Supreme Court, "[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." State ex rel. Kelly v. Cuyahoga Cty. Bd. of Elections (1994),

70 Ohio St.3d 413, 414; see, also, State ex rel. O'Beirne v. Geauga Cty. Bd. of Elections, 80

Ohio St.3d 176, 181, 1997-Ohio-348; State exrel. Herdman v. Franklin Cty. Bd. of Elections,

67 Ohio St.3d 593, 596, 1993-Ohio-24. Therefore, because the Board previously determined

Wenninger satisfied the necessary requirements to be elected Brown County Sheriff in 2000,

2004, and 2008 as statutorily required by R.C. 311.01(F)(2), we find that, based upon the

record before us, there is no genuine issue of material fact, reasonable minds can reach only

one conclusion which is adverse to Varnau, and Wenninger is entitled to judgment as a

matter of law. Accordingly, Wenninger's motion for summary judgment is granted and

Varnau's motion for summary judgment is denied. Varnau's application for a writ of quo

-4-z1-7

Brown CA2009-02-010

warranto is also denied.

(¶11) Judgment accordingly.

YOUNG, P.J., BRESSLER and HENDRICKSON, JJ., concur.

This opinion or decision is subject to further editing by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court's web site at:http://www.sconet.state.oh.us/ROD/documents/. Final versions of decisions

are also available on the Twelfth District's web site at:http://www.twelfth. courts.state.oh.us/search.asp

^^.- 5 A-B ma •^:x

IN THE COURT OF APPEALS OF BROWN COUNTY, OHIO

FILEDWUpT OF APPEALS

STATE OF OHIO ex rel. CASE NO. CA2009-02-010DENNIS J. VARNAU, AU

G 1 7 ENTRY DENYING RELATOR'SRelator, OBJECTION TO AND MOTION TO

-yNA K M_HANTRIKE RESPONDENT'S MATERIAL INvs. BROWN Couf.rt`V CLEw oF W-UPRORT OF PARTIAL REPLY TO

: RELATOR'S MOTION FOR SUMMARYDWAYNE WENNINGER, JUDGMENT

Respondent.

The above cause is before the court pursuant to an objection to and motion to

strike respondent's material in support of partial reply to relator's motion for summary

judgment filed by counsel for relator, Dennis J. Varnau, on August 21, 2009,

Upon consideration, the motion is DENIED. The court notes that it was

unnecessary to consider any of the materials objected to by relator in arriving at the

decision in this matter.

IT IS SO ORDERED.

The Constitution of the United States

Preamble

We the People of the United States, in Order to fonn a more perfect Union, establishJustice, insure domestic Tranquility, provide for the conunon defence, promote thegeneral Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, doordain and establish this Constitution for the United States of America.

Article. I. - The Legislative Branch

Section 1 - The Legislature

All legislative Powers herein granted shall be vested in a Congress of the United States,which shall consist of a Senate and House of Representatives.

Section 2 - The House

The House of Representatives shall be composed of Members chosen every second Yearby the People of the several States, and the Electors in each State shall have theQualifications requisite for Electors of the most numerous Branch of the State

Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty fiveYears, and been seven Years a Citizen of the United States, and who shall not, whenelected, be an Inhabitant of that State in which he shall be chosen.

(Representatives and direct Taxes shall be apportioned among the several States whichmay be included within this Union, according to their respective Numbers, which shall bedetermined by adding to the whole Number offree Persons, including those bound toService for a Term of Years, and excluding Indians not taxed, three fifths of all otherPersons) (The previous sentence in parentheses was modified by the 14thAmendment, section 2.) The actual Enumeration shall be made within three Years afterthe first Meeting of the Congress of the United States, and within every subsequent Termof ten Years, in such Manner as they shall by Law direct. The Number of Representativesshall not exceed one for every thirty Thousand, but each State shall have at Least oneRepresentative; and until such enumeration shall be made, the State of New Hampshireshall be entitled to chuse three, Massachusetts eight, Rhode Island and ProvidencePlantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight,

Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five andGeorgia three.

When vacancies happen in the Representation from any State, the Executive Authoritythereof shall issue Writs of Election to fill such Vacancies.

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies conunitted on the high Seas, and Offensesagainst the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerningCaptures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for alonger Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppressInsurrections and repel Invasions; . .

To provide for organizing, arming, and disciplining the Militia, and for governing suchPart of them as may be employed in the Service of the United States, reserving to theStates respectively, the Appointment of the Officers, and the Authority of training theMilitia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (notexceeding ten Miles square) as may, by Cession of particular States, and the acceptanceof Congress, become the Seat of the Govemment of the United States, and to exerciselike Authority over all Places purchased by the Consent of the Legislature of the State inwhich the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, andother needful Buildings; And ,

To make all Laws which shall be necessary and proper for carrying into Execution theforegoing Powers, and all other Powers vested by this Constitution in the Government ofthe United States, or in any Department or Officer thereof.

Section 9 - Linrits on Congress

The Migration or hnportation of such Persons as any of the States now existing shallthink proper to admit, shall not be prohibited by the Congress prior to the Year onethousand eight hundred and eight, but a tax or duty may be imposed on such Importation,not exceeding ten dollars for each Person.

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Casesof Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

(No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census orEnumeration herein before directed to be taken) (Section in parentheses clarified bythe 16th Amendment.)

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports ofone State over those of another: nor shall Vessels bound to, or from, one State, be obligedto enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriationsmade by Law; and a regular Statement and Account of the Receipts and Expenditures ofall public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding anyOffice of Profit or Trust under them, shall, without the Consent of the Congress, accept ofany present, Emolument, Office, or Title, of any kind whatever, from any King, Prince orforeign State.

Section 10 - Powers prohibited of States

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marqueand Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coina Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Lawimpairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any hnposts or Duties onImports or Exports, except what may be absolutely necessary for executing it's inspectionLaws: and the net Produce of all Duties and hnposts, laid by any State on hnports orExports, shall be for the Use of the Treasury of the United States; and all such Laws shallbe subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops,or Ships of War in time of Peace, enter into any Agreement or Compact with anotherState, or with a foreign Power, or engage in War, unless actually invaded, or in suchimminent Danger as will not admit of delay.

Article. II. - The Executive Branch

Section 1- The President

The executive Power shall be vested in a President of the United States of America. Heshall hold his Office during the Term of four Years, and, together with the Vice-Presidentchosen for the same Term, be elected, as follows:

The Electors shall meet in their respective states, and vote by ballot for President andVice-President, one of whom, at least, shall not be an inhabitant of the same state withthemselves; they shall name in their ballots the person voted for as President, and indistinct ballots the person voted for as Vice-President, and they shall make distinct listsof all persons voted for as President, and of all persons voted for as Vice-President and ofthe number of votes for each, which lists they shall sign and certify, and transniit sealedto the seat of the govemment of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House ofRepresentatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, ifsuch number be a majority of the whole number of Electors appointed; and if no personhave such majority, then from the persons having the highest numbers not exceedingthree on the list of those voted for as President, the House of Representatives shall chooseimmediately, by ballot, the President. But in choosing the President, the votes shall betaken by states, the representation from each state having one vote; a quorum for thispurpose shall consist of a member or members from two-thirds of the states, and amajority of all the states shall be necessary to a choice. And if the House ofRepresentatives shall not choose a President whenever the right of choice shall devolveupon them, before the fourth day of March next following, then the Vice-President shallact as President, as in the case of the death or other constitutional disability of thePresident.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and ifno person have a majority, then from the two highest numbers on the list, the Senate shallchoose the Vice-President; a quorum for the purpose shall consist of two-thirds of thewhole number of Senators, and a majority of the whole number shall be necessary to achoice. But no person constitutionally ineligible to the office of President shall be eligibleto that of Vice-President of the United States.

Amendment 13 - Slavery Abolished. Ratified 12/6/1865.

1. Neither slavery nor involuntary servitude, except as a punishment for crime whereofthe party shall have been duly convicted, shall exist within the United States, or any placesubject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

Amendment 14 - Citizenship Rights. Ratified 7/9/1868.

1. All persons bom or naturalized in the United States, and subject to the jurisdictionthereof, are citizens of the United States and of the State wherein they reside. No Stateshall make or enforce any law which shall abridge the privileges or immunities of citizensof the United States; nor shall any State deprive any person of life, liberty, or property,without due process of law; nor deny to any person within its jurisdiction the equalprotection of the laws.

2. Representatives shall be apportioned among the several States according to theirrespective numbers, counting the whole number of persons in each State, excludinghidians not taxed. But when the right to vote at any election for the choice of electors forPresident and Vice-President of the United States, Representatives in Congress, theExecutive and Judicial officers of a State, or the members of the Legislature thereof, isdenied to any of the male inhabitants of such State, being twenty-one years of age, andcitizens of the United States, or in any way abridged, except for participation in rebellion,or other crime, the basis of representation therein shall be reduced in the proportionwhich the number of such male citizens shall bear to the whole number of male citizenstwenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or elector of President andVice-President, or hold any office, civil or military, under the United States, or under anyState, who, having previously taken an oath, as a member of Congress, or as an officer ofthe United States, or as a member of any State legislature, or as an executive or judicialofficer of any State, to support the Constitution of the United States, shall have engagedin insurrection or rebellion against the same, or given aid or comfort to the enemiesthereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States, authorized by law, including debtsincurred for payment of pensions and bounties for services in suppressing insurrection orrebellion, shall not be questioned. But neither the United States nor any State shallassume or pay any debt or obligation incurred in aid of insurrection or rebellion againstthe United States, or any claim for the loss or emancipation of any slave; but all suchdebts, obligations and claims shall be held illegal and void.

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of

this article.

Amendment 15 - Race No Bar to Vote. Ratified 2/3/1870.

1. The right of citizens of the United States to vote shall not be denied or abridged by theUnited States or by any State on account of race, color, or previous condition ofservitude.

2. The Congress shall have power to enforce this article by appropriate legislation.

PREAMBLE

PREAMBLE

We, the people of the State of Ohio, grateful toAhnighty God for our freedom, to secure its blessingsand promote our common welfare, do establish thisConstitution.

rendering of a verdict by the concurrence of not lessthan three-fourths of the jury.

(185 1, am. 1912)

SLAVERFAND INVOLUNTARY SERVITUDE.

§6 There shall be no slavery in this state; nor involun-tary servitude, unless for the punishment of crime.

(1851)ARTICLE I: BILL OF RIGRTS

INALIENABLE RIGHTS.

§1 All men are, by nature, free and independent, and

have certain inalienable rights, among which are thoseof enjoying and defending life and liberty, acquiring,possessing, and protecting property, and seeking andobtaining happiness and safety.

(1851)

RIGHT TO ALTER, REFORM, OR ABOLISH GOVERNMENT, AND

REPEAL SPECIAL PRIVILEGES.

§2 All political power is inherent in the people. Gov-emment is instituted for their equal protection and ben-efit, and they have the right to alter, reform, or abol-ish the same, whenever they may deem it necessary;and no special privileges or immunities shall ever begranted, that may not be altered, revoked, or repealedby the General Assembly.

(1851)

RIGHT TO A.S.SEMBLE.

§3 The people have the rigbt to assemble together, in apeaceable manner, to consult for the common good; toinstruct their representatives; and to petition the Gen-eral Assembly for the redress of grievances.

(1851)

$EARLFGARMSJSTANDING'ARMIES,'MLITARYPOWER.

§4 The people have the right to bear arms for theirdefense and security; but standing armies, in time ofpeace, are dangerous to liberty, and shall not be keptup; and the military shall be in strict subordination tothe civil power.

(1851)

TRIAL BYJURY.

§5 The right of trial by jury shall be inviolate, exceptthat, in civil cases, laws may be passed to authorize the

RIGHTS OF CONSCIENCE; EDUCATION THE NECESSITY OF

REIJGIONAND KNOWLEDGE.

§7 All men have a natural and indefeasible right toworship Ahnighty God according to the dictates oftheir own conscience. No person shall be compelledto attend, erect, or support any place of worship, ormaintain any form of worship, against his consent; andno preference shall be given; by law, to any religioussociety; nor shall any interference with the rights ofconscience be permitted. No religious test shall be re-quired, as a qualification for office, nor shall any per-son be incompetent to be a witness on account of hisreligious belief,• but nothing herein shall be construedto dispense with oaths and affirmations. Religion,morality, and knowledge, however, being essential togood govemment, it shall be the duty of the GeneralAssembly to pass suitable laws, to protect every reli-gious denolnination in the peaceable enjoyment of itsown mode of public worship, and to encourage schoolsand the means of instruction.

(1851)

WRIT OF HABEAS CORPUS.

§8 The privilege of the writ of habeas corpus shall notbe suspended, unless, in cases of rebellion or invasion,the public safety require it.

(1851)

BAIL

§9 All persons shall be bailable by sufficient sureties,except for a person who is charged with a capital of-fense where the proof is evident or the presumptiongreat and except for a person who is charged with afelony where the proof is evident or the presumptiongreat and who where the person poses a substantialrisk of serious physical harm to any person or to thecommunity. Where a person is charged with any of-fense for which the person may be incarcerated, thecourt may determine at any time the type, amount, and

THE CONSTiCUT[ON OF THE STATE OF OHIO 3

ARTICLE I: BILL OF RIGHTS

ing the place to be searched and the person and thingsto be seized.

(1851)

No IbIPRISUNb1ENT FOR DEBT. .

§ 15 No person shall be imprisoned for debt in anycivil action, on niesne or final process, unless in casesof fraud.

(1851)

REDRESS FOR INJURYJ DuE PROCESS.

§16 All courts shall be open, and every person, for aninjury done him in his land, goods, person, or reputa-tion, shall have remedy by due course of law, and shallhave justice administered without denial or delay.

Suits may be brought against the state, in such courtsand in such manner, as may be provided by law.

(185 1, am. 1912)

No HEREDITARY PRIVILEGES.

§17 No hereditary emoluments, honors, or privileges,shall ever be granted or conferred by this State.

(1851)

SUSPENSION OF LA(PS.

§18 No power of suspending laws shall ever be exer-cised, except by the General Assembly.

(1851)

25'MZNENT DONL47M

§19 Private property shall ever be held inviolate, butsubservient to the public welfare. When taken in timeof war or other public exigency, imperatively requir-ing its immediate seizure or for the purpose of makingor repairing roads, which shall be open to the public,without charge, a compensation shall be made to theowner, in money, and in all other cases, where.privateproperty shall be taken for public use, a compensationtherefor shall first be made in money, or first securedby a deposit of money; and such compensation shallbe assessed by a jury, without deduction for benefits toany property of the owner.

(1851)

DAMACES FOR WRONGFUL DEATH.

§ 19a The amount of damages recoverable by civil ac-tion in the courts for death caused by the wrongful act,neglect, or default of another, shall not be limited bylaw.

PROTECT PRItATE PROPERTY RIGHTS LN (iROUND WATER,

LAEES AND OTHER WATERCOURSES.

, § 19b. (A)Theprotectionofthe rights ofOhio's propertyowners, the protection of Ohio's natural resources, andthemaintenance of the stability of Ohio's economyrequire the recognition and protection of propertyinterests in ground water, lakes, and watercourses.

(B) The preservation of private property interestsrecognized under divisions (C) and (D)of this sectionshall be held inviolate, but subservient to the publicwelfare as provided in Section 19 of Article I of theConstitution.

(C) A property owner has a property interest in thereasonable use of the ground water underlying theproperty owner's land.

(D)An owner of riparian land has aproperty interest inthe reasonable use of the water in a lake or watercourselocated on or flowing through the owner's riparianland.

(E) Ground water underlying privately owned landand nonnavigable waters located on or flowingthrough privately owned land shall not be held in trustby any governmental body. The state, and a politicalsubdivision to the extent authorized by state law, mayprovide for the regulation of such waters. An owner ofland voluntarily may convey to a governmental bodythe owner's property interest held in the ground waterunderlying the land or nonnavigable waters located onor flowing through the land.

(F) Nothing in this section affects the application ofthe public trust doctrine as it applies to Lake Erie orthe navigable waters of the state.

(G) Nothing in Section le of Article lI, Section 36 ofArticle Il, Article VIII, Section 1 of Article X, Section3 ofArticle XVIII, or Section 7 of Article XVIII of theConstitution shall impair or limit the rights establishedin this section. (2008)

POWERS RESERVED TO THE PEOPLE

§20 This enumeration of rights shall not be construedto impair or deny others retained by the people, and allpowers, not herein delegated, remain with the people.

(1851)

(1912)

THE CONSTITUTION OF THE STATE OF 01-HO 5

ARTICLE II: I.EGISLATIVE

repassed in the manner prescribed by this section forthe repassage of a bill.

(185 1, am. 1903, 1912, 1973)

REPEALED. REFERRED TO THE SIGNING OF ALL BILLS AS'D

JOINT RESOLUTIONS BYTHE PRESIDING OFFICER OF EACH

HOUSE.

§17(1851, rep. 1973)

IZEPEALED. REFERRED TO THE STYLE OF LAW.4.

§18

(1851,rep.1973)

REPEALED. REFERRED TO THE EXCLOSION OF SENATORS

AND REPRE.SENTATIVES FROM APPOLN"TiHENT TO ANY CIVIL

OFFICE OF TIIIS S'TATE. . . .

§19(185 1, rep. 1973)

TERM OF OFFICE, AND COMPENSATION OF OFFICERS IN

CERTAIN CASES.

§20 The General Assembly, in cases not provided forin this constitution, shall fix the term of office and thecompensation of all officers; but no change thereinshall affect the salary of any officer during his existingterm, unless the office be abolished.

(1851)

CONTE.STED ELECTIONS.

§21 The General Assembly shall determine, by law,before what authority, and in what manner electionsshall be conducted.

(1851)

l1PPROPRIATIONS.

§22 No money slrall be drawn from the treasury, ex-

cept in pursuance of a specific appropriation, made bylaw; and no appropriation shall be made for a longerperiod than two years.

(1851)

IMPEACIIMENTS; HOWLNSTTf7JTED AND CONDUCTED.

§23 The House of Representatives shall have the solepower of impeachment, but a majority of the memberselected must concur therein. Impeachments shall betried by the Senate; and the senators, when sitting forthat purpose, shall be upon oath or affirmation to do

justice according to law and evidence. No person shallbe convicted without the concurrence of two-thirds ofthe senators.

(1851)

OFFICERS LIABLE TO DMPEACHMENTJ C'ONSEQUENCES.

§24 The governor, judges, and all state officers, maybe impeached for any misdemeanor in office; but judg-ment shall not extend further than removal from of-fice, and disqualification to hold any office under theauthority of this state. The party impeached, whetherconvicted or not, shall be liable to indictment, trial,and judgment, according to law.

REPEALED. WHEN SESSIONS SHALL COMMENCE.

§25

(1851)

(1851,rep.19.73)

LAWS TO HAVE A UNIFORM OPERATION.

§26 All laws, of a general nature, shall have a uniformoperation throughout the state; nor, shall any act, ex-cept such as relates to public schools, be passed, totake effect upon the approval of any other authoritythan the General Assembly, except, as otherwise pro-vided in this constitution.

ELECTlONAND APPOLFEVENT OF OFFICERS; FILLING

Vi1CANCIES.

§27 The election and appointment of all officers, andthe filling of all vacancies, not otherwise provided forby this constitution, or the constitution of the UnitedStates, shall be made in such manner as may be direct-ed by law; but no appointing power shall be exercisedby the General Assembly, except as prescribed in thisconstitution; and in these cases, the vote shall be taken"viva voce."

(1851, am. 1953)

RETROACTIVE LAWS.

§28 The General Assembly shall have no power to

pass retroactive laws, or laws impairing the obliga-tion of contracts; but may, by general laws, authorizecourts to cany into effect, upon such terms as shallbe just and equitable, the manifest intention of parties,and officers, by curing omissions, defects, and errors,in instruments and proceedings, arising out of theirwant of conformity with the laws of this state. (1851)

12 THE CONSTITU't'ION OF THE STATE OF OHIO

ARTICLE IV: JUDICIe1L

ARTICLE IV: JUDfCIAL

3UDICIAL POWER VESTED IN COURT.

§I The judicial power of the state is vested in a su-preme court, courts of appeals, courts of commonpleas and divisions thereof, and such other courts infe-rior to the Supreme Court as may from time to time beestablished by law.

(1851, am. 1883,1912, 1968, 1973)

ORGA.I7ZATION A.ND JURISDICTION OF.SUPREME COURT.

§2 (A) The Supreme Court shall, until otherwise pro-vided by law, consist of seven judges, who shall beknown as the chief justice and justices. In case of theabsence or disability of the chiefjustice, thejudge hav-ing the period of longest total service upon the courtshall be the acting chief justice.If any member of thecourt shall be unable, by reason of illness, disability ordisqualification, to hear, consider and decide a causeor causes, the chief justice or the acting chief justicemay direct any judge of any court of appeals to sit withthe judges of the Supreme Court in the place and steadof the absent judge. A majority of the Supreme Courtshall be necessary to constitute a quorum or to renderajudgment.

(13)(I) The Supreme Court shall have original jurisdic-tion in the following:

(a) Quo warranto;(b) Mandamus;(c) Habeas corpus;(d) Prohibition;(e) Procedendo;(f) In any cause on review as may be necessary to its

complete determination;(g) Admission to the practice of law, the discipline of

persons so admitted, and all other matters relatingto the practice of law.

(2) The Supreme Court shall have appellatejurisdictionas follows:

(a) In appeals from the courts of appeals as a matterof right in the following:

(i) Cases originating in the courts of appeals;(ii) Cases in which the death penalty has been

aff mred;(iii) Cases involving questions arisuig under the

constitution of the United States or of thisstate.

(b) In appeals from the courts of appeals in cases of

felony on leave first obtained.(c) In direct appeals fron the courts of common pleas

or other courts of record inferior to the court ofappeals as a matter of right in cases in which thedeath penalty has been imposed.

(d) Such revisory jurisdiction of the proceedings ofadministrative officers or agencies as may beconferred by law;

(e) In cases of public or great general interest, theSupreme Court may direct any court of appealsto certify its record to the Supreme Court, andmay review and affirm, modify, or reverse thejudgment of the court of appeals;

(f) The Supreme Court shall review and affirm,modify, or reverse the judgment in any casecertified by any court of appeals pursuant tosection 3(B)(4) of this article.

(3) No law shall be passed or rule made whereby anyperson shall be prevented from invoking the originaljurisdiction of the Supreme Court.

(C) The decisions in all cases in the Supreme Courtshall be reported together with the reasons therefor.

(1851, am. 1883, 1912, 1944, 1968, 1994)

ORGANIZATION AND JURISDICTION OF COLTRT OFAPPEALS

§3 (A) The state shall be divided by law into compactappellate districts in each of which there shall be acourt of appeals consisting of three judges. Laws maybe passed increasing the number ofjudges in any dis-trict wherein the volume of business may require suchadditional judge or judges. In districts having addi-tional judges, three judges shall participate in the hear-ing and disposifion of each case. The court shall holdsessions in each county of the district as the necessityarises. The county commissioners of each county shallprovide a proper and convenient place for the court ofappeals to hold court.

(13)(1) The courts of appeals shall have original juris-diction in the following:

(a) Quo warranto;(b) Mandamus;(c) Habeas corpus;(d) Prohibition;(e) Procedendo(f) In any cause on review as may be necessary to its

complete determination.

(2) Courts of appeals shall have suchjurisdiction asmay be provided by law to review and affirm, modify,

20 THE CONSTITUTION OF THE STATE OF OHIO

§ 305.03

6Cfret urpro.,pecuvv res9},matLruEn¢rgeircy inln9ni .aa.a^csunIcd".dciilrl,lt-b(.ri iulf e. t ( III uitturidpoliti(JPrusrc IL2attornev-Itrsidrncv n:lutrtmeutSmi-sLiwI:ne ."1'rrxxurcr .

(:OUNTIES

Generally

I)ivis'iuns (13) tmd ( D) of RC 30,5.02 set forth the procednresby whiuh un unespired countv elective of7ice shall be tilled bvappointment: Ohlo Etbics Contmissiun Advi.vury Opinion Nu.2000-03 (2000).

'Che officu of cvmntv conmtissionernav not be declared varantwhen the incnmbent is serionslv ill and nnable to fidlill the dntiesof o$ice but is not absent fiont the county: OAG No. 85-062(1985).

When a vacancy in any of the offices nnmed in RC § 305.02(A)occm-s because ofthe deatli, re.signa5on, or inalnlity to titke dteoffice of an oHicer-electwhose tenn has not vetbegnu, tJte personappointed to take such office by the central coanmittee of thepoli5cal party with whlclt sudi officcr-elect was affiliated sh.dlhold office until a successor is elected and quahfted, and usucressor shall be elected at the next general election for st.rte andcounty officers: OAG No. 84-063 (1984)

Acting officersDivision (A) of RC § 102.02 does not reqtrire a person who

serves as an acting county officer, pursuant to RC § 305,02(F), tofile a financial disclosure statement: Ohio Ethics CommissionAdvisory Opinion No. 2000-03 (2000).

llivision (F) of RC §.30.5.02 provides that the countv emmnis-sioners may appoint a person to hold any countv elective office asan acting officer, and perform the duCies of the office between theoccurrence of the vacancy and the time when the officer ap-pointed by the central committee, pursuant to RC § 305.02(B) or(ll), qualifies :md takes tlte ofHce: Obio Ethics CommissionAdvisory Opinion No. 2000-03 (2000).

Pursuant to RC § 305.02(F), where the office of coroner isvacant, the board of county cornlnissioners Inay appoint a personto serve as aetlng coroner and to perforrn the duties of the coronerbetween the occurrence of the vacancy and the time.when theofficer appointed by the central committee qualifies and takesoffice: such acting eoroner need not be a resident of the countvheserves, but mcist be properly certified to practice medicine inaccordance with RC Chapter 4731.: OAG No. 90-070 (1990).

Effect of prospective resignadonIn the absence of an actual relinquishment of office plior to the

effective date stated in a prospective resignaHon, no vacancyocctus in the office of clerk of courts by reason of the presentationof a prospective resignation ptior to the effective date thereof:1963 OAG No. 572 (1963).

Emergency intetim successorsA board of county cotntnissioners has no authotity to adopt a

resolution_ which designates by title, emergenev interim sneces-sors to cany out the func8ons of the boatd in tjte event that anvemergency situa6on exists witltinthe county or State, and two orrnore positions on the board of county commissioners becomevacant or two or more comrnissioners are unavailable to pmformtheir dnties: OAC No. 86-083 (1986).

Federal civil cights law

ElecHon of a ward chairman by a political pariy's centr.demmnittee does not constitute state action rrterely because statelaw reqtures tbe cornmittee to fill vacancies that occur in conntyoffices held by party members. When a committee engnges ininteroal affairs, such as electing a wardcbeiman, distinct bomtheir official govermnenttd duties, they do not con6nue to actunder crolor of ststte law: Banchy v. Republiean Party of HamiltonCounty, 898 172d 11.92 (Crtlt Cir, 1990).

Grant of power to central comtnittee of political partyThe provisions of R( §'30.5.02, eflective Octuber 12, 1961

which anthurize the ntunbers of the centnil cvmmittee of ypolitical p u h to fill vetc... cies occurrrn)„ inter uliac in the office ofdvrk of conrte of a c:nmh; cunter uffcinl power upon t6emembers of tbe aeuti:d eominitttw, aml this wioex:ition of povretto this pusitiou nmkcn it a public olfice and is u cuns6tutionyl,nrunt of powcr by the generul axsembl)c S'tate ex rel. Ilaye V.jenuings', 17;3 Ohiu St_.3At, 19 Obio Op_ 2d 314, IN2 N.bl2d &lg(1962), lcitetl in State ex rcl McCurdv v. I)eM.uoribus, 9 ObiaApp. 2d 28Q 38 Ohio Op_ 2d 336.224 N.E.2d.3.5:3 (1967); andmState ex rel. (.aut v 6av, 38 Ohio S't. 3d 15, 67 Ohio (fi. 2d 33,309 N.E.2r1 86(1 (1974)_]

Prosecuting attwney

-Residency requirementTlre onlv residency requirement fitr one evho is tu be appointed

to tht-olTicr of cocntv prosecntiug attmnev is thtd he be aresidentof the state of Ohio firr oue veur: OAG No. 68-072 (1968).

Sunshine lawThe convening of t7te ennutvi central etumnittee for the putpo:e

of cronductingpurely inten'ial partv adf tin, nurelated to thecommitteei dnties of m Iking :tppointments to vacant pub&aolfrces,Isnnta nteettn5 asclelrnedb)RC§ 131-22(13)(2)-TImH,I;C § 121.22 does not appN" to snclr a gatheringr OAG No. 80{)g3(1980).

A cotmtvi central eomntiBee of a political party is a publie body:md its ntembers are pnblic officials for pwposes of RC § 121.22,The cvnvening of tlle mentbers of the county central committeepursuant to BC § 305.02 is a'tneeting° asdefined by EC§ 121.22(B)(2), even wlten the number of members presentisfewerthan tbe majmity of the total ntembership. A county eenhalcwmmlttee mav dtscvss tlte appointment of a person pursuanttnits dn5es uncler RC § 305.02 inesecutive session under RC§ 121.22(G). However, final voting on suclh appointment mustbeheld in a ptb6c nteeting: OAG No. 80-083 (1980).

Treasurer

For the reason that there is no provision made in the lawtoperrnit an appointment to be made for the purpose of fillingvacancies in the office of cotmty treaswer spanning more tltxupart of one term, the cotmtvi cenfral comtnittee shall appointsomeone to fill suc•h second vaciutcc if it occttrs because of denthbefore the ternt began, pivsuant to subsections (A) and (B) ofBC§305.02: OAG No. 69-052 (1969).

When a re-elected coanh^ treasurer dies niore than fifteen da)'9before the end of Itis term of office, the vac•attcv shall be filledpursuant to RC § 305-02(A): OAG No. 69-052 (1969).

§ 305.03 Absence of county officers; officedeemed vacant.

(A) NVbenever any coonty officer fails to perfortn tltednries of office for ninety consecutive days, except in enseof sickness or injmv as provided in divisions (B) and (C) oftliis section, the of$ce shall be deerned vaeant.

(B) Whenever mtv county officer is absent because ofsiclaress or injuty, tlte ofAce' shall eaase to be filed wit6the board of county comntissioners a physician's certificateof the officer's siclmess or injnry. If such certifieate is notfiled v,dth the board within ten days after the expirat3onofnmety c•onsecnttive days of absenc•e, the offiee shall bedeetned vacant.

(C) Whenever a connty officer files a physician's cettif-icate under division (B) of this section, bnt conBnues tobeabsent for an additional thirty days conintencing imtnedt'ately after the last day ou which this certificate may be .filed under division (B) of this section, the office shall bedeenied vacant.

A-19

70

tee of political party}ectivcOctober t$ 1961e eentral cumnrittee of ag, inter alia, in the office ofollicial puwer upon the

d this anue.eatiou ofpuwerice aud i.s u cuu.stinrtionalblv: Statr ex rel. lluyes V.p. 2d :314, 182 N.F; 2d 546Iv '. 1)eMaiurilms, 9 ObinN.E?d :35:3 (1967); and in

-c1 15, 67 Ol do Op 2d 33,

mc who ie' to lbe appuinted ''..uevisthntlie6eare.sident ^'.; No 68-073 (1968).

amnrlttee for the pmposes&dcs, nnrelated to thertments to vacant pubbc ^.RC § 1.2122(13)(2). Thus,^tlreriug: OAG No. 80-083

ic,d party is a public bodypurposes of RC § 121.22,county central cominitteefing' as definecl by RC '.x of rnembe'.s present isrber.sltip. A oounty centralit of aTerson pnrsuantto.utive session under RCuch appointment must be083 (1980).

ision made in the law ton the purpose of fillingrrer spanning more thaucommittee shall appoint- occvrs because of'deathections (A) and (B) of RC

es more than fifteen daysie vacaney shall be filled69-052 (1969),

inty officers; office

r fails to perfonn the,e days, except in caseivisions (B) and (C) ofned vacant.- is absent because ofanse to be 81ed withphysician's certificatesueli certificate is notafter the expiration ofr, the office shall be

es a p}tysic•ian's certif-n, bnt continues to be Szmunencing innnedi-is certificate may be-in, the office shall be

71 BOARD OF COUNTY COMMISSIONERS - GENERALLY

(D) If at any tlnre two county comutissioners in acounty are absc^rt mid have filed aphysicizms cert7ficateunder division (B) of this section, the couuty coroner, inaddition to performing the duties of coroner, shall serve ascounty eomnnxs'imier no61 at Ieast one of thr ahsentcommissioners returus to ufRce or imtil the officr of atleast one of the abseut connnissioners is cleemed vacautunder this sectiou aud the vac:mcy is filled- if'the corunerso requests, the coroner shall be paid a per diem rate fortlre coroners servicr as a cominissioner. Thatper (lieiiirat'e shall be the ammW salary specified by law for a connNcommissioner of that cotmty whose ternt of of9ice beg.m in'the same year as the coroners tern) of office begmn,divided by tire number ol days in the year.

While the coroner is serving as a connty commissionerthe coroner shall be considered an actiug coonty cominis-sioner and shall perforin the cluties ofthe officc. of countvcommissioner untfl at least one of the absent commission-ers returns to office or nntil the ofhice ol atleast one of theabsent commissioners is deemed vacant. Before assumingthe office of acting cotmty comtnissioner, the coroner slralltalcean oath of office as providecl in sections •3.22 and :3.2:3of the Revisecl Cacle. The coroners seiviee as an actingcounty commissioner does not constitute the }iolding of anincompatible public office or employmeiit in violation ofany statutory or cotmnon law prohibition agsonst thesimultaneous holding of more than one pnblic• officer oremployment.

The coroner sball give a new bond in the same atnourrtand signed and approved as provided in section 305.04 ofthe Revised Code. The bond shall be conditioned for thefaithful discharge of the coroners duties asacting countycommissioner and for the paytnent of any loss or damagethat the county may sustain bv reason of the coroner'sfailure in those dnties. The bond, along with the oath ofoffice and approval of tlre probate jadge indorsed on it,shall be deposited and paid for as provided for the bondsin section 305,04 of the Revised Code.

(E) Any vacancy declared under this section slrall befilled in the manner provided by section 305.02 of theRevised Code,

(F) Thissectionslrallnotapplytoacountyofficerwhile

in the active militaly setvic•e of the United States.

HISTORY: GC §§ 2397-1, 2397-2; 119 v 81, §§ 1, 2; Bureau ofCode Revision, 10-1-53; 141 v H 734 (Eff 4-15-86); 147 v S 208. Eff3-30-99.

CASE NOTES AND OAG

Constitutionalit,GenerallySheriff

INDEX

ConstitutionalityThe p-ovision of RC §.305.0.3, that, whenever a coanry officer

is absent frotn the county for ninety consecutive days, except intlre case of sickness orinjnry or while being in the active militnrvservice of the United States, his office shall be deemed vacant mrdthe eounty commissioners shall declare a vac.tncy to exist, is avalid exercise of legislative power: (decided nnder fbnner ancJo-gous sectimi) State ex rel. Trag_o v. Evans, 166 Ohio St. 269, 2 OhioOp. 2d 109, 141 N.E.2d 665 (1957),

Generally .

Revised Code § 305.03, as amended, is, by its tenns, self-executing. Upon thehappening of the enumerated events, the

§ 305.04

office is then vacauC wlthout resort tu anv legal proceediug ssichas yuu warrunto: State ec rel. Rattin r. t3ush, 40 Ohio St3c1236,5:3:3 NEZd.3(I1 (1938).

By virtne of the provLs9ons of CC: §§ 2397-1 and 2397-2 (RC305.03) (119 v 81), whenever a couuty oilicer shall bc ubsent

fiom the counh- lia ninehconsecutree dms, except iu cuse oisickueo' or iujuiv erideuced by physiclan-s cerA6ente vs thereiureynired, his uflicr .vhall Ise deenmd vacant and the cuuntycnonnissiouers sh:dl declare u vacunev to exls't in such offiee:(declded imdcr former analoguus sec6un) S[ate ex reL ClinKer v.Whitc, 14:3 Ohiu St. 175, 38 Obio 0p. 104,54 N.E.2d 3(18 (199-d)-

The ulfice olouunh' cnnunis.vieuer nr,rv nut be declnred vacuntwbrn t6r incwnhent is s'eriutulv ill mid unable to fidfill the duHesufuffic" butis uot ahsent Gum the county: (de(idetl mulerfirrweraualoguns.scctlon) OAC No 85-062 (1985).

SheriffWhere a wcnne.c in the ofhcr, of s'herit7 u declured by

resolutiun uf. the cvuwtv commissioners under RC g:305 (1.3, smhcac:urev sho'dd he filled bv the bu,trcl of connhcornwissionersnnder R(: § 311.0:3: (decided under fornrer un:dogons sectlan)1955 OAC; No. 5984 (1955).

§ .305.04 Bond of county comrnissioners; oathof office.

Before entering upon the discltarge of Iris duties eachcounty cominissioner shall give bond, signed by a bmrdingor snrety crompany anthorized to do bnsines-s in this state,or, at Iris op8ml, by two or tnore freeholders ]raving realestate in the value of donble the atnount of the bond overand above all encvinbrances to the state, in a stnn not lessthan five thonsand dollars, the snrety company to beapproved by the probate judge of the county, the bondcooditioned for the faithfitl discharge of the commission-ers official duties, and for the payment of anv loss ordmnage that the county rnay susttin by reason of his failurein such cfuties. Such bond, with the oatlr of office andapproval of the probate judge indorsed thereon, shall bedeposited with the cottnty treasver and kept in his office.The expense or preniimn for sacli bond shall be paid bythe board of connty commissioners and charged to thegenerzil firnd of the county. Stich surety may be disclrargedin the rnanner provided by secCion 2109.18 of the RevisedCode for the release of sureties of gttardians.

HISTORY: RS § 844; S&C 244, 249; S&S 86; 51 v 422, § 6; fi5 v 78;82 v 148; GC § 2399; 112 v 111; Bureau of Code Revision. Eff10-1-53.

Cross-References to Related SecHons

Absence of cuuntv of6cers: office deemed vacant, RC § 305.03

Ohio Constitution

Otith of office, OConst art XV § 7.

ALR

Public office]s bond as sabject to forfeiture for nialfeasance inoffice. 4 ALR2d 1348.

Blanket bondAssnning that the reqnirement can be fulfilled which calls for

a hond to be flled with a certain ofTtcial, all officers, deputies,clerks, assishmts, bookkeepers and employees of the offices of apolitical sulbdivision who are required to file a bond, and who mavbe propeiiy covered by a hl:mket bond in accurd:mce with RC§ 3.06, may be covered nnder the same blanket bond: oAG No.65-057 (1965). -

262

the Revised Code that aor an offense of violenooa crorrectional institution

rtment or otherwise haslie departnent, receivesunnty pursuant to sectionsed Code that a personged witb an offense ofat was cominitted in thennty jail or workhouse orcnstody of the sheriff, orpolice or other chief lan,pal corporation pursuanted Code that a personged with an offense ofat was cotnmitted in theI or workhouse of thatise has escaped from theoration, the prosecutingof an offense of violenceat person of'the person'subsequent apprehension,iven as soon as possibletedepartment, sheriff, orhe municipal corporationDr in pel-son, exceptthat,fails to give the notice of

n's last known telephonethe notice of escape in

n address, the notice ofictim at his last knownreceipt requested.The

;iven as soon as possibleand shall be given in theescape.fails to give any notice

ne froln civil liability forn or property that mightlure to give notice:

r 145 v H 571. Eff 10-6-94.

^d indiNldual, governmental

icer or entity for failure toitially dangerous individual

Section

311,01 Qualifications for sheiiffi basic training c<ing education.

31102 Bond.311.03 Disability or absence.

'fs.311.04 Deputy sherif^311.05

311.06311.07311,08311.09311.10311.11311.12311.13311.14311.15

depufies.Conduct of

Location of sheiiff's office.General powers and duties of sheriff.Exeention and retuoi of processIndorsement on writsForeign execution (locket.

Cashbook.

CHAPTER 311: SHERIFF

irse; continu-

Inspecfion of books; certiffe[I copies of entiies.Books to be delivered to successor.Moneys, books, and papers to be delivered to succ•essor.Process, goods, and prisoners to be delivered to succes-

sor.311.16 Annual report of sherifT.311.17 Fees.[311.17.1] 311.171 Fees to pay costs of registering sex offenders

311.18311.19311.20311.21311.22311.23311.24

and child-victim offenders ancl providing commu-nity noti8cation.

Mileage fees on foreign process.Fees of appraisers.Allowance for prisoners.Fees in cases relating to dower,Service of process.Adjournment of court.Repealed.

[SI3ERIFFS' STANDARD CAR-MARKING AND UNIFORMCOMMISSIONI

311.25 Sheriffs' standard car-marking aud uniforin conimission,311.26 Organization.311.27 No compensation.311.28 Duties.[311.28.11311.281 Use of sheriff's uniform and vehicle mark-

ings prohibited.311.29 Contracts to perform police functions; payments; deputy

sheriffs.311.30 Parking enforcement unit.

[311.30,1] 311-301 Repeeled.

311.31 Voluntarytnotor vehicle decal registration program.311.32-311.34 Repealed.311.37 ltansient vendors to file information and bond; inunio-

ipal regnlation.311.41 Criminal records and incompetency checks of applicants

for license to carry concealed liandgun.311.42 Sheriff -s conceiled handgun license issuzmce expense

fund.311.99 Penalties.

§ 311.01 Qualifications for sheriff; basictraining course; continuing education.

(A) A sheriff shall be elected quadrennially in eachcomrty. A slreriff sllall ]rold office for a term of four years,beginning on the first Monday of January next after thesheriff's election.

(B) Except as otherwise provided in this section, noperson is eligible to be a candidate for sheriff, and noperson shall be elected or appointed to the office of

sherifl, unless that person meets all of the followingrequirements:

(1) The person is a citizen of the United States.(2) The person has been a reside-nt of the comtty in

which the person is a candidate for or is appointed to theof3ice of sberiffi-for at least one year innnediately priortothe qualification date.

(3) The person lias the qnalifications of an elector asspecified in section 3503.01 of the Revised Code and hascotnplied with all applicable election laws.

(4) The person has been awarded a high school diploinaor a certificate of bigh scLool equivalence issued forachievement of specified minimnm scores on the generalednca5onal development test of the Ainerican c•omicil oneducation-

(5) The person has not been convicted of or pleadedguilty to a felony or any offense involving tnoral turpitudeunder the laws of' th9s or any other state or the UnitedStates, and has not been convicted of or pleaded guilty toan offense that is a tnisdetneanor of the first degree underthe laws of this state or an offense onder the laws of anyother state or the United States that carries a penalty thatis snbstantially equivalent to the penalty for a misde-meanor of the first degree under the laws of this state.

(6) The person has been fingerprinted and has been thesubject of a search of local, state, and national fingerprintfiles to disclose any criminal record. Such fingelprints shallbe taken under the direction of the adrninistrative judge ofthe court of common pleas who, prior to the applicablequalification date, shall notify the board of elections, boardof county cornmissioners, or county central committee ofthe proper political party, as applicable, of the judge'sfindings.

(7) The person has prepared a complete history of theperson's places of residence for a period of six yearsitnrnediately preceding the qualification date and a com-plete history of the person's places of employment for aperiod of six years irnmediately preceding the qualificationdate, indicating the name and address of each employetand the period of time employed by that etnployer. Theresidence and employrnent histories shall he filed with theadministrative judge of the court of common pleas of thecounty, who sliall forward them with the £mdings underdivision (B)(6) of this section to the appropriate board ofelections, board of county comtnissioners, or county cen-tral cotnrnittee of the proper political party prior to theapplicable qualification date.

(8) The person tneets at least one of the followingconditions:

(a) Has obtained or held, within the four-year peliodending immediately plior to the qualifiea6on date, a validbasic peace officer certificate of trainiug issued by theOhio peace officet- training cornmission or has been issueda certificate of training purstrant to section 5503.05 of theRevised Code, and, within the fotrr-year period endingimmediately prior to the qualification date, has beenemployed as an appointee pursuant to section 5503.01 ofthe Revlsed Code or as a full-time peace officer as definedin section 109.71 of the Revised Code performing Yies

263

§ 311.01 (X)UNTIES

related to Ilie enforcemeut nlstatntes, o'dinanees, orcudes;

(b) llas obttined or beld, widiio fJie tlnee ycm periodending iimucdi dclv prior to the qnalilicat;ou eLde, a validbasic peace officcr certidicatr oitranung issued bv theOluo peace ollicer trainin,K couunission unel has beeneu;ployed foi at lea,st the last threc ts.ns prior-to theqmaldic:diuu drtc as aii;ll hme laweolo;ecmeutolhcer, asdefined in division (A)(I1) of sectiou 3901.01 uftheRevised C;ode, perlunuing dnties related to the enforce-incut olst:dntes, orditnwces, or codes. 1

(9) The persmn weets at least one of the folluwingcroudition.s:

(;) Ilasaleanthvu,yemsofsnpeiv;cmyexperieuceusape mc officer .rt the rank of corporul or aaove, or has beeuappointed pnrsuant to section 5503.01 of the Revi.sedCode au(1 .se rved at the r nik of serge-ant or above, tn thehve vcm' period encling imntcdiately p'iar to the cpialifi-cati<m date;

(b) H:is annpleted satisftctorily at Icacst two yeo.rs ofpost semndary° education or the equivalent in semester orquarter honrs in a college or universihy authorizecl toconfer degrees bv the Obio board of regents or thecoinparable agency ofanother state in which the college oruniversity is located or in a school that holds a certificateof registratiou issued by the state board of crvee.r collegesand schools nnder Chapter :3:3:32. of the Revised Code.

(C) Persons who Ineet the requirements of division (B)of this section, except the requirement of division (B)(2) ofthis sectlon, may take all actlons otherwise necessmy tocomply with division (B) of this section. If, on theapplic•able qnalif'icmtion date, no person has Inet all therequirements of division (B) of this sect-ion, then personswho have complied with aiid mezt the reqniretnents ofdivision (B) of this section, except the reqnirenent ofdivision (B)(2) of this section, shall be considered qnalifiedcandidates under division (B) of this secfion.

(D) Newly elected sheriffs shall attend a basic• trainingcoarse conducted bv the Oltio peace officer trainingcoinmission pm'suauatto clivision (A) of section 109.50 ofthe Revised Code. A newly elected slreriff shall c•onipletenot less tham two weeks of this course before the firstMondav in Jmlua,y next after the sheriffs elecCion. Whileattending the basic training cotnae, a newly elected sheriffmay, with the approval of the board of coanty connnis-sionei'.s, receive compensa6on, paid for froln fund,s estab-lished by the sheriff's connty for this purpose, in the sametnanner and mnounts as if carrying ont the powers anddaties of the office of sltetiff.

Appointed sheriffs shall attend the flrst basic trainingeonrse cronclueted bc the OI»o peace officer trainingconunission pursuant to division (A) of sec6on 109.80 ofthe Revised Code within six months following the date ofappointment or election to the office of sheriff. Whileattending the basic training course, appointed sheiiffsshall receive t'egular compensation in the same niannerand amounts as if ca;rying ont their regnlm' powers anddnlies.

Five days of instrnction at the basic Uaining course shtillbe considered eqnal to one week of worlc The costs ofconclncting the basic training corvse and the costs oftne,ds, lodging, and travel of appointed and newly electeclslieriffs attending the c•omse shall be paid from state fnndsapprop;iated to the connttission for this purpose.

(P.) h; each cdeud,tr ye v each sherif'f shall attend .^.'rat least sixteen bonrslidl n l t ^dfsneccss y co ;p e e o contia

ednc.ttiou appr<roed imder dtvisiou (B) of sec:tion109.80^the Revised Code. A sherill who receives a waiver

of'econtimnug eclucation requmement I?oin the seorpy

is piinder division (C) o{ section 111980 oi the Revised n

thf b l di d ili[ lib dy or er gooccause o s. > )r oinec ca eauseshalcoinplete tbe;erp;nen;rnt cd Ihe earliest t9me aftortheiil ld uat(s.ist li ltv or cause ten n

(F)(l) Eachpersonwhoisucandidateforelecttloatoorwho is nuder consideration fbr appoiutmett to tho offol shc;iffshall svew beforetheadrninistra6vejudgeofthec•ourt of connuon plea.s as to the tnith of any infonnatiea

'the person pros ulc s to verify the person s qualifications fot 1tLe o17ic-e. A petson wlio violates this reqnirementis gaf^ k

f thi 2921 13f f l f de Rr sect on . o eo a si ication nn evisedCode ,(2) Eacl; bonrcl of elect;ons shall certify whether otnpt

a candidate for the office of slceriff who has filed adeclaration of candidacy, a statement of candidacy, oradeclaratioo of intent to be u wlite-In candidate meets the Iqualifications specified in divisions ( B) and (C) of tltissecfirn;.

(C) The office of a sherff who is required to mmp) ywith (livisiou (D) or (E) ofthfs section and who fes tosuccessfiillv complete the conrses pursuant to those dih,sions is hereby deented to be vacunt.

(H) As used in this secYion:(1) "Qualification date" means the last day on whioha

candidate for the office of sheriff ca.n file a declaration ofcandidacv, a statement of candidacy, or a declarationpfintent to be a write-in candidate, as applicable, in the caseof a ptimary eleetion forthe office of sheriff; the last dayon which a person niay be appointed to fill a vacancyinaparty nomination for the office of sheriff nnder Chaptar z:351.3. of'the Revised Code, in the case of a vacancy in 6e `office of slreriff; or a date thirty days after the day on wldchavacarsv in the office of sheriff occars, in the case of znappointment to sach a vacancy nnder section 305.02 of theRevised Code.

(2) "Newly elected sheiiff" means a person wlio didnotItold the offic•e of she;iff of a coturty on the date the persocwas elected sheriff of that county.

HISTORY: RS § 1202; S&C 1403; 55 v 150; 93 v 351; GC § 2823; :I I6 v PtIl, 184; Burexu of Code Revisioq 10-1-53; 141 v H 683 ^3-11-87); 146 v S 2(Eff 7-1-96); 146 v H 670 (Eff 12-2-96); 146 r0 y351 (Eff 1-14-97); 148 v H 283. Eff 9-29-99; 150 v H 75, § 1,eff. ^12-9-03.

The effective date is set bv section 3 of I1,B. 75.

Cross-References to Related SecHons

Anmi21 fireamt reqnalification pro"nam, RC § 109.80.1.Appointed and newlv elected shei9ffs to attend basic

conr.se: confinninn edacation;waivec RC § 109.80.13.Raoks to be delivered to vnccessor RC: §.311

\zs.

vuing

.C on4 uts for food medicnl othc.r selices, coolc, RC § 341.90Inspcction of bool.s, eei t;fied copies of entriRC § 311.12.Sal.aoof sheriff RC; § 325.0&She;iff not eliqble to be county aoditor, RC § 319.07.Sheriff to hold but one office, 6C: §.3.11.

Ohio Administrative Code

Office of the attorney general, Ohio pence officercomnussion-

Biuic training program. OAC ch. 1(19:2-1.Fnemns requalifdcatlon progiani. OAC ch. 109:2-13.

Yulice and fire pen.sion fund -

A-22

t sherillsball attend,ytdcen hours of continnint (B) of sec•tion t09.80ofreceives a waiver of theit from the comrnission80 of the Revised Codeu other good cause shall

earliest tirnc after ^e

ididate for election tn ortpoint;or•nt to the offlcentitilstrntivejudge ofthentth of any informationerson's qualifications forhis rcquirernent is guilty13 of tlie Revised Code.11 certffy whether or notherif'f' who has filed anent of candidacy, or a-iu candidate meets thens (B) and (C) of this

) is required to complyection and who fails topursnant to those divi.

tn t.

the last day on whieh acan file a declaration ofacy, or a declaration ofs applicable, in the ease

of sheriff,the last day`edtofill avacancyinaisherifi'under Chaptercase of a vacancy in thes after the day on whichc•cars; in the case of anler section 305.02 oftlte

ns a person wllo did noty on the date the person

150; 93 v 351; GC § 2823;t, 10-I-53; 141 v H 683 (Efl670 (Eff 12-2-96); 146 v H

9-99; 150 v H75, § 1, eH•

3 of H.B. 75.

ms

t. RC § 109.80.1.to attend haslc trainfng

aer, BC § 109.80.§ .311.13.

.dces; cook, RC § 341.20entrles, RC § 311.12.

o,RC§.319.07.11.

o peace officer trainiag

):2-I.AC cb. 109:2-1:3.

]7eath benefit limd OAC ch. 742-19.Nlernberslup OAC edi. 742-1.

Comparative Lagisladon

She^CA-Cal Gov Code § 26fi1111FL-FIa Stut. § 903)1IL--55 1LCS 5136001IN-Btmrs Ind. Code Ami. § :3fi-2-13-2gy-KRS § 70.01(1MI_-MCLS 51.68NY-NY C:LS County § 650PA-16 P.5'_ 4 1201

SHERIFF § 311.01

ALRCoostruction and eflect ofconstitutional or s'tattrtory pruvision

disqualifying one for public oflice because of previous tcnureof affice. 59 ALR2d 716_

power to appoint sheriff for term cotnmenciog at or afterexpiration of tcrni appoiuting olficer or body. 75 AL112c1

1287.

CASE NOTES AND OAG

Compadbllityol pnsitiunsCompensztlonCounty court bailifl'EligibilityProMbitlonVillage mayor

Wvver

INDEX

Compatibility of positionsA person who is serving as slieriff or deputy sheriff of a cotmty

may not serve at the same thne as clerk or deputy clerk of a countyconrt. The clerk of a county court, whether lre is the clerk ofcourts ae6ng as clerk of the county court under RC § 1907.10.1or whether he has been appointed clerk under that section, mayuot appoint the sheriff or persons who are servfng as deputysheriffs, to serve as deputy clerks for the purpose of accepting baileud appearance bonds: 1961 OAC No. 2066 (1961).

CompensationWhen a countv sheriff's term of office pursuant to BC311.01(A) includes only a part of a particular calendar yeac the

sheriff is en5tled to a prorated portion of the annual compensa-tion fixed for that year pursuant to RC §§ 325.06 and 325.18,which portion should be calculated to reflect the number of daysin that calendar year which are included in the slte-riff's ternn ofoffics (1980 OAG No. 80-054 and 1941 OAG No. 3955, p. 529ovemrled): OAG No. 90-023 (1990).

Revised Code § 311.01(D) does not entitle a newly electedsheriff who attends a training course before taking office to beeompensated for performing the duties of sheriff. However, RC§ 311.01(D) does provide that the costs of such person's tuition,meals, lodging and travel shall be paid from state funds appro-priated for this purpose: OAG No. 89-034 (1989).

County eowt bailiffA county court bailiff is a law enforcement officer for purposes

of RC § 311.01(B)(8)(b). Opinion No. 2005-045 (2005).

EIIgibility&ohibition was available to prevent the board of elections frmn

Plaeing the name of a candidate on the ballot when the candidatedid not satisfy the requirements of RC § 311.01(B): State ex rel.Craigv. Scioto County, 117 Ohio St..3d 158, 882 N.E.2d 435, 2008Ohio 706, (2008).

RC § 311.09(B)(9)(a) has an unequivocal me:infng and cannotbe liberally constnted. A ctmdidate is ineligible withont there4»edtwo years of supervisory expetience at the rank of

corpor:d or above: Wellinf,rton v. Mahoning County Bit of Elec•-tions, 117 Ohio St. 3d 143, 882 N.E.2d 420, 2008 Ohio 554,

(2008).Relator w:u not eligible to be a candid:dc• for sheril9where he

fhilc'<l to comply with RC §311 0(B)(7) by providiug a completeeniployment history; Stute ex reL Grounda v. linclcint„ County Bd.of Elecfion.s, 117 Ohio St. :3d 116, 881 N.hL2d I252, 2008 Ohio566, (2008).

Peace oflicer tr:uuing is not accepttbk to crntstitute course(nredit nnder RC §311 0l(1)(9)(b) beutrne it is already inclu(le(Iin dte eligibilitv reduirentcnt.s in RC §.311.o1(B)(8)_'I'hus theboard of electiorrv erred bvi certifyin}; the petltioner u.v a write-incandidate for s'heiff: Statc ex rrl. Welliugton ¢ Mahoniu}{CountyBd. of Electiunx, 120 Ohia St. 3d 198, 897 N_E2d 641, 2008 Ohlos5f0,(2005).

A change in the educational requirements for candidates fors'heriff was not applied in an nnconstitutionally retroactive in:m-ner State v. Wennftlger, 125 Ohio Miec. 2d 55, 798 N.E.2d 68.2003 Ohio 5521, (CP 2003).

A candidate for sheriff rrtust qnalify nnder R(: §:311.01(B)(9):State ex rel. Wolfe v Delaware Cotmty Bdt of Elect]ons, 88 OhioSt.3cl 182, 724 N.E.2d 771, 2000 Ohio 294, (2000).

The sapervisorv experience reqeirement under R(:§ 311.01(B)(9) is con.stitutional: State ex rel. Watson v, fituniltonClounty Bd. of Elections, 88 Ohio St..3d'239, 725 N.E.2d 255,2000 Ohio 318, (2000).

Any law enforcement training evidenced bv a certificate vali(Iduring the pertinent three-vear period complies with RC§ 311.01(B)(8): State ex rel. (ihance v. Malioning C:ounty Bd. ofElections, 75 Ohio St. 3d 42, 661 N.E.2d 697, 1996 Ohio 253,(199(i).

Revised Code § 311..01(B)(9) does not require a candidate tohave lreld a rank specifying superofsor status. Perfonnance ofdnties which involve supervision rnay lie sufficient: State ex rel.Hawkins v. Pickaway County Bd. of Elecflons, 75 Olrio St. 3d275,662 N.E.2d 17, 1996 Ohio 221, (1996).

Any law enforcement training evidenced by a cetfificnte validdttring the relevant tiine perfod is sufficient compliance with RC§ 311.07.(13)(S): State ex rel. Haybum v. IGefer, 68 Ohio St. 3d132, 624 N.E.2d 699 (1993).

Altlrough respondent never completed the Ohio pece officertraining council's basic training course, where the recrorci substan-tiates that lie received numerous certificates of specific trainingdtning his tenure as deputy sheriff and sheriff, as an auxilimvpofice officer for a county police department, and as a comttvauviliary depnty sherif3, respondent wtts qualified for his officeunder RC § 311.01(B)(8): State ex rel. Yeaglev v. Harden, 68Olhio St. 3d 136, 624 N.E.2d 702 (1993).

Revised Code §:311.01(B)(9) tnquires ffve years full-time lawenforceinent expetience, not full-time law enforceinent employ-ment: State ex rel. Altiere v. Trumbull County Bd. of Elections, 65Ohio St.:3d 164, 602 N.E.2d 613 (1992).

A countv board of elections has not onlvthe authoritv to reviewRC § 311.01(B)'s qttaHffcatian requirements for the office ofsheriff, but also the duty to do so whenever those qualificationsare ch:illenged in a protest: State ex rel. Shumate v. PortageCounty Bd. of Elec•tions, 64 Ohio St. 3d 12, 591 N.E.2d 1194(1992).

Bomds of'elections, not the administmtive judge of the coart ofcommon pleas, should evaluate a candidate i qualifica6ons underRC § 311.01. The administratn,e jndge has only a ministerial dntyto notify the board of the results of the Bngeiptint se:uch andfoiward the residence and employment histories under BC§.311.01(B)(6) and (7): State ex rel. Snider v. Stapleton, 65 OhioSt 3d 40, 600 N.E.2d 240 (1992).

An administra5ve judge of a coiut of common pleas is notatrtlrorized to certify to the crountp board of elections that acandidate for the office ofcomtty .sheriff satisfies the quallfcatimix set foith in RC § 311.01: OAG No. 2001-026 (2001).

Pursuant to RC §.3,11.01(F)(2), a county board of elections isreSponsible for determining whethec on particular facts, a person

§ 311.02 COUNTIES

satisfies the qualifications spcc:ified in RC §311.01(B) for theoflice of county shedfi' oAG Nn 2d701-026 (2001)-

Expcricnce as u memberof thc lenislafive authority of a village,publre school teuchei; or trustc of a nou-profit cooporation clocsuut qu.dlfy as law cnfmceinent eperienee foi pinposes of HC§311.01(B)(9). ( ollege or othe post-second.ay educatiou doesnot quulify as law enforcement experienee for pniposes of HC§ 311111(13)(9) OAC Nu 92-001 (1992).

Experience as i camtY probafion ofhcu qualifies as luwenfuiceinent experience for pmposes of RC § 311.01(13)(9):OAG No_ 88-048 (1988).

As used in BC § 311.111(13)(8), the phruse wlid certificate oftraininl, u a law enforceinent office" is not hmited to a peaceofficc, cerfiflcate earnc-d pursn.wt to HC § 1119.77: OAC No.88-048 (19S8).

A pe'son who has helcl, within three years prior to thecpralificafion date, a valid certificute of trainingfor ;r posltion as alaw enforcement offfcer compensated with governmental funs,meets the reqnirement for the position of countv sheril3set forthin RC: § 311.01(B)(8). BC § J11.01(B)(0) does not requfre thatsucli person actnallv htu been compensated with governmentalfimds cithar for training or for perfbrmance of his duties as a lawenfmcement officer: OAG No. 88-048 (1988).

ProhibitionLaehes barred a prohibition claim against die board of ele,c-

fions; Carver v. Stanldewicx, 101 Ohio St. 3d 256, 804 N.E 2d 419,2004 Ohio 812, (2004).

Village mayorA village mayor is not a"pcztce officer,° as defined in RC109.71(A), for purposes of RC § 311.01(B)(9)(a): OAG No.

2001-026 (2001).A village mayor is not a`peace officer,' as defined in RC

§ 109.71(A), for puiposes of RC § 311.01(B)(8)(a): OAG No.2001-026 (2001).

For purposes of RC § 311.01(R)(8)(b), a village Inayo) is a lawenforcement officer, as defined in RC § 2901.01(A)(11), vestedwith cluties related to the enforcement of statutes, ordinances,and codes. Whether a village mayor is employed as a lawenforceinent officer on afull-time` basis, tts is required by RC§311.01(B)(8)(b), presents a question of fact that must beresohed on a case bv-case basis by a county board of elections:OAG No. 2001-026 (2001).

AVaiverIf an individual who lacked the certificafion and ezpeience

requirelnents of RC §.311.01(B)(8) and (9) for qualificution assheliff in 1988 was elected or appointed to the office of sheriff in1988 pursuant to Section 3(uncocGfied) of Am. Sub. H.B. 683,appeazing in 1985-1986 Ohio Laws, Part III, 5503, 5509 (eff.March 11, 1987), and successfully completed the reqcdrred basictraining course in a tirnely manner- the requirements of BC§:31.1.01(B)(8) and (9) have been waived for that indivddual.Theie are no time limitations on the wriver; it applies to the 1992election and all subsequent elections: OAG No. 90-112 (1990).

§ 311.02 Bond.

The sheliff shall, within ten days after receiving Itiscommission and before the first Monday of J:nruary nextaftei- liis election, give a bond, signed by a bonding orsurety company authorized to do businecs in this state andto be approved by the board of county commissioners, or,at the option of such slleriff, sig,ied by two or morefreeholders having real estate in the v:ilne of double theaunount of the bond, over and above all encmnbrances tothe state, in a sum not less than five thousand nor morethan fifty thousand dollars, which sum sllall be fixed by theboard, and such bond shall be conditioned for the faithfulperformance of the duties of his office. The expense or

266

premium fbr such boncl shall be paid by the board andcharged to the geneatl hmd of the county. Such bondswith the approval of the board mrd the oath of offieerec uued by sectlons 3.22 and 3.23 of tlie Revised Code,aunS Section 7 of Article XV, Ohio Constitntfon, indorsedthereon, shall be filed with the county auditor andkeptlnhis office.

The boat-d mav lequire thc sheriff at aoy titne dunnghis telm of officc, to give additional sureties on his bond,or to give a new bond.

No lndge or clerk of aury c•olnt or attoniey at law shall bereceived as snrety on such bond.

If the sheriff fails to give a bond within the timereguired, or fails to give additional sureties on such bondor a uew bond within ten days after he has receivedwritten notice that the board so reqnires, the board shallcleclare the office of sucli sheriff vacant.

HISTORY: RS §§ 1203 to 1206; S&C 190, 191, 1404; 51 v 301,§§ 1-7; 55 v 150, 3; GC §§ 2824 tn 2827; 112 v 111; Bureaa otCode Revision, 10-1-53; 129 v 1365. Eff' 10-12-61.

Cross-References tu Related Sections

Filling vacwucyc RC: § 3t15.02.

Ohio Constitntion

Oath of office, OCcnst art XV, § 7.

ALR

Liability of police officer or his bond fbr injuries or death of tlurdpersons rescdting from operation of motor vehicle by subordinate. 15 ALR3d 1189.

Personal liability of policeman, sheriff, or other peace officer, orbond, for negligently causing personal injury or death. 60ALR2rl H73.

Personal liability of policeman, sheriff, or similar peace officer orIris bond, for injury suffered as a result of failure to enforeelaw or arrest lawbreaker. 41 ALR3d 700.

Public officer's bond as subject to forfeiture for malfeasanee moffice. 4 ALR2d 1348.

§ 3 11.03 Disability or absence.

When the sheriff, by reason of absence, sickness, orother disability, is incapable of serving any process required to be served, or by reason of interest is incompetent to serve it, the court of common pleas, if in session, or,

if not in session, a judge of such court may appointasuitable person to serve such process or to perform thednties of sheriff during the continuance of such disabilitySncli appointee sliall give such bond as the court or judgereqtrires, conditioned for the faithfid performance of Ivsdnties, and take the oatb of office.

I3ISTORY:RS§ 1208;S&C539,1402;29v410,§§ 1,2;50v3I1,§ 35; 84 v 208; GC § 2828; 121 v 343; Bureau of Code Revision;10-1-53; 126 v 205 (Eff 1-1-56); 129 v 582 (625) (EH 1-10-61); 129y1:365. Eff 10-12-61.

Cross-References to Related Sections

Filliug cacancy, RC § 305.02.

CASE NOTES AND OAG

INDEX

ceneedp.AutlLritv of cmmN cnmmLsicmerrDrzah ol Inrumbenl shedff

Generally d ^vGeneral Code §§ 2828 and 10 (RC §§ 31103 an

A-24 ^

VI-1=fUrmer

§ e ba`.gPpoini

^end oflectedL 32

`f'AuthriWhe

6solutfnyacanc)

under I

iteathWhe.

pccurs i=6f the t

9 e offif^C firs

pven-m>lhe occ;.'tElectim

i?' Whe;"s-elect"4wi;ich ksDC6 pe?:appoinbsztiuezpfn

y

M" a

(A)eanin

Code.f (B)(1

may apthe c

^luch tcomI

pon tlrk's Icase

^eriffervingusent

eputie^putiedge cCputy.

^Z) b$Qde, tNsion

OSEon.

^`(EC) (1rlff

¢smanm, o

ou;^ny.(2)(a)

ejiuty^On

i) Pl.^;.(4) at

on ;

§ 731.32 MUNICIPAL CORPORATIONS

Delay by injunction

If an election upon an initiative ordinance i.s delayed by aninjrmetion, the tiine oisuch delay is to-be deducted; and aneleotion within the period, rs thus ascert;uned, and within themne fixed by statute, is valid: Cincimiati v. Hillenbrand, 103 OhioSt. 286, 133 N.E. 556 (1921).

Initiative petition

-Compliance with statutes

The initiative petition compliul with the fnll title and textprovisions of RC § 731.31: State ex rel. Hazel v_ GuyahogaCounty Bd. of Elections, 80 Ohio St. 3d 165, 685 N_E 2d 224,1997 Oluo 129, (1997).

Liberal construction

A slight misstatement in the acreage listed in an ordinance didnot require relection of a referenduin petiBon. The Ohio Consti-tution provides for liberal construction of provisions for inunicipalreferendum: Shrtztnan v. Madison County Bd. of Elections, 93Ohio St. 3d 511, 757 N.E.2d 297, 2001 Oltio 1624, (2001).

Map requirement

-Compliance with statuteAn initiative petifion of a zoning ordinance does not fail to

comply with the requireinent of BC § 731.31 that it contain a fulland correct copy of the title and text of the ordinance, by itsfailure to include a copy of the map or any tnore reference to itthan die letter designation of the several areas thereon: Drocktonv. Bd. of Elections of Cuyahoga Cormty, 16 Ohio Misc. 211, 45Ohio Op. 2d 173, 240 N.E.2d 896 (1968).

Municipal petitions

Neither RC § 3519.05 nor 3519.06 requires circulator com-pensafion or elector-lmowledge stateinents in municipal initlativeand referendum petitions: State ex rel. Sinay v. Sodders, 80 OhioSt. 3d 224, 685 N.E.2d 754, 1997 Ohio 344, (1997).

Rezoning

-Compliance with statutesDue to the increasing eotnplexity of zoning and planning

ordinances, a proposed ordinance's mere reference by streetlocation and applieation nutnber to an area of land projected forrezon(ng meets the requirement of RC § 731.31 that a referen-dum petition contain the number and a full and conect copy ofthe title of the tneasute sought to be referred: State ex rel.Neighborhoods v. Franklin County Bd. of Elections, 1996 OhioApp. LEXIS 4806 (1996).

Signatures

Under RC § 731.31 it is essential to the validity of a signatureon a petition of an elector of a municipality where registrationsare by precincts that sucli signature be followed by the correctprecinct of the signer: Lynn v. Supple, 166 Ohio St. 154, 1 OhioOp. 2d 405, 140 N.E.2d 555 (1957).

It is inandatory that the precinet of a signer of a referendutnpetitiou, proudded for by municipal charter, be placed after hissignature where the charter provision provides that as to signing,circulation, form and affidavits such petition be governed bygeneral law and the failure to do so invalidates the petition: Lynnv. Supple, 75 Ohio L. Ab. 444, 134 N.E.2d 93 (App 1956).

Failure of those wlio sign a referendum petition under thisseetion to write after their names the name of the city in whichthe referendum is sought, does not invalidate such petition:Hocking Pnwer Co. v. Harrison, 20 Ohio App. 135, 153 N.E. 155(1925).

This seetion, which requires the date of the signing of areferendum petition to be stated in the petition by 9te petitioner,does not require that such signature should be on any particulardate, and such signatures are valid if made at any tirne after theoriginal passage of a resolution declaring the necessity of a streetimprovement and before the filing of the petition: Hmnilton v.Greevey, 9 Ohio App. 221 (191.7).

-Compliance with statuteA signature on an initiative petition to amend a ch

followed by the ward and precinct of the signer,does nat ^, neot

with cans gnahrresStatetexNel. Poor vaAdrlisou^l32 a vahd and suffictnt

Op. 4.59, 9 N.E.2d 144 (1937). Ohio St.477, 8

-Presumption of va6dityUnder RC § 731.31, no signature can be rejected

Wtthout alirtding of its rnvalidity, and any .signamre whic6 is not exammdand rejected for some plausible legal defect must be presd

ume tohe valid and counted as such State ex rel. Blackwell v Baojh.tmc59 Ohio Op. 198, 73 Ohio L. Ab. 204, 135 N.E12d 92 (CP 19,56), ^-Sufficiency of affidavit

Where a board of elections has checked the si napetitions and dete'mined that there are a suf5ci

nt numlgrthereof that are valid, it may determine that such

valid if the (Anl) protest against the petitlons is based solely upon s^the failure of the circulator's affidavit to state "that all stgtrqrya ,were to the best of his knowledge and belief quaHfied to signState ex rel. Buehanon v. Stilhnan, 12 Ohio St. 2d 13, 42 Ohin Op.2d 119, 231 N.E.2d 61 (1967) .

Sufficiency of petitions

-Delay

In determining the sufficiency of petitions for a ohmtee ^amendinent a city council cat ii i,nnonqurento questions not fapparent on the face of the peti 5ons or whicli require the aid ofwitnesses to determine. Council may not circu;nvent its duty to wsubmit an amendment "forthwit° bv unil dlnecessareaymgftysdetertnination: Morris v.,City Council of Macedonia, 71 Ohio St.,,3d 52 G41 NE2d 1075 (1994) `,...

Textual reuirement

An inifiative petition which includes a correct copy of tlte hdeand text of a proposed ordinance is sufficient to authonze thesubirussion thereof to the people if the requirements of th8 :-^statute in other respects are comphed with: Cinannati vHillenbrand, 103 Ohio St. 286, 133 N.E. 556 (1921).

§ 731.32 Copy of proposed ordinance ormeasurefiled with auditor or clerk.

Whoever seeks to propose an ordinance or measure in"amtmicipal corporation by ini6aUve petition or fles a ^referendum petition against any ordinance or measureshall, before circulating sueh petition, file a certified coilt,of the proposed ordinance or measnre with the city auditoror tlre village clerk.

As used in this section, "certified copy" means a copycontainingawrittenstatetnentattestingthatitisatmea6d .,exact reproduction of the originaY proposed ordinance ormeasure or of the original ordinauce or ineasure. $

HISTORY: CC § 4227-6; 104 v 238; Bureau of Code Revieinu, Bff ?10-1-53; 144 v H 192. Eff 10-10-91.

Cross-References to Related Sections

Municipal inotor vehicle tax subject to referendum,§§ 4504.06, 4504.17, 4504.171, 4504.17.2.

Words which shall be printed in red, RC § 731.33.

CASE NOTES AND OAG

ApplicabilityAuthority of cleik-SlgltaturesCharter-Appliuability nf.Yatute-Applicatinn of statute-7Tnnsrnission of petitton

INDEX

RC

ce withti6ed copyotproposed

es of directnP of clerk) ot council^$ require^uen'pmphanca witer of clerksture requirerkcompliance3ption6oation and c

ilicabilityhe provisiongofaninitla

o the certitor or clerkatlve petition1tIII, § 9: St

2 Ohio Op.

ority of cle

gnaturesmunicipal cl

;ignatures affntton on its I^ ' .,

^gp

1

i^.sv. Qurrk;

3E.2d 175 (1972unicipal cl,

ignatures affrltlon of RC §

p; 2d 175, 13ul municipal cl^1,atures affixed

01.38(F): Sta13 Ohio Op.

Alicability <ere the cha

in features o:statutory provi"all other mai

power of refer'Revised Code^ent with respe,fition or with res"Tr to its circu731.32 and 731;Nimon v. Sprir' 2d 592 (1966)

,Application ofe board of eidated the refdtarter adopte

provisions:Yehoga County

44.2d 1063 (1991

ransmission orere a municip

ttain the suffictfang the petition'ptiieton involve:ch is correctablek, 59 Ohio App

78),

^mPbance withm e city clerk/ftnc

ofthe resolutu

ORGANIZATION § 731.32

cilotpganoe with statuteCerttfled mpY of °nLdiann"^

CapY°fFraposedord'sw ectea oFtt nm^crdireDuttes of

nulp^qy of coupjptg requirement

tt t6 u rs a.Cowp9+tncepower of clerkSigoatare requirementSeietcenplianue

VenticatinoVerificn$on and certtficafion

Applicabilityd 7:31 l i t th731 28 32f G ve o e§§ . an . , re atThe Drovis7ons o R

gling of an Inifiative petitiou with tire city audltor or village clerkand to the certification of the ordinance or measure bv suchmulitor or clerk to tbe board of elections do not apply to anmjtiadvepetition to nniend a city charterfiled putsuantto OConstad VIII, § 9: State ex rel. Blaclcwell v. Bachrach, 166 Oliio St.301, 2 Ohio Op. 2d 219, 143 N.E.2d 127 (1957).

Authority of clerk

-SignaturesA municipal eledc of council iioes have autliority to inialidate

sll signatnres affixed to referenchun pait petitions where the partpe5tion on its face violates RC § 3519.06(C): State ex rel.Watklns v. Quirk, 59 Ohia App. 2d 175, 1.3 Ohio Op.:3d'202, 392N.E.2d 175 (1978).

A municipal clerk of council does have authority to iuvalidetteall signatures affixed to referendum part petitions circulated inviolation of RC § 731.32: Stste ex rel. Wutldns v. Quirk, 59 OhioApp. 2d 175, 13 Ohio Op. 3d 202, 392 N.E.2d 175 (1978).

A municipal clerk of council has no authotity to invalidatesignatures affi.xed to a referendum petition in violation of RC§ 3501.38(F): State ex rel. Wntkins v. Qnirk. 59 Ohio App 2d175,13 Ohio Op. 3d 202, 392 N.E.2d 175 (19i8).

Charter

-Applicability of statuteWhere the chatter of a municipal corporation provides for

eettrun features of the initiative and referendtun diffednav frmnthe statutory provisions vvith relafion thc reto, and provides furtherAtat`all other matters relating to the qnestion of the esercise ofthe power of refetEndmn shall be reoulated by the pirovi.sions ofthe Revised Code of Ohio rela6ng to referendum pefltious,'butissilentwith respect to language to be contained on a referendumpetition orwith respect to filing snch petitton with a village officialprior to its circulttton such matters are contralled by RC§¢ 731.32 and 7•31 33, and BC § 7314fis inapplicable: State ezroL Nunon v. Sprinndale, 6 Oliio St. 2d 1_ 35 Oliio Op. 2cl 1. 215NE2d 592 (1966).

-Application of statuteThe beard of el<ctons propuh applied B( § 731.32 and

aralidated the ref'eiendnni petition inasmuch as Aiticle I of the4tScharter adopte<I JI st.tte laws that were not tncousistenttinthObarter provisions: State es rel. ( ituen.s for Better Beachmood cC"yaltoga Cotmty Bd of Election.s, 62 Ohio St. 3d 167, 580NE2d 1063 (I991).

-21•ansmission of petitionMlere a mtmicipnl cbiuter reqnires the elerlc of comsll to first

ascertain the sufflcienc of a rcferendum retlBou before trans-ymttting the petition to ntv conncil te clci^<s iefusul to trnnstnit

ftbopetiflon involvcy the cxercise of discrefion, thc tiross nbtue olWhfch is eoaectable thrungh iuandanms: State es rel. Wutkins v_Qtiuk 59 Ohio App 2d 175, 1.3 Ohio Op. 3d 202, 392 N. E.2d 175

'^ (1978 ).

Complhnee with t:d ts u e^ The city clei Wf7n:mce director a nri theintJ si natnre attesting g g

eopyopthe resolution complied with BC § i31.32: State ex reI.

Crossmmn Communitles of Ohio v. Greene County Bd. of Elec-tions, 87 Oliio St. 3d 132, 717 N.E.2d 1091, 1999 Ohio 308,(1999).

-Certified copy of ordinanceA copy of an oidinance or measure c•erti$ed as true by the clerk

of council is a sufficient compliance witlt [his section: HockingPower Co. v. Harrison, 20 Oliio App. 135, 153 N.E. 155 (1925).

Copy of proposed ordinanceVillaQe fiscul officer did not have a duty to certify the suffi-

ciency and validity of an initiative petition where the petitionerdid not file a precirculatlon certified copy of the proposedordinance: State ex rel. Lewis v. Rolston, 115 Oliio St. 3d 293, 874N.E,2d 1200, 2007 Oliio 5139, (2007).

Where a cih= employee "certified" the attthenticity of ordi-nance.s attached to referendum petitions and it was undisputedthat the documetts attached to those petitions were in fact trueand ac•curate copies of the ordinances, such was sufficient underOhio Rev. Code Ann. § 7•31:32, as the statute clid not require a`certified copy' of the orrlinxmce to be signed by the city clerk ofcotmcil as the official custodimi of the applicable records. Al-though Ohio R. Civ. P. 44 and Ohio R. Evid. 901(B) set outrequirements for establishing tlre aathentieity of pttblic records,such w;u applicable to litigation, parsunnt to Ohio R. Civ. P. 1(A),aud as thev were not specifically referenced in Ohio's election lawstatutes, they were not the onlv required tnethod pumsuant toOhio Rev. Code Ann, § 731.32. Ranldn v. Underwood, 2006 OhioApp. LEXIS 1098, 2006 Ohio 1237, (2006).

Duties of director of financeSince the city director of finamce wus a pubHe official, the citv

charter imposed ou the director of finawce the identical dutiesthat the auditor formerlv had, and the director of finance wasreqrtired to perforin "such other duties as may be required by thelaws of Ohio,' the director of finance wau the official who was thede facto auditor with whom filing shoulcl be inade for purposes ofRC § 731.32: State ex rel: Unnamed Camnin. v. Council of theCitv of Brook Park, 1998 Oliio App. LEXIS 3730 (8th Dist. 1998).

Duty of clerkThe clerk of council does not have a chtty to certify referendum

petitions to the board of elections where they are not acconapa-nied by verified or certified copies of the praposed ordinances:State ex rel. Shaw v. Lynch, 62 Ohio St. 3d 174, 580 N.E.2d 1068(1991).

Duty of councilOnce a peti8on for a chaiter amendment cantaining su&icient

v.Ji<I signatmes i.s fJcd with either the county council underOConst art X. § 4 or city council tmcler OConst art XVIII, §§ 6and 9, the onlv entitv with any duty of submitting the is'sue toelectors is the council T re requireinent of BC § 731 32 requitingfiling of a precirctdaflon copy of u petition conflicts with thec.onstituhon State ex rclVt'c]<c•t.s. Stunmit CounTy ' Counctl 93<Ohio St. 3d ^26, 757 N E2d310, 2001 Ohio 1622, (2001).

Filing requii-ementTrial canrt prnperly rletermined that referenduni petittons

yverF not inr,dida#ed under Ohio Rev. Code Aun. §§ 731,29 and73 tJ32 where they wei e received bv :m emplovee who worked inthc city anchtor's ofhce, ulthough tlsey were not specificallydeliveirdtotliemtditoi astherew.xnoevnlcnceofanyfraudandany other conehision would havc produced an absurd result byelevnfing statutary repnrements nver practical con.siderations.Runkiu v. llndervvood, 2006 Oliio App. LEXIS 1098, 2006 Ohio12:37, (2006).

Revo.cd Code § r3132 requires in cities, that those whoproposc a referendnnt on an ordin tnce must file a eertifted copyuf the orclinnnce vvith tlte citv anditor before cimulating thereferendiun pefition: State cx rel- 130gmtv. Cuyahaga County Bd.of Elecbons, 67 Ohio St. 3d .554, 621 N E 2d 339 (1993).

Before a inunicipal referendum petition is circulated, averifiedcopy of the proposed orclinance must be filed with the city

§ 731.33 MUNICIPAL CORPORATIONS

auditor. State ex rel. Bry v. Kirk, 42 Ohio St. 2d 454, 71 Ollio Op.2d 421, 329 N.E.2d 678 (1975).. ^ - - -. Revised Code §§ 731.28, 731.29, and 731,32, reqturing that

proposed ordinances and initiative or referendrun petitions befiled with the eity auditor6r village clerk m'eantindatory. Wherea city has no official named auditor, these filingsnuut be inulewith the auditor in fact, w}io perfonns the duties of an auditor:EdwardBose of Obio v. McLaiiglilin, 22 O6io App.$d 190, 51

'Oliio Op. 2d 357, 259 N.E.2d 754 (1970).The requirement of this section tliat whoever seeks to propose

an ordinancein a municipalcorporation by initiative petition orfiles a referendum petition against any ordinance shall before

cfrculating such petition filenverified copy of the proposed

ordinance or measure with the city msditororvillage clerk, ismandatory, and in the absence of coinplianee therewith no dutyfalls upon the city clerk to receive and file with tl'ie board ofelections a referendum petition otherwise valid: State ex rel. Mikav. Lemon, 170 Ohio St. 1, 9 Ohio Op. 2d 304, 161 N.E.2d 488

(1959).The provisions of this section are inandatory and before an

ordinance may be initiated they inust be sabstantiallyeomplic-d

with; the essential steps are; (a) the ordinamce to be subtnittedmust be filed with the auditor; (b) it must upon its face bear the

statesneut of someone that it is the very ordinancewhich is to besubmitted to the electors; (o) the rigllt to initiate an ordinance ispersonal andahe cppyfiled must bear the name of soine personwho sponsors it: Hopkins v. Marburger, 31 Ohio N.P. (n.s.) 171

(1933).

-Compliance with statuteDepositing a copy of the ordinanc•e which someone desires to

initiate in the city auditor's ofYice without formally frling the saine,which does notbear the verification of any person upon its facenor the certificate of anyone tliereon, is not a substantitd compli-ance witlr the statute even thouglr it be deposited there before thepetitions are circulated and it be a true copy of the ordinance withregard to which initiative vote is desired: Hopkins v. Marbmger,31 Ohio N.P. (n.s.) 171 (1933).

Power of clerkThe power of a municipal clerk.ofcouncil to ascertain the

sufficiency of a teferendmri petition is not co- extensive vvitb thatof a board of elections under RC § 3501.11(K). The clerk ofcouncil possesses no judicial or quasi-judicial power in this reg.vd,but is liinited to an examination of the face of the petitiou: Stateex rel. Watldns v. Quirk, 59 Ohio App. 2d 175, 13 Ohio Op. 3d202, 392 N.E.2d 17,5 (1978).

Signature requirementRC § 731.32 requirement of a signature affirming the truth of

the proposed ordinance on the precirculafion copy of an initiativepetition is a minimal requirement to prrotect the integiity andreliability of the initiative process: State ex Yel. Steele v.Morrissey, 103 Ohio St. 3d 355, 815 N.E.2d 1107, 2004 Ohio4960, (2004).

Strict complianceRC § 731.32 reqnires strict compliance: State ex rel. Barletta v.

Fersch, 99 Ohio St. 3d 295, 791 N.E.2d 452, 2003 Ohio 3629,

(2003).

VerificationThe pmpose of requiring tliat a verified copy of a proposed

ordinance be filed in advance is that citizens asked to signinitiative petitions inay detennine whetlier the petitions cireu-lated are bona fide, and a statement in wo5ng that the copy filedis in theforsn of language to be used on petitions circiilatedsatisfies the formal requisites: State ex rel. Winte's v. Applegate,30 Ohio Op. 2d 45, 93 Ohio L. Ab. 277, 197 N.E.2d 831 (App

1963).Thesequirement of this section that a didy veiified copy of an

ordinance shall be filed with the city auditor or village clerkbefore circulating a referendum Lietition, is mandatory and inust

b^7yr 33 Ohio slL. Ab^l 85 (CI 11940)^sreia v. Murray, 19 Ohio pP.

Verification and certificationThere is nosubstantiail difference betweeirverification gnd

certification of a copy of ms orclinance filed with a referendumpetition: State ex rel. Hir.shler v. Fr;vier, 63 Ohio St. 2d 333^ 14Ohio Op. 3d 418, 410 N.E.2d 1253 (1980).

At the top of eacli part of the petition menti oned insection 731.32 of the Revised Code, the following wordsshtill be printed in red:

Whoever knowingly signs this petition tnore than once,signs a natne other than hisown, or signs when not a lega]voter is liableto prosecution.

HISTORY: GC § 4227-7; 104 v 238; Bureau of Code Revision, Eff10-1-53.

SulBclency ol'petition-Filing n,lluirement

Sufficiency of petition

-Filing requirementWlrere a petition has been filed with the le}gislative authority of

a nnmiMpality requesting the passage of an ordinance subrnitHnga proposed charter amendinent to the electorate, and the legls.lative authoiity in fact passes an ordinance of submission byunanimous vote of its meinbers, no inquiry may therea$er bemade into the form, substance or sufficiency of such petison:Corild v. Bd. of Elections of Clark County, 15 Ohio App.2d222,44 Ohio Op. 2d 424, 240 N.E.2d 871 (1968).

§ 731.34 Designation of committee filingpetition..

Tlrepetitioners rnay designate in any initiative or refer-enduni petition a committee of not less than three of theiriiutnber, wlro shall be regar-ded as fihng the petition. Aftera petition has been filed with the city auditor or village

clerk it shall be kept open for public inspeetion for tendays. If, after a petition proposing an ordinance or othermeasure has been filed with such auditor or clerk, theproposed ordinance or other measure, or a substitute forthe proposed ordinance or rneasureapproved by suchcolmnittee, is passed by the letlislative authority of themunicipal corporation, the majority of the cominittee sha

â

notify the board of ele-ctions in writingand such proposedordiuance or rneasure sh-all not be submitted to a vote ofthe electors.

If, after a verified referendum petition bas been Nedagaiust any ordinairce or measure, the legislative authoiityof the municipal ^ corporation repeals snch ordinauce ormeasure, or it is held to be invalid; the board of elec6ousshall not submit such ordinance or measure to a vote oftheelectors.

HISTORY: GC § 4227-8; 104 v 238; Bureau of Code Revisiom Eg10-1-53.

CASE NOTES AND OAG

CertiflcanonConsbvctinn

INDEX

QUO WARRANTO

j,nyllment is due; but alI its rights hereunder shall then betertniuated." The nonpayment of the seoond instnlhnent at theI e provided will not sustain a forfeiture, or authorize a

jndgrnent of ouster, under the terms of the grant: State ex rel.h b hern Ov io Trac. & Co.,104O io St. 245,135 N.E.Buff Nort

58S (1922).if a savings company is wrongfully payiug commissions for

the sale of its stock, the remedy is quo wacranto, and not anaetion by a stocldtolder for accounting: Ellis v. Prudential Say.Co., 104 Ohio St. 599, 1:36 N.E. 273 (1922).

Were there has been a misuse of powers by a corporation,the writ mast issne, regardless of the intention: State ex rel.

Atty. Gen. v. Interstate Sav, lnv. Co., 64 Ohio St 283, 60 N.E.220 (1901).

-InsuranceWhen a warranty in connection with sale of goods tunounts

to insurance for wbich et judgment of ouster will be rendered

against a corporation, see: State ex rel. Duffy v. Westeni AutoSupply Co., 134 Oltio St. 168, 11 Ohio Op. 583, 16 N.E.2c1256(1938), butwhen sucb warranty does not amount to insurance,see: State ex rel. Herbert v. StandardOil Co., 138 Oltio St.376,20 Ohio Op. 460,35 N.E.2d 437 (1941).

General Code § 1465-101 (RC ].4123B2) linuts the con-tru.ts of insurance for the purpose of indeinnifving etnployersfor whiclr authotity is given in general terms in CC § 9510(RC § 3929.01). Indemnity insttrauce companies will beousted fromn the frnnchise for writingindemnity insurancepohcies which do not contain the provisions required by GC§ 1465-101 (RC § 4123.82), or which contain the provisionswhieh are forbidden by GC § 1465-101 (RC § 4123.82):State ex rel. Turner v. Employer's Liability Assur. Corp., 95Oluo St. 289, 116 N.E. 513 (1917)-

-Not-for-profitAn attenipt by private citizens to incorporate as a public

humane society is in contravenfion of law, and a quo warrantoaction tnay be brought by the attorney general of Ohio tocancel a respondent's cotporate status: State ex reL Brown v.Regional Public Scrvice Corp., 47 Ohio App. 2d 300, 1 OhioOp. 3d 360, 3.5:3 N.E.2cl 851 (1975).

Not-for-profitIf a hospital, which is incorporated as a corporation not for

profit, is operated as a snbterfuge on the part of its promotersfnr t6e purpose of deriving a profit imder gnise of a charitableinstitution, the remedy is by proceeding in quo warranto:0'Bden v. Phvsicimns Hospital A.ssu., 96 Olrio St. 1, 116 N.E.975 (1917).

PleadingsThe ride of pleading in an action in qao watranto is

somewhat different froin the nile of pleading in an ordinarocivil case; quo warranto proceedings exJl for only a short formpetltion, ,setting Poith one nr ntore of the provi.sions fonnd inCC § 12304 (RC § 27.33.02): SCtte es rel. Kearns v. Ohio-Midland Ligbt ck Power Co.- 74 OIrio C. Ab..321, 140 N.E.430 (App 19.5.3).

The office nf informatiun in the mtture of a rpto warranto isnot to tender un i.s.sue of fmct but simply to call uptm thedefendtuit miporation ht shotiv its wturant or charter forexercising the privile7(es and fi'anchises mmmc•dState ex rel.Kearns v. Ohin-Midl.md [,ight & Power Co-, 74 Ohio L. Ab.321, 140 N.E.2d 4:10 (App 19.5:3)-

ProcedureWhen, in un action iu rpio warranto, it is found and

adjudged that a cotpora6ou Iras snolated B(: § 27:3.31)2(A) byoffending against a law providing for its own creation, liC§ 2733.211 requires thatjudgment be entered that the corpn-

§ 2733.03

irffion be entitely ottsted and e-xcluded front its ptivileges,rights and franchises, and that it be dissolved: Snrte ex rel.Falke v. Montgomery CN. Residential Development, Inc., 40Ohio St. 3d 71, .5:31 N. E.2d 688 (1988).

Wltat Oliio's yuo warranto .statute does, in effect, is to takethe tiglrts (tlie assets) of the unincorporated association ofinclivi(Iuals (the void-ab-initio cotporation) and places tltem(the rights) in the control of a tntstee or trustezs for thebenefit of those creditors who did bu.siness with that unineor-pontted association dwing the time it was acting as if it werea corporation: Ntontgomery Cotmty Residential Develop-ment, Inc. v. Nlontgomery County Board of Mental Retarda-tlon & Developmental Disabilities, 680 F. Supp. 1068 (S.D.1987).

Public utilitiesQuo warranto and not uijunetion is the reinedy for tesflng

the validity of a franchlse of a pttblie utility, but if a publicutility has removed its eqtupinent frmn the streets of amunicipal corporation, it may be enjoined froin reconstntctingits eqaipinent in such streets without a vtilid franchise:Hardin-Wynndot Lighting Co. v. Upper Sandusky, 93 Ohio St.428, 113 N.E. 402 (1916), [af£tnned 251 U.S. 173 (1919).]

Religious organizations - - -The issue of wltether a local chnreh is a part of a hierarchi-

cal, cliurch organization is properly cognizable in a quowarranto proceeding, and the utilization of a broad spectrtunof factual matters demonstrating the local olntrclr's Participa-tion in the affairs of the natlonal church and an adherence tothe national church's presctibed procedure before the disputearose is the proper tnethod of rletennining the local church'saffiliation with the natlonal church: State ex rel. Morrow v.Hill, 51 Obio St. 2d 74, 5 Ohio Op. 3d 45, 364 N.E.2d 1156(1977).

State landsQuo warranto is available to the state to protect its title to

canal lands in possession of and claimed by corporate defen-dant: State ex rel. Bettmnn v. Miami Conservancy Dist., 125Ohio St. 201, 180 N.E. 893 (1932).

Quo warranto is the proper remedy to question the dght ofa railway company to oecnpy lands which belong to the state:Cleveland Terminal & Valley R.R. v. State ex rel. Atty. Cen.,85 Ohio St. 251, 97 N.E. 967 (1912).

TimelinessA qno warranto proceeding brought against a cotporation

not complying with milk prices adopted by the milk marketingcnmmission, while the corporation was pursuing the statutoryreinedy to review the commission's order denying a license tosell milk, was prenature and shotdd be cGsmissed, GC§ 10^40-10 (RC § 917.22): State ex rel. Bricker v. KrogerGroceiy & Baking Co.. 127 Oh9o St 167, 191 N.E. I(19.3.3).

§ 2733.03 jurisdiction and venue in quowarranto actions.

An action in qao wanramto can be bronght otdy in thesnpreme cvnrt, or in the cotirt of appeals of the conntyin whiclt the defendant, or one of tlte defendants,resides or is found, or, when the clefenclant is acorporation, in the connty in which it is sitnated otliasa place of btrsiuess. Wben the atlnrney general files thepetition, snch acrion may be brougJit in the comt ofappeals of Franklin connty.

liI.STORI; ES § 6768; S&C 89, 1264; 36 v 68; 511 v 267, § 13;

82 v 16, 39; GC § 12311; 103 v 405(433); Bureau of Code

Revision. EIT 10-1-53.

§ 2733.04 COURTS - GENERAL PRQVISIONS - SPECIAL REMEDIES

Cross-Ref'erencesto Related Sections

AttorneV' general mav bliqs; ,nrits in Franklin (:nnntv. RC§ 1(19.16_

Ohio Constitntion

OrikSnal jmi.vdiction-(:onrt ohappeals, OCnust tut Io,; § :3(13)Supreme c•onrt, O(m,at art IN2§ 2(13)

Ohio Rules

Original actions in snpreme cvnrt, .SCtI'r.tr6 X.

Comparative Legislation

Jnrisdicfion and veuueCA-Cal Code (:iv 1'roc § 803FIr -Flu. (:onst. Art . V §§ 4, 5IL-7:35 ILCS § 5/18-,102IN-Burns Ind. Coclc Ann_ § ,34-17-1-1KY-KRS § 415.010MI-MCLS § 60021.7NY-NY CLS Exec § 63-bYA-421'.S. § 7)1, Pa R.C.P No. 1112

CASE NOTES AND OAG

C rurt of oonnnon pleallealaratnnjudy,nneotNut-for-prnCitReGgtous urganimtion.cSupreme cvurt nf ulriovenue

INDEX

Court of common pleasA court of common pleas does not have jnrisclicHOn af nn

action in quo wturanto, such jumisdiction befng either in thesupreme comt orthe court of appeals: Veterans of World WarI v. Le,y, 70 Ohio L. Ab. 49, 118 N.E.2d 670 (App 1954).

Declaratory judgment

Althongh the exclnsive rernedy bv ivhic]) the vtilidav of acorporate franchise can he tested is bv an action in qnowarranto, the tnal court has jurisdiction to determine rightsantong the pluties in an acfion fordeclsvatoryjudgmeMrOhioHospital Assn, v. Commmiity- Mnt. Ins. Co., 31 Ohio St. 3d215, 31 O6io B. 411, 509 N.E.2d 1263 (1987).

Not-for-profit

The only way an al]eged misuse or abuse of the cemetervassocia6on's charter pnvileges can be challenged is in aproceeding in quo warranto in the c•ourt of appeals or thesupreme caurt: Daily Monuntent Co, v. Crown Hill Cemeteti,Assn., 18 Ohio Op. 2d 343, 1.76 N.H.2d 268 (App 1961).

Religious organizations

V'Vher a church sonnht to enjoin its inteiiin pastor #romcontinrring to act in that role- it sought relief in the nahtre ofquo wananto because it was a corporation crYated by athor-ity of the state and the relief it sou,a,ht was orster, which wasonly available in a qrto wturanto rtction, so n comt of cornmonpleas had no jmisdiction ever such ttn action, under OhinConst. att IV, §§ 2 and 3 and RC § 27.33.03, and ordersissned bv a eourt of crommon pleas iu such an actlon were voidab initio. Greater Temple Christian Chnrc•h v Higgin,s, 2006Oltio App. LEXIS .3205, 2006 Ohin :3284, (2006),

Supreme Court of OhioThe legislature cannot limit the jurisdiction of the supreme

court in quo warremto since OCon,st art IV. § 2 gives the

snprnne trmrt ungiutJ jurlSdirtion in quo wurrutto proCeed-

iu};sy thc requiIcnieut thttt thr procreding nurst be broughtlltthe connty in whfeh the deleudaut residcv- as wus held fn Statec•x rcI. Lowes v'fhompxun. ,34 OS 3(i.5, is [bux repcaled, so farus it relutes lu tlre suprrnie cnrut ,Slate ex rel. Turner vFtrnder l06 Obio St 191, I40 N.E. 183 (1922)

Venue

\Nliere an ution u cuuuueucT^d in thc oon2et appellaterliettict Inrt In diewrong comrht the action .vill he transfereedto [he prope connty of vonue: S'tnte c, re]. 13osenberger

ninpher_ 62 OLio App. 3c1 51. 574 N.E.?el 560 (19S9).Fm cuse whu e attornev guu r;tl filed a petition in the court

ul appe.tls of PwnlJin comth .y,uViut a<leieudmrt resident ofanother ruunht.ser Ren,adtler ,_ State es reL I lagan, 90 OhioS't. 1363, 107 N.P:. 758 (1914).

An lction brouglrt bv the state on the relation of theattoruev geuerxl tu test the right of a raihvny cu;pcratJon toocenpv Itmds ln Cmahoga oonnty whidt tue cl..... ed to belongto the state, mav be brought in tlte circuit court of Fran)dincounh- Cleveb.m<I Trnninal rk V'alley R.R_ v. S'tnte cx rel. AtLyGen_, 2;5 Obio St. 251, 97 N.E. 967 (1912).

§ 2733.04 Commencing quo warranto.

When directed by the goveruor, supreme court,

secretari^ of state, or ,eueral a.ssembly, the attorneygenerail, or a prosecuting attorney, sl)all coimnence anaction in qno warranto- When, rnpon complaint orothenvise, either of sucl) officers bas good reason tobelieve that anv case specified in section 279:3.02 oftheRevise(f Code can be establJshecl by proof, lie shallcommence snc•h action.

HISTORY: RS § 6762; S&S 89, 1264, 1266; 36 v 68, § 8; 50 v267, §§ 9, 10, 11, 12; GC § 12305; Bureau of Code Revfsion,10-1-53; 137 v H 397. Eff 6-15-78.

Practice Manuals and Treatises

Ander.son's Ohio Cirdl Practice HSth Fornis § 118.01 Sub-stance of the Action

CASE NOTES AND OAG

Aut6or[hntGmrnur

19

INDEX

Authority of prosecuting attorney

A person rnav serve simultaneously as an assistant prose-cuting attornev^an(1 member of the let.^'slative autltomity of astatutor" citY, provided that as an assistant prosecul3ng attor-nev he doe.s not prepttre the counN budget or present it to thecrnmn, budget conunission, substltute for the prosecutingattornev on the counbbudy+et conunisslon, or prosecute anaction nnder BC §§ 117.27 to 117.29, RC § 733.73,RC§ 2735.04 nr RC § 273.3,0.5 ugefnst himself as a metnber oftbe legi.dafive autharity- In addition, as an assistant prosecut-ing attornev he rn,re not adrdse or represent an etfitv on behalfof the prosecuting attornev in a Inatter or legal proceedinginvoking the citv be serves as a mentber of its legislativeauthorih-. (OAC No. 83-0.30: OAC No. 70-053 OAG No.70-022; OAC; No. 69-13:3: 1846-19(16 Official Opinions of theOhio Attorney (=eneral, wl. 4- p. 746, questioned): OAG No.99-027 (1999).

An indi,ndmJ Inav hold simtdtaneonslv the positions ofrusistant county prusecuting attornel' and administrotivehear-

§ 2733.06 COURTS - GENERAL PROVISIONS - SPECIAL REMEDIES

action mav be brought by the attornev genead ol Ohio on liisown reLttion to cmicel a respundeutv corponrte statas: Statecxrel. Brown v. Regionel Pnblic Safety Servicar Corp., 47 OhioApp. 2d 300, 1 Ohio Op. 3d 360, 35.'3 N.Pl2d 851 (197.5).

Quo warranto procecnlings do not provicle un ade-quateremedy because, under Ohio law, such procc-rdings can bebrought only ut [he discrction of thc uttorney genenil or .rprosecufing attorney on leave olthe conrk asd nnt as a matterof right: Lapidex v. ]Joner, 248 F. S'upp- 88:3 (E.D. Mich-

196.5).

Discretion of courtWhen the attomey general biings apioceeding in qno

warranto on the direction ufthe governor: the supreme court,the general asseinbly, or uprnn his mvn mofion, no lesrve to filea petit'ion in quo wurrento is necessary: but when he bringssuch action upon behtdf of an indmdmil, s2iclt leave isnecessary, and the supreine court niay refuse to Itear .sachproceedings: State ex rel. Hogan v. Hunt, 84 Ohio St. 143, 95N E. 666 (1911).

StandingOnly the attorney general wnd prosecufing attornevs have

stancling to seek a writ to challenge the right to a nonpublic-office: Stute ex rel. Hawthorn v. Rassell, 107 Ohio St 3c1 2$9,838 N.E.2d 666, 2110.5 Oliio 64:31, (2005).

[USURPATION OF OFFICE]

§ 2733.06UsurPation of office.

A person clniming to be entitled to a public officennlawftxlly lield and exercised by another may bt-ing anaction therefoy by hirnself or an attorney at law, upongiving security for costs.

kIISTORY: RS § 6764; S&C 1270; 37 v 70; GC § 12307;Bureau of Code Revis3on. Bff 10-1-53.

CASE NOTES AND OAG

INDEX

ApplicvlrilityDz,nages to nusted puhlic ofncialDisqnalification fmm olliceDue processEntl[lement to olliceloulder of partiesOpen meetings IxsvStanding of indiFddual

ApplicabilityWhen an inmate clatmed t'hat a prosecutor and a judge, now

retlred, initiated and presided ever a'sham" legal prosecutionof him, this was not a proper claim for a wiit of quo warrantobecause the onlv circumstance tinder which a private citizen,rather tlian the attomey general or a prosecuting attorney,coald seek sttch a writ, under RC § 2733.06, was when thecitizen claimed to be entitled to the public olfice which arespondent hel(l, and this was not the inmates cl.um. State exrel. Cross v Johnson, 2005 Oliio App. LEXIS 2632, 2005 Ohio2806, (200.5).

Quo warranto cannot be used to challenge the results of anelection of a emndocninium association board: Wright v KingsPatb Condo. Grmip, 145 Obio App. 3,1275, 762 N.E.2d 477

(2001).Posi6on of city personnel director is not a"public office` for

puR>oses of qtm w:uranto proceedings: State ex rel. Bo1an v.

Kadlcr, 56 Olrio St 2d 116, 10 Ohio Op. 3d 307, 383 N.E.2d119 (1978).

Damages to ousted public officialAn onsted public official m:w assert a danrage claim for

breach of employmenl Cmrtract in a conimon pleus court, andsuch uctiun need not await the coninienccinent or eonclusienof a separute qno warrmtto clainc Beasley v East Cleveland,20 Ohio App. 3d 370, 20 Ohio B. 475, 486 N. E.2d 859 (1984).

Disqualification from officePerson whu w:u elected to villut;e coimcil had u reasonable

fime to oblain :m order expunging a felony conviction thatdisquaified him from au office of public trust. State ex rel.Powers v. Cmtis, 2003 Obio App. LEXIS 5453, 2003 Ohio6104, (2003).

Due processOhio Board of F.chtc:rtion member who was removed from

his elected position was protided with due process whereOhio law provided for post-tennination judicial proceedingsin the fornt of a quo warranto action even though lie did notavail hituself of those proceeclings: Brickner c. Voinovich, 977F.2d 235 (6th Cir. 1992).

Entitlement to officeAction in quo warramto tmder RC § 2733.01 was dismissed

where itwu brought by an at-large council member candidateagainst the elected comicil member, as the aetion was prema-hire where the elected official had not yet taken office. Thecandi<late lacked standing under RC § 2733.06 to bring theaction, as he could not show that he was entitled to the of£ree.State ex rel. Schulz v MeCloskey, 2006 Oluo App. LEXIS 1,2006 Ohio 10,(2006).

If the relator in a quo w.usanto proceeding fails to establishentitletnent to the office, judgment mav still be rendered onthe issue of whether the respondent lawfiilly holds the office:State ex rel. Myers v. Brown, 87 Ohio St. 3d 545, 721 N.E.2d1053, 2000 Olrio 478, (2000).

Quo warranto is the proper action to test the actual right toa public office. However, before a partv is entitled to maintainan action in quo warranto, lie must not only show his own rightto the office but be must also establish that another is aetuallyholding office. Quo warranto does not lie where no one hasactuallv assttmed office: Steiniger v. Butler Cty. Bd. ofCommrs., 60 Ohio App. 3d 122, 573 N.E.2d 1212 (1989)-

ToprevailunderRC§ 2733.06,arelatormustshow(1)thatthe office is being unlawfully held and exercised by tlrerespondent, and (2) that relator is entitled to the of6ce: Stateex re1. Delpli v. Bat-r. 44 Ohio St. 3d 77, 541 N. E.2d 59 (1989).

Where there is no dispute as to the operative facts, andwhere the controlling law requires a findiug that a relatorwould not be entitled to an office even if that office weredetermined to be unlav+fnlly held bv another, the relator hasnot presented a good faith claim of entitlement to thedisptited office and the complaint in quo warranto mustconsequently be disinissed for lack of stancling: State ex rel.Halak v_ Cebula..50 Ohio App. 2d 334, 4 Ohio Op. 3d 285,363N.E.2d 744 (1976).

In the ezue of a vacancy in a city council, to wbich GC§ 4236 (EC § 731.43) applies, and council for any reasondoes not fill stich vacancv within thirty days front the titne itoccurs, the mayorhas a mandatoiy duty to fill the vacancy byappoinbnent, and if lie in the discharGe of such duty. withoutanv collusion witlt the legislative branch of the city, makes anappointment to tbe vacancy and his appointee quslifSes for theoffice under the terms of the charter, the appointee is legallyenfitled to the offlce zmd has a tight umxlertlris sec5en to haveanother person oaste<l therefirom who is unlawfu]ly holdingthe office and exercising its fnnctions: St.rte ex t-el. Flask v

Colli

(19 0

oath

0rega

ingsof 0

ex r225

I'allpukoffidefOh

carof19!

Joi

Tu

R:2C

St

QUO WARRANTO

Collins, 148 Oltio St. 45, 34 Ohio Op. 564, 73 N.E.2d 195

(1947).One elected to the office of mayor, who does not take the

oath therefer and give bond ;ts required of such officer by GCg§ 4666 and 4667 (RC § § 733.68 and 73370), inust beregarded as having refused to accept the office, and proceed-Ho in quo warranto to oust the inciunbent nwyor whose termof office lias in the meantime expired will be di.smissed: State

ex rel. Stunn v. Bimeler, 15 Ohio App. 365, 32 Ohio Ct. App.

2^ (1921).in order that a ptivate relator may be entltled to maintain

an aetion in qno watTdnto under this section, to recover a

public office, he nmst show not only that he is entitled to theoffice, but also that it is unlmvfull y held and exercised by thedefendant in the action: State ex rel. Heer v. Butterfield, 92Ohio St. 428, 111 N.E. 279 (1915).

The dght of an incumbent of a public office to such oHicecannot be attacked collaterally in a suit to enjoin the paymentof his salnry: State ex rel. Strofe v. Vance, 18 Ohio N.P (n.s.)198, 30 Ohio Dec. 359 (1914).

Joinder of partiesFor joinder of parties in quo warranto, see State ex rel.

Turner v. Fen(ler, 106 Oliio St. 191, 140 N.E. 182 (1922).

Open meetings lawNoncomphance with the open meetings law invalidated

removal of the township zoning in.spector. State ex rel.Randles v Hill, 66 Ohio St..3d.32, 607 N.E.2d 458. 199:3 Ohio

204,(1993).

Standing of individualA private inditddual may not briug aquo warranto action

unless he himself his rightful title to the office. Whererelator's only basis for a claim is that he was runner-ttp in acouncil election, and a resultant vumancy would be filled byappointment, the complaint for a writ inu.st he dismissed:State ex rel. Halak v. Cebula, 49 Oliio St. 2d 291, 3 Ohio Op.3d 439, 361 N.E.2d 244 (1977).

The right and title to the office of chairman of the statecentr'aI committee of a political party inay not be qttestionedby an individual claimant in quo warranto: State ex rel. Cain v.Kay, 38 Ohio St. 2d 15, 67 Ohio Op. 2d 33, :309 N.E.-2d 860(1974).

An action in quo wurnmto may be brouglit bv an inditridualas a private utixen onlv when he personaly is claiming title toa ptiblic ofBce. in all otlter instances. snch action nntst bebrought by the uttorney general or a pro.secuting attornev:State es rel. Annable v Stokes, 24 Ohio St. 2d:32, 5.3 Oliio Op.2d 18, 262 N.E.2d 863 (1970).

Revis'ed Code § 2733.06, permitting a pnvate person tobring an ac5on in quo warranto, is not applictdile to achallenge to u uomnating petition, since plaintiff is not°claiining to be entitlecl to a public office nnlnwfiilly held anclexErcised by another': Marunze v. Board of Elections, 167Ohio St..32.3, 4 Ohio Op. 2d 401, 148 N.E.2d 229 (1958).

Revised Code § 27:33.06 einpotveis ;m indivirlnal, claimingin good faith tutd upon reusonable grounds to be enNtled to apublic office held :md exerc{.sed by another, to expeditloicslybring an action in quo war7Witoupon his own inltlative in thename of the.statc. State es rel- Ethell v. llendncks, 165 OhioSt. 217, 59 Ohio Op. 298, 1:3.5 N.E.2d .362 (1956).

Onder this sectirnn, relators elected to bourd, :md givingsecmity for wsts, tnuv bring ^yno warra> to unst oldmember.s: State ex rel. Mentzer v. Pnce, .30nnOhfo App- 218,164 N.E. 76,5 (1923).

The only mrthority given an individwd to insfitute :m actionin quo wnrtnnto is fonud in C1C § 12:307 (R(; § 273:3.116),under whiclt one claimiug title to a publlc office mav bing

§ 2733.08

sudi action in his plivate capacity: State ex rel. Lindley v.Maccabees, 109 Oliio St. 454. 142 N.E. 888 (1924).

§ 2733.07 Prosecuflon in absence of pros-ecuting attorney.

When the office of prosecuting attorney is vacant, orthe prosecnting attorney is absent, interested in theaction in quo warranto, or disabled, the court, or ajudge thereof in vacation, tnay direct or pertnit anynlember of the bar to act in Iiis place to bring andprosec•ute the action.

HISTORY: RS § 6765; S&C 1269; 36 v 68, § 23; GC § 12308;Bureau of Code Revision. Eff 10-1-53.

Practice Forms

General Form of Complaint in Mandamus ConttuningPrayer for Peremptory or Alternative Writ in the First In-stance 1, 1S Ohio Forms of Pleading and Practice Fornt SPla

CASE NOTES AND OAG

GnnerallvAudutrtty olpruyecutlNonpuhlic oflice

INDEX

GenerallyRevued Code § 2733.07 grants a court discretion to ap-

point an attorney of its clroice to prosecute an action on behalfof the state whenever the proseettting attorney is absent,interested in the action or disabled: State ex rel. Thomas v.Kane, 43 Ohio St. 3d 164, 5.39 N.E:2d 1122 (1989).

Authority of prosecuting attorneyCounty prosecutor cannot delegate tlte duty to bring a quo

warrxmto action against a couporxtion to an otttsicle attornteyuntil that delegation lias been authodzed uncler RC§.30.5.14(A): State ex rel. S:uNni v. Trumbull 1tvp. VolunteerFire Dep't, 163 Oliio App.3c1603, 939 N.E.2d 938, 2005 Ohio4903,(2005).

Nonpublic officeOnly the attorney general and prosecutina attorneys have

standing to seek a wnt to challenge the nght to a nonpublicoffice: State ex rel- Hawthorn v. Russell, 107 Oliio St. 3d 269,8:38 N.E.2d 666, 2005 Ohio 6431. (2005).

§ 2733.08 PetiHon against person forusurpation of office.

When an action in rluo warranto is brongltt against aperson for usurping an office, the petition shall setforth the natne of tfre person claiining to be entitled to'thd office, with an uverment of his ri(;ht thereto.Judginaent mny be renderecl npon the right of thedefendant, and also on the right of the person averredto he so entitled, or only npon the right of thedefendant, its justice reqnires.

All person.s who claim to be entitled to the smneoffice or franchise tnay be made defend;tnts in oneeution, to try their respective rights to .snch office or

franchlse.HISTORY: RS §§ 6766, 6767; S&C i265, 1266; 36 v 68, §§ 3,

7; GC §§ 12309, 12310; Bureau of Code Revision. Eff 10-1-53.

QUO WARRANTO

in such action requires the respondent to answer on the thirdSaturday after the retum day, on motion such summons maybe amended to conform to the statutory requirements underthe provisions of CC § 11363 (RC § 2309.58): State ex rel.Heck v. Sucher, 77 Ohio App. 257, 32 Ohio Op. 578, 65N.E.2d 268 (1946).

DefensesAlthough under this section, the answer may contain as

many several defenses as exist, such defenses must also be inllke harmony with the statutory subject of action: State ex rel.Price v. Coluinbus, D. & M. Elec. Co., 104 Ol1io St. 120, 13.5N.E. 297 (1922).

Pendency of another actionThe pendency of emotlrer action is a bar only when the two

actions are between the same patties and for the same causeof action: State ex ret. Maxwell v. Schneider, 103 Ohio St. 492,134 N.E. 443 (1921).

§ 2733.13 Court may extend time forpleading.

In an action in quo warranto an order may be madeby the court, or by a judge thereof, extending the timewithin which a pleading may be filed. Such order doesnot work a continuance of the case.

HISTORY: RS § 6773; S&C 1268; 36 v 68, § 14; GC § 12316;Bureau of Code Revision. Eff 10-1-53.

§ 2733.14 Judgment when office, fran-chise, or privilege is usurped.

When a defendant in an action in quo warranto isfound guilty of usurping, intruding into, or unlawfullyholding or exercising an office, franchise, or privilege,judgment shall be rendered that he be ousted andexcluded therefrom, and that the relator recover hiscosts.

HISTORY: RS § 6774; S&C 1268; 36 v 68, § 15; CC § 12317;Bureau of Code Bevision. Eff 10-1-53.

CASE NOTES AND OAG

ConsentCO ousterDisquali6cation from officeFraudnlent reconnnendatlonRevocatlon of corporate status

INDEX

Consent to ousterFor ouster by consent from office of councilman, and

induction of relator in quo warranto, by consent, see State exrel. Gluvna v. Kienzle, 102 Ohio St. 691, 135 N.E. 974 (1921j.

Disqualification from officePerson who was elected to village council had a reasonable

time to obtain an order expunb ng a felony conviction that

disqualified him from an office of public tntst. State ex rel.Powers v. Curtis, 2003 Ohio App. LEXIS 5453, 2003 Ohio6104, (2003),

Fraudulent recommendationA member of a county veterans service commission who is

appointed by a court of common pleas based on a fraudulentand unauthorized recommendation is subject to removal in aquo warranto proceeding: State ex rel. Huron County Prose-

§ 2733.15

cutor v. Westerhold, 72 Oltio St. 3d 392,,650 N.E.2d 463, 1995Ohio 86, (1995).

Revocation of corporate statusAn attempt by private citizens to incorporate as a public

humane society is in contravention of law, and a quo warrantoaction may be brought by the attomey generzil of Ohio tocancel a respondent's corporate status: State ex rel. Brown v.Regional Public Safety Service Corp., 47 Ohio App. 2d300, 1Ohio Op. 3d 360, 353 N.E.2d 851 (1975).

§ 2733.15 Judgment when director of acorporation is illegally elected.

When an action in quo warranto is against a directorof a corporation, and the court finds that, at hiselection, illegal votes were received or legal votesrejected snfficient to change the result, judgment maybe rendered that the defendant be ousted, and ofinduction in favor of the person who was entitled to bedeclared elected.

HISTORY: RS § 6775; 70 v 176; GC § 12318; Bureau of CodeRevision. Eff 10-1-53.

Cross-Referencesto Related Sections

New election, RC § 2733.16.

CASE NOTES AND OAG

INDEX

Generadlylurisdiction

GenerallyQuo warranto is the only retnedy to ehallenge the title of a

de facto officer of a private cotporation, and the dght to acorporate office cannot be tested by mandamus or by injunc-tion or other equitable proceeding: State ex rel. Babione v.Martin, 97 Ohio App. 3d 539, 647 N.E.2d 168 (1994).-'

Where the validity of an election of ineinbers of the boardof directors of an insurance company is challenged in anaction alleging misrepresentation and omission of materialused in soliciting proxiesfor such election, it is not error forthe trial court to find that the appropriate relief lies in thereinedy of quo warranto: Capri v. Johnson, .32 Ohio App. 2d95, 61 Obio Op. 2d 93, 288 N.E.2d 604 (1972).

Writ of quo warranto will be allowed to ottst board electedby minority interests, and board elected by votes of executorof a deceased owner ordered inducted into office, notwith-standing violation of by-law requiring notification of cltange ofownership: State ex rel. Lieghley v. Potter, 42 Ohio App. 489,36 Ohio L..5.54, 182 N.E. 242 (1932).

If a corporation has five directors, the valid electlon of fourpersons entitles such persons to be inducted into office inplace of the old board of five <llrectors: State ex rel. Price v.DuBml, 100 Ohio St. 272, 126 N.E. 87 (1919).

JurisdictionWhere the °core of relief" sought by a plaintiff is the

challenge to a person who unlawfully holds corporate office,the proper remedy is quo warranto and a court of commonpleas lacks jurisdiction over the subject inatter of the action:Hendershot v. Conner, 48 Ohio App. 2d 335, 2 Ohio Op. 3d314, 357 N.E.2d 386 (1974).

uy public the.), (ii), and (iii)t perform anyer of attoineyn affirmation.juirements ofmay performsr of attoxney

aform undershall do both

ordance withis section fortature on aIl

nominatingnts signed byd Code;

book for thequestion as

gn petitionss behalf, atsence.ion 3501.38ode to then petidons

ded voter'snce of thathis sectiona or otherle Revisedfiled with

h division9eemed tor shall be

f sectionI Code tomowing]y9on on ad in thedivision

3501.38e to thed on theitted anattorrieyattorney. behalf,voter, in

2010 SUPPLEMENT

comply with section 3501011 [3501OL1] thgh..roureasonable accommodation, including the use ofassistive technology or augmentative devices.

HISTORY: 151 v j13, § 1, eff. 5-2-06.

See provisions of §4 of 151 v H 3 following RC § 3501.38.

§ 3501.39 Grounds for rejection of peti-tion.

General7yFalse statement in petition -LachesPzyor and payee statementsProhitition

§ 3501.90

(A) The secret ^ GeneraByary of state or a board of elections RC §§ 519.12 aud 3501.39, not RC 3519.16, governed a

thOshall accept any petition described in section 3501.38 board

protest gelections,tinot the a court ^of eommon p eas,s

ainst

(1) A had

of the

Revised Code unless one of dle foIlowing occurs: jnrisdiction over the protest: In re Protest Against Jerome

held, and a d

written protest ag

etermination is

ainst mathede peti

by H thone e

orlcandi- T. Zoning Referendum petition,162 Ohio App. 3d 712,834dacy, naming specific objections, is fled, a hearing is N.E.2d 873, 2005 Ohio 4189, (2005).

electionofficials with whom the protest is filed that the petition Eal9e statement in petiHonis invalid, in accordance with any section of the ReviSed By significandy overestimating the acreage af£ected by theCode providing a protest procedure. rezoning, tbe referendum petltlons conveyed a mistaken and

(2) A written protest against the petition or candi- confuse gthe average personethat lthe twould e affect

held, and agdetearb^ilationobjections, byd the elecry n considerably rezoningmore property than actually impacted: State ex

o rel. Miller Diversified HoldLfficials with hw om th igs LLC Wde,... v.oo County Bd.protest is filedthat the petition of Elections 123 Ohio St. 3d 260, 915 N.E,2d 1187, 2009violates any requirement established by law. Ohio 4980, (2009).

(3) The candidate's c d di acy than ore petition vio- Lacheslates the requirementsbf this chapter, Chapter 3513. of Extraordinary relief was barred on the basis of laches wherethe Revised Code, or any other requirements estab- the city delayed £iling a protest until 119 days after thelished by law. irutiati4e petition was£iled with thity auditor and 56(B) Except aft h e cityas otherwis e dayr te audit s$e provided in division oforceriied the petition to the board of

section (C)section orthisRevised Code, a board o 3513.052 [3513.05.2] of the elections. The city then delayed another 26 days after the

not alidate State ex rel. Cityprotesbwas derued to £ile an actionfor extraordinary relief:ectiorons shn

alli

any declaration of can fdid eIacy om natingtiti Elpeonections 123 Ohio St. 3d 439, 917 NE2d 263, 2009 Ohiounder division (A)(3) of this section aftet the fiftieth 5523, (2009).

day prior to the election at which tlie candidate seeks U»justified 102-day delay in fillng a protest against thenomination to of$ce, if the candidate filed a declaration sufficiency of the petition amounted to laches znd barred theof candidacy, or election to office, if the candidate filed Prohibinon action: Mason Ci Sch.a nominating petition. Bd. of Elections, 107 Ohio St 3d 373D840 N.E.2de147, 2005

(C)(1) If a petition is filed for the nonlination or Ohio 5363, (2005).

election of a candidate in a charter municipal corpora- Payor and payee statementstion with a filing deadline that occurs after the seventy- Pursuant § 3501.39 3,fifth day RC O( ) the Secret

y before the day of the election, a board of responsible for determi;ung whether, on a^ of State isrticul

elections may invalidate the petition within fifteen da sdeclaration of candidacy andpetltion of a statewideacandidateaafter the date of that filing deadline. y satisfies the requirements of RC

(2) If a petition for the nomination or election of a OpimoncNoa2006-004a(2006). and 3501.381, and rejectingcandidate is invalidated under division (C)(1) of this , `3' Peflflon if it does not.

section, that person's name shall not appear on the Prohibitionballots for any office for which the person's etition has There was no requirement under RC §been invalidated. If the ballots have al eady the board of elections to conduct a quasi-judioial hean(ng onprepared, the board of elections shall remove the nameof that nerson RC t§s 3513.31(I^eTi„ ^a"r^date was properly certified underf,,,.» .>,,. t._n _ . .

e Cis nnt e e ectmn. If the name Electtons, 123 Ohio sr aa ose ^, a3Il ounty Bd, of-^ uV cne extent practicable Temedy: State ex rel. Scherach not available as ain the time remaining befor th 1 v Lor

1°`iOU neIOre tha dav,.rF6,. °04a, 1zu(j9). .__."°" °1, zuva Vhio71_ ___ , , --'-• u•- pcrson are vnid an.] ^h..n __.

151 v H 3, § 1, eff. 5-2A6. , 149 v H 445. Eff 12-23-2062; ho ahon of the election faw^',

iHISTOHY: 141 v Il 555 (Eff 2-26-66); 143 v H 405 (Eff "h^ g^mOt ^ 90 Private canse of action for4-11-91); 146 v H 99 (E$ 6-22-95)•

Effect of amendments

151 v H 3, effective May 2, 2006, in (B), inserted "division (C)of this section o{,, and added (C ) .

(A) As used in this section:(1) "Harassment in

mea violation of the election lacv"ns either of th f lle o owing:(a A fny o the fllioown t fg ypes o conduct in or abouta polling place or a place of registration or election:

PI;IMARIES, NONIINATIONS

Cross-Refernnces to Related Sections

Cowiting of wiitc-in tvtcs, liC i; 1351:3-33.Forni Of prunurn L:dlut. KC 13513.11.

Comparative LegislaLion

Writo-iu rc'lpiirrments:(;A-C;J I?ItvCodo ,961)0 et ,ectl, 15:353FL-Flu. Stat- 51 Illl.-N^. IUI 5606- 1IIIS6I1SItrl(I ILCS j1 5/I3-I6.1,5/INJ.LLN-13iuus lud. (:nt3c Auu- ^ 3-S ^3:5KY-KIiS §1 1 17.1-15. 117.?65Ml-NiCLS §§ 108.537- I65.7971)NY--NY (a.5 ILlec j 6-164PA-25 l'S. §^ 3963, :3007

Research Aids

Write-in utre':O-]ur3d: Hlect A1 1'2ti, 1.75

ALR

Validith of mrit'v-in cutr wlterr cZmdidntrs sm-nwne unlc istviitten in on Ii,dlot SG ALI32d 1035.

Law Review

BturGclc c Takushi: deatL. uf I)t.nald Doel< as .L [>alitieal k^rcNote.31 CAP. U.L. tiec 49T (191)31.

GeurcJlcPmtr.vt,e o

INDEX

id:

GenerallvIt ts nnt necevs.ur,to pibside swite-in sFace nn piimeuti-

election btdlots Ini the olFice oF inember of tic stutv crutralcommittrc of u holitic:J ttartcin Ohio. or delequtu or altornateto the natioinJ cuucmution nf u hnlitical p:uh: but sncliweite-in slmce nnist 6c ItmsideJ tbr tho ufiicc oF ntemher oftlle conuttcentnd cvmmittro of snah politlcal I>:vh-r 19711OAG No. 7Il-I)1I I I97 OI. ^

TheofAeeufntrnihcroftho conntccentrnlconmiittceufupohtical parhin Ohio. boink a pnhlia ul}ice, miut Jppear nnthe balfot e^rn t6ongh nn cundidutc luw ynalifiod to hucv lii..'name Inintt-cl on tht- hallat fi.r tlu" uffia,- iu nrtlcr that tn[rscast for t^ligihle mrite-in c'.wdidxtccs c'ml 6e tvno[r'd. 97(1OAG No 7(I-III I (1970).

Protests against wtite-in cxmdidatetiThc prolee't .i,stiavt x srcoud tvrite-in nwdidutc Ibr tlje

inavor:d race cva.s nut timrlc: SCite r, rrL LcncIi o. (]nimKlCtu I3d. nf I?leclinn,a. 811 (Ihiu }t.:3d :311, 68(i 1v.1'3d 198(1997).

Wltere tliereTs nu Puci,alon Tu anc NILte Statnte nr iu wnlocal ndt- Ibra Ixntest Ivucrdinr I" fbrv thc huurtl ofvloctiniato challonqc tho c,ilidite uf :i ^rrih-iu r:mdiducv, th'- uiti:dapP" - t l ui li8apltii -J 6c tLe hu u I is Iin:J uba nl all, "dinusof fraud c v'rnlttion- ulmsr uI disc it tiou nr c'lv.u tliai •s;;ud nfstuhites nrnpplie:dde IrLul Isrm;siuus- IiC 31 351 :3 Ild.l: Posterr Bourcl of T;Irctiouz- 53 OIiSo Ahp. 3d 21:3, i 06io Of. &I282,378 Nb:2d 13iI (19-, :1

§ 3Jr1.3.QJ~ Filing of declaration of camdi-dacy xnd Pclition; protests; ccrtification of hnllotforms.

Exc6 lcrsun dnsiring Io hvcuuic n cmldidtdr liir aparty naninutiou or Inr rloctiun to.m ufftcv or hositiun

§ 3513.05

to he vo[rd fir .)t a,priman= ele^ctitum, eueptprrsonstlc.siring to become joiut c.mdidates for the ofHces ofgovernur und lieutsnmrt gocernor und eseept as other-mse prucitlc-cl in section 351:3,051 [351:3.05.1] of theHctisetl Code, shnll, not later titwi fimr p.m. uf thrseveutr-littlt d:tc bctbrc the duv uf the primalNolcr-[irn), orifehc priinan elcc•tiun is u prc_tiiclcnti;d pritnmyeliction, not Iater than fonr p.ul. of' the .sistic•th d:tvheli>re the cLrv of tlte Eresidentlal piimurv clection, fileadecl:tr.diuu ulc•amdiclaca mld petition uud p.ry the fecsretluil-etl nnder clhisions (A) zmd (F3) of sectirnt :3.51:3.10of tlie Re\iscelCode. Tlle decl:trntiou of eandichtev and:tll sep:u-ate petition papers shall be filed at the smnetime as one instrmnent. When the offices are tu bevoted for at a pliniarv election, persons desiring tobcconie jointcmididutes fbr the oFficvs of ,^orentor:wdlieritenmlt guvernor sliull, not later than fom- p:m, ofthe sccenh-fifth clcnhefore the duc of the prini.utielection, contpk with section :351:3.04 of the ReviseclCocle. Tlle proshec2ice joint candidates' cteclaration ofenndidze•c aneI all sepantte petition papers of c:uidicla-cies shall be filed at the same time a.s one utsti-umeut.Tlte .secretw,- of stute or a boarcl of elecfious shnll nutaccept filr fflinv a declurution of cautliducv and petitionuf a pei-san seeking to heconti> a ctmdiclate if' tlnttl>crson, for the sumr election, Il,u ct6reachfilecl ade claration of cundicLicc or a dec•lartrtion uf intent to be:t rvrite-in amcliclnte, or has hecome a c•auldifLtte btitheIillin,L of a cncancsmxler section :3513:311 of thc13evised Cnde fi)r uuv fecIeral, state, or c•otnihu$Ice, ifthe declaratiou of c:nulidacv is fm- a state or cunnhoflice, or Ibr :ntc nnndcipaloi- tosvnship office, if thedcclarrtion of canclitlacro is filr a mmnicipul or tosanshipnffise.

If the declaration of candiclaawdecl:ne.s a eandiclcteccvllich is to bc subinittcd tu electors tln-onohont theentire ,stttte, the petition, inclndiuL+ a I>ctitiutt fnr (oiutcm)didate,s foi- the officrrs of govcnior wnd lientcn.mt,t;ot:ernur, shull be signed bv at Icast one t6ousttndqnelified elector-s wlio ine iueinl>ers of thc ti.unc politic.J partc as tlic candidatc• ur joint candidates, antl t6cclecLuation of cundidac^and petitinn slrtll be filed witLthe secretanof st:tto:hruaicled that the secrctanol,st,de shull not ucccht ur filo ,mc snc6 hctition appo:oiqs;un its fucr to enntuin sit,mubu'es uf morc {Iren tltrr•ethonsund olcctoi:s.

F„ecept as othcnvisc l)rmided in this hwagraph, ift6c drrlwution of ccuuGducs is uf unc• thut is to hrsnbmittrtl unlc to clectorv withiu u tGstricC pulitlcalsubdivi.vLou- or Iwrfiou tlicrcof, tht^ Iletitiun s6;tll hosi}[nccl hc not lesa^ fhan lifh(Itt:diflcd electorx 'Ndio urenien)bors of t6e ,swur politicul pwts' a.a tho lioliticalpwtcuf a-liic6 th" c:uitlitlatc is « mcinbri: If dicclrclcu.dion of cantlidctc7is for ptirLtuoniintttinn :rs acwiilithdo for montber of ILr lioklntivv mithurih nf aiurtnicip.d curtwration clrtted Itc wwd, thc IxtitionsLull I)c ,<itiuod hv nulIr.sv tLan hvrntv-livc' tlrntdificdclecturs trlm art, iuomhoi-s of tLc polilicttl I>arte nfMucli tlir cantlitltdc iv;t irtnbcr.

No suc6 hctitinn, cscopt tLo I^rti[inn ti» ac`.wditlctcvthn[ is to Lo snbiui[totltn cloc[nr.v thiunqhunt [6t• cntirrxtatc, ,alrJl hc uccctrir(I fnr filiug if it aphvurs tu coutuin

§ 3513.05 ELE,C'1'IUNS

on its faoo si, I 'natnres oimore than dnrr times tlieiuiniiwuu mioilier ol n'wnatm'cs. Whcln u petition ol acaudidate h;u been acreptcd fnr Nlqt; bv zt hoartl ofclcctions_ the petition shull not he tlecmrtl invalid il.ultou verificatiou nl.siUandisres cont.dnrd iu the petf-tinn, the bomd of electious fiodR the nnmbor olsit;natw'es ucceptod e\ceeds tlircc times the uiniinnnoumuber nfsignatures rcyuircd. A board olf elcctiotisnmv disc•ontinne verifiing, signativc-s ou petitinns wht-nthe mmmber ol verified sifmtttnies eynuls the miniumnin'<psired mmiber of <1nuNfied sil,nuitnres.

11the decltnution ofcitndidacr deelare, n c,mdldicvfix parh^ notninatitin or fur election as a a.mdiede of;minterniecliate or minor partp, the mininnim uumber ofsiu'nntnres on .snch petition is onc-hulf the mhilmmuInmober provided in this sec6on, except that, when thecmididacy is one 1i>r election as a memhe- of thc statecenirnl conmtittee or the c¢» tnhcentral crni unittec of apolific.d party, tLe minimmm nrnnber sLall he the sanielor an intermedinte or niinoi- part.u fn v major parh^

If a declaratlon ofcmidiclacyis one for electfon as ainentber of the s-tate centi-al connnittee or the comth^centi,tl conunlttee of a political partt: the petition shallbe si,ied by five qutdified electors of the district_c•onntv, ward, township, or precinct withni which elec-tors mav vote for sucli candidate. The electors sir,miul;suc•lt petit5on sltall be membeis of the s<nne politicalparh^ as the politic.d party of m=hich the cmdidate is amember.

Fo- pnrposes of .signing or circnlating a pet'ition ofcancLdnex- for party nominxtion or clec5on, nn electoris considered to be a mei nber ofapolitical parh- if theelector voted in that pmtvs primanelection within theprec•eding hvo calendm- vews, or if the electoi- clicl notrote in an}' otlher party %s prim.vy election within thepreceding two calendar vears.

Ifthe clecluration of candidacv is of one that is to besubmitted only to electors within a comity-, or withinkadistrict or snbdiNision or part tliei-eof smaller thmi aconnh; tlrepetition shall be filedN.-itli theboard ofelections of the counh•. If the declaration of candidacvis of one that is to be snbmitted onlp to electors of adistrict or subdivision or part thei'eofthat is situated inmore than one countv, the petition sliall be filed withthe bomd of elec45ons of the cotmtv ^vithin which themajor port9on of tlte popnlation the-eof, as ucertainedbv the next prec•ediug federal censns, is located.

A petition shall c•onsist of sepmate petition papers.each of whic•h sliall c•ontain signatnres of electors of<mlv one c•omrtv. PeBtions or separate petition ptperscontaining simiattues of elector.s of mrn^e than oneconntv shall not therelrv be declared invalid. In ca,sepetitibns or separate petitlon papers contuininy siKna-ttve s af electors of inore thxn one conntv are filed, thebomrl slmll cletermine the cronntc frotn which them.qorih, of signattn-es c•ame, and onlv signahnes foinsnch conntv sltall lre colmte,d. Signatm-es f4om nu»•other connty sliall be invalid.

Each separate pefitlon paper slmll be eirclilated bcone person onlv, who shall he the candidate or a jointcandidate or a meiiiber ol the same political party astlte candicLxte or joint candicttes, and each separate

130

petitiou palxl .sh:tll ie "Iov,-rnod kthe rnh•s net forthin scrtion 3.501.38 of ihe Re^isecl Codc.

'Pho zccrehtrv olstute shall prowpdhtrwiswit tu each

boantlanchscparutr pctitiuu pttpcra ofi°te li potition

uccuml>auviyill u docl.untinu uf t:uuliducv Iilyd saith the

secmt.u'c ol stute a3 hurltort to coidain si,c,niahin's ofcleotois uf thc cunuttof snch board. 'flu- board nf the

iuost 1>opnlous c'onnl}of a dislriot shall promptly

tr.tnsinit to rtach hoard within snch cli,atrict slich sepa-r.de pctition papers ol cach petitiou acrumpunving adcrl:mttiou ofc.nldiducv liled witli it a,v pnrport toamtaiu si,ymutures ol rlr( Wrs of the cumihof eachsnch hourd. 'Che board of a comihNvit6iu which themajor portion ol lhe popnlutionnfa snl)divuion,sitnated iu more t11m1 one c»nnht is locatrd, sliallprompth-transmit to tlie boilrd ol caeh other countywithiu %N'hich a portiou ol stich suh<lmsiun is locatedsuch .cepuratr petition papers of cach petition accom-panriny+ a declaration of c:mdidacc Illed with it aspmhort to c•ontain signatnrcs of elector.s of the portionof sneh snbdivision in the eonnK ofeach such hoard.

All petition papers .so transmitted to a board .wd allpetitlrnis accompmnin,^ de clurtLLions of candidacv fileds+ith a hu:nd shall, nndcrproperre,^d;dions, be open tolntblic hispecfirm imtll fonrp_m. of the sevenfieth daybefore the dmof tlie neat prlmm-y electiou, or if thatnea-t primm-v° election is apresidential piim.n^ election,the fifh^-fiftli dnv befise that presideiBal piimaryelec•tion. Each board shall, not later tham the sixtv-eighth <lay befbre the dmof that prinuu-N clectlon, or ifehe primmrN election is apresidential printarNelection,not Ittter thim ttie fifh third daN hefore sndi presiden-tial primarc election, exaniine and dete nnnie the vulid-it< orinval9ditv of the signutnre,s on the petition papersso transmftted to or filed NNith it.unLshall retnrn to thesec•retml° of'atate all petition papers h:msmitted to it bythe secretan, ofstate_ togethe' with its certificst6mt ofits deterniinafion as to the v,diclitv or imalidih+ ofsignatmes tltcreon, ancl sh.dlretnrn to each otherboard all peti5on papers transinitted to it b\, snclrboard, togetherwith its certilicafion of its dcternyina-tion xs to the valiclihoi- im-ali<lith° of the simnattnestliereon. All other mutters aftectinE the s'abdihy orinvttlidihof snch petitiorn papers shall be detenuinedbv the secretmnof state or the board with svhom snehpetilion papers were liled.

Protests afiainst the cmtdidacm of anc peison filin^ adccFaration ol cmididac° for psrtc nomination or forelection to xn office or positlon, as proxitled in thissection, maY be filed bv auy qtmlified elector who is amemher ctf the sante political partus the candidateand who is eligible to vote at the prin,uv election forthe candidate N+bose declaration of c•mididamtheelerc•tor objects to, ol bN the tontrolling cnunnittce ofthat political partv. Tlteprotest slsulI be in writin^, andshall be filed not later th.m fonrp.w. ol the sixh-tbnrthdav before the dav of the priman election, or ifthepiimwrN° election i.s a pre.sidcntial pimaiNelectlrnn, notlater thLut four p.m. of the fortv-ninth dmbefore theclnc of the^ presidential prin¢uN election. The protestshall be filed Nndth the c•leotiun oflicials Nvith whoin thedeclaration of candidacv and petition wa.s filed. Upon

A-^,51

1J

atifi

pd

ct

30 131 PRIMARIES; NOMINATIONS

the filing of the protest, the election officials withwlroni it is filed shall promptlv fix the time for heaingit, and shall forthwith ;nail notice of the filing of theprotest aud the tune fixed for hearing to the pe.rsonwllose culdidacy is so protested. They shall also forth-with tnnil notice of the 8nie fixed for sncll hearuig tothe person who filed the protest. At the tinie fixed, suchelection officials s1mtl hear the protest and determinethe validity or invalidity of the declaration of canclidacyand petititm. If they find that such candidate is not anelector of the state, district, county, or political subdi-vision in which the candidate seeks a party nominationor election to an office or position, ot- has not filllycomplied with this clmpter, ttle candidates declarationof candidacv mld petition shall be determined to beinvalid and^sh.ill be rejected; othelwise, it shall bedetermined to be valid That determination shall befittal.

A protest against the candidacy of any persons filinga declaration of candidacy for joint party nomination tothe offices of governor and lientenant governor sh.ill befiled, heard, and determined in the sane nlanner as aprotest agafnst the candidacy of any person fiting adeclaratlon of candidacy singly.

The sec-etary of state shall, on the sixtieth dav beforethe day of a pimary elecHon, or if the primary electionis a p-esidential primaty election, on the forty-fifth dayhefore the day of the presidential pimary election,celtify to each board in the state the forms of theofficial ballots to be used at the pri;naiy election,together unth the nanles of the candidates to be printedon the ballots whose nomination or election is to bedetermined by electors throughout the entire state andwho filed valid declarations of candidacy and petitions.

The board of the most populons county in a districtc•omprised ofmore than one connty bnt less than all ofthe coImties of the state shall on the sixtieth day beforethe day of a p;imary- election, or if the primary elect3onis a presidential p;i;nary election, on the forty-fifth daybefore the day of a presidential primary election,celtify to tlte board of each c•onnty in the district thenames of the candidates to be printed on the offieialballots to be nsed at the primarv elecHon, whosenomination or election is to be determined only byelectors witilin the distiict and wllo filed valict declara-tions of candidacy and pefitions.

The board of a connty Ncdthin which the majorportion of the popnlation of asrbdivision smaller thanthe county and sihlxted in rnore than one countv islocated shall, on the sixtieth day before the diiy of aprtina;y election, or if the prinlarv election is a presi-dential primarY election, on the forty-fifth day beforethe day of u presiclen6til prinlary election, certify to theboarcl of each county in which a portion of thatsubdivision is located the names of the candictates to beprinted on the official ballots to be used at the prima;yelection, whose nomination or election is to hedeter-inined oniv by electors within that sttbdivi,sion and wllofilecl valid declarations of candicLtcy and petitions.

HIS'TORX 134 v S 460 ( EfP.3-23-72): 135 v H 662 ( Eff 9-27-74);137 v S 115 (Efr 3-10-78); 138 v H 142 (ELT 10-26-79); 138 v H1062(Eff3-23-81);740vS358,,§§ 1,3(EfY4-3-84);141vH160,

§ 3513.05

§§ 1.3(EO'7-12-S5);141vS45,§§ 1,3(EfT5-2-86);143vH36,§§ 1, 3 (ECl' 1-1-90); 143 v H 237, § 1 (Eff 7-27-911); 143 v li 237,

3(EO' 5-31-92); 144 v H 700, § 9(EfT 4-1-92); 145 v S 150 (Eff12-2993); 146 v S 9(Eff 8-24-95); 148 v H 157 (Eff 9-20-99); 149v H 445. Eff 12-23-2002; 151 v H 66, § 101.01, eff. 9-29-05.

The effective date is set bv § 612,03 of 151 v 11 66.Not analogous to fotTner BC § 3513.05 ( GC § 4785-

70;113 v 307(338); 114 v 679 (689); 122 v 103; 123 v 380;125 v 713(771); 127 v 46 (Eff 8-20-57); 130 v 827),repealed 134 v S9. Eff 3-23-72.

Effect of amendments

151 v I1 66, effective September 29, 2005, insertc-dfederal"in the first paragntph andmnde reLtted change; inserted-candidate or joint" in the tenth parxgraph; and tnademinor stylistic cltanges.

Cross-References to Related Sections

Challenge of person aHempting to vrote in ptinlan- election,RC § &513.19,

Clerk and deputy clerlcs of numieipxfl courts, RC § 1901.31.Counting of wtite-in votes, RC § 351,123. . .. .County central committee nlav deter;nine that candidates for

committee need not file petition, RC § 3513.05.1.Tleclaration of intent to be write-in candidate, RC

§ 3513.04.1.

Disqualificafion by having voted in different party primarv;exceptions, RC § 3513.19.1.

Filing fees for candidates and persons proposing ballot ques-tion or isstte, RC § 3513.10.

Fornl of declaration of c•andidacv; petition for candidate, RC§ :3513.07.

Member,ship of controlling cotnntittees, HC § 3517.03.Municipal judge candidate, RC § 1901.07.National conven5on delegate.s, BC § 3513.12.Rejection of petiHons, RC § 3501.39.Shrtements of candidacy and nominating petitions for inde-

pendent candidates, RC § .3.513.2.5.7.Unqualifled persons signing petitions, penalties, BC

§ 3599,13.

Comparative Legislation

Declaration of candidacy:CA-C.d E1ec Code §§ 13, 106, 8550FL-Fla. Stat. 99.092, 99.095IL-10 ILCS 5/7-10IN-Bnrns Ind. Code Ann. § 3-8-2-1 et seqKY-KRS §§ 118.125, 118.165MI-bICLS § I68.5.53NY-NY CLS Elec §§ 6-1:30- 6-132, 6-1.44PA-25 P S. § 2872.1, 2872.2

Researc6 Aids

Declaration of cmndidacy:0-,jur3d: Elect §§ 75. 84, S6-90, 03-95, 262, 2&1, 265Am-Jur2d: Elect §§ 2.35-237

ALR

Mandatnry or directav character nf.sta6rtory prnvision as h;6me of filing cundidate's applieation or certiflcxtte ofnoinin:t6on befk)re Frimarv or election. 72 A.L.R, 290.

NonreGistration as affectlng one^s qualificatinn to hold publicofficr. 123 A.L.R 1117.

Residence or inhetbituncy within district or other polifical unitfor which lie is elected or appointed as a neces.smvgnafification o6 officer rncandidatc, in absence of expressprotdsion to that effect. 120 A.L.R. 672.

§ 3513.05 ELECTIONS 132

Ri31tt to n'eelc uuniinatiun, or to hev6me cuuditl.dr, liv mrni^ A distriet v.siublishrd hr t6e reapportionmcut plmi ic not a

thun oue ollicv in the mne ckr6un. 94 AI.li3d 557j -nnbdivdsiou snrdllerth.m u coimhwithiu thc mcanni};of this

CASE NOTES AND OAC

C^nrwit^tlinn,dihCnurJlvCaudid.irr lor nCw^did^^ov ^^I'Cirul:ei^r.(:nllvirrid itt:Irl<De:ItL , d awdldvtrI)ntv nf Il.c ii ia,urou)al,etlu.. pnn'otiFulor regimrntluu ol cwJidatrIr.Jse ny;istr:eirni iL f rirzd,ttnr

INDEX

Imou^p:'tiblr Jts^Lu:^n" nI ut rtuI JiJLuiIludicinl ollieisf nlll^ lal IY91t'\\vl^l ! I I I f,^l tNe i ti liar u

ott dkI i LItrq t rutal7vrriw<ILdmr

firsidoucv nTluirrnirntSlRning of wnrv- tlrm onr prtitLin InrSt:Lnfl:vll 151 r( '\It\\' Il\ I)II.LIYISvvitrLing of panirs'lima litr iuvalttb,ition'17me lor rcmuv:J fruw 6.dloiPJrito-in cnndiJatr

MRu

ConstituHonaGtyOhio.stututes seel.ina. intcr alia, to prevent'raiding" o£one

partr bv mentbers of arrodfer parh, mnd seekini?, to preclnclecan(lidates f)roni ulterinq t9i eir political pattv affiliati ons foropporttmistic reusons, did not iucidiousk discriminate so as toinfrioqe USC,:onst amend I and X1V: Lippitt ,- (:ipollone, 60OhioOp.2d:3fiJ. 337 P. Sapp. 1405 (N.D. Oliio 1971).

Generally ofBeeised Code § :3b1.3-05 re<pums that the declaration of

candldacc and tdl separate peti5on paper.s be filed at tltesametime as onc ins'tnunent: State e, rel. IvlcDlil}an ^c AslttabnlaCh'. Bd. of Elec9ions, 65 Ohio St. 3d 186, 602 N.E.2d 6:31

(19cJ2).The f,eneral rnle in Ohio is tlmt election statutes are

mtmdaton' :md nmst be stricth= complied with. Becauseappellee did not File his m:cster form at tLe sante time as hefiled hi.s part -petitions svith the bowrd of elec•tious_ lie was notertitled to h:tce Jris nwne pLued on the ballot in the primanelection for mnnicipal judge: State ex trl. Senn ,: Board ofElections, 51 Qhio St. 2d 173.5 Oloo Op. 3d 381, 365 Nl E.2d879 (1957).

A candidate fornomfnation at a prinuun' eleMion mac n"ulceas in:mv separate cleclaration.a of candidacr, as there areseparate petition p;q>ers. sn lonr as there is no conflict: Statee,, rel- Kav c. Board of ElecBtrns, 112 OlLio App_ 4 15 OhioOp 2d 29fi 167 N.E.2d 112 (1960).

A wut of mtmdamus vndll not be issned vvlLere the bnard ofelections coustrned and applied tlru sectlon in accordancewith its uahv;d uncl fimdmnent:d meaning: State es rel.Burstaller v. Bom'd of Electlmvs, 1.49 Ohio St 19:3. :36 OILioOp . 541, 78 N,1.2c1 :352 (194S).

U n lt r this section t6e determfnntinft of a bo:nxl nf clec4ionswhether mlator hud fnllv complietl vvdtlt the Imv relatin,k toprimmy elections ;md wllether his decltu;tTion of canditlacGwas vahfl is fintd: State ex rel. Lemert v Baurd of Elections.1,49 Oluo St. 211,.36 Ohio Op. 549, 78 N.E.2d 3('i8 (1948).

sectiuu dc.^'pito t6t-wa, Ir.,phic:d arruiut-luded iu secL district,

wirl ull cuudidates ftling tlcclarutioua of cantlitluc)' Ibr nomi-nat'iun hv cle•ctiuu to the nflict- ulreprretutul'ivt- ta the

,re-ner:d it .scinlilc must lile petifPaur eniitainbt{ niffieientcij;nttbtres to meet the re,^uireinents u1thut .vectlou a8 theyupplvto r.wdid:LLes'tu 6e e t-ctc^d Iium :t comth' ur u cnuL+res-

yimwl dish9ct sm;dlor tlr.tu u connh: 1966 (lA(: Nu. (i

96(i)-

Candidacy for mulHple offiee.vTlie .vccretwy of state luts thc unthoritv to fiml inv:did a

dec'F.nution of c:mdiddcc litr uomincRiou to tLv ofllcr of^Aorernoi liled by a person \vho hm previuavlc liled, :md uoBwit6tlruvvm, a decdxrutlon of c:mdiilucv for uominutiou to theofOce oiUnited Statns reprosentafive at tlt(. vamtprinruvcle.ttion (194^9 OA(: Nn_ 2922, p. 129 tutd 1993 OAG No.9:3-052, approved and fitllo\rcd): OA(7 No. 20(2-01(1 (20ID2),

Candidacy of pcrcon in arrnyA decl u dton tf c'm[hd ¢v lot tht office of tomti, t n tneer

mdan tccompun'ing pttittonpreuutttibvoronlnhtlfufapetson in thc umv, ntn uot Ic tl6 bt itjectad fw fllingmetok becaiue an uidei of the secret.v of Nvw piohtbits apersan in die armv f(m) Lecrmiinn a cmwdidate: 1944 OAGNo.66'3.5(IcJ44).

-Collnternl attackW6ere tlie circulator of .t autdidnte:s petition is reni.stered

orith tlie bourd of electlon.s aud the recorcls ofthe bo,nd ofelec5oox represent snch omdator to he a quali fied elector thequLdiAcaHons of such ciretdator a.s a qnLdified electur cunnotbe attacked collaterulk in a proceedin. 1, bef6re tlie bnard ofelecfions based npon u protest to the petition eo c•irc•tduted farand filed bc .snch c;Lididate: State es rel. 13ass v. Board ofElections, ,1.55 Ohio St.:34S, 47 Ohio Op. 201. 105 N.E.3d 414(1952).

Death of candidateA boarrl of elections is withmrt anthorihin l:m, to remove or

caase to be renioced itont the hallot tn be x<vted ,tt'a printiuvelection tlte uume of't decrsed peaon vvhose dezrth occtrrreduftar the filntIg ofhis declarrrtfon of cave6dacr and bt=fore th¢dat of snch primtu, clection: 1948 OAG No. .31(I(I (1948).

Duty of boards of elecNonBesised Cocle § 3501.11 rerlnires boards of elections to

review esamine and c•ertih'tlhe sufficiency and x^tltdill ofpetitions mtd nominahng papers. RC § 351:3.05 provide.s forprotests ol declmations of eandid:te, filyd in ptimzuv eleetimisund declams that the decl.sion of a board of' eleci'ion,s as to aprotest is flnal. A stntuto»' prrrte.st is:m adeqnate trmedv thcttwill preclude is.sn:mce of'art eKtttordinanvTit. Therefare, nre}ator must file aprotest on telerant issues before biintn,ing unaction for un extraardinaewtit based on tho,se isares: State exrel. Shumtde v. Pottare U.N.°13d. of Election,s- 64 Ohiu St. :3d12, 591 N.E.3d 1194 (1993)_

Election protestThet'e is no mmnnei pi escrihecl br stabute in "hich a bo;nd

of elccfions nn¢t conduct u ltcariqg, un u protest to adeelarat'ion of cmcliducv and petition for noirrtnatiou ut apritnarv eJectiun. Auc reasontdvle investigati<m condncted in[;ond fuith satislfes the stntntorv recpnreinents tbetebc Statec, ml. h:n' z Board of @:lec4ion.a. 11°_ Oliio App. 4, 15 OhioOp. 2d 296, 167 N.6..2d 112 (1960).

False regis67ttion of eandidateNVltere a protest against a r,mdidacv i.s filed pmsuant to this

section, nn the sole gronnd that in 19.30 the candidate f:J.selv1,1>

133 , PRIMARIES; NOMINATIONS

stated in his regintratior udth tlic board of elect'ion,s that hewas born in Ohio, wherens, he was born iu Ireland, und, uponheaiing, it is established that his pa'ents immigrated toAn>ericn about the time he was born und that he could notcletermine with ceitaintv wbether he was born before or aftertheir mn'ival in Ohio bntthut h9s honest belief at the fime of hissaid registration was thathe w.u born in Ohio.md itis fiirtherestublCshed that his futher becvune a nattualized citizen ofOhio in 1892 when the candidate was seven vears of .iee, thebotnri of elections is rcqtured to overrule the protest andsns'tain the declaration of cancliclncv: Shtte ex rel. MaC)owan v.Row'd of Elections, 157 Ohio St. 428, 47 Ol>io Op. ;323, 195N.E.2d 639 (19.52).

False registration of circulatorWhere the petition of a candidate for the office of clelegate

to the national conventlon of a political part' is cireulated bvone svho is registered svith the honrd of elections u.s an electorwith tlte reqnired re.sidence qtutlificntlons, and the candidatewhose petition is so circulated Ims no knowled,ge of factswhich would disquulifv the circulator of the petition and reliesupon the registration records of the board of election.s asindicatinn that snch cireulatm' is a qualiffed elector, and thepetltlou so circulated is filecl as required bv Inw at least ninetvdays prior to the date of the prinnmv election, said petiHoncmnot thereafter be rejeeted by the board of elections and thecandidate involved therebc be di.sqnalified as a candidatethrough a decision of the board of elections, mude upon asnbseqnently filecl protest that the circulator of the petitionhad mude false nnd nntrue staten>ents as to her place of bitthand citizenship in connectiou with 1>er ie-ish^adon: State exrel. Ba.ss v. Ho,trd of Electioas, 157 Ohio St.:34.5, 47 Ohio Op.201, 195 N.E.2d 414 (1952).

Incompatible deciaradon of candidacies by same personA person cannot lawfnflv file, in connec8on with the same

pri>narv election, declarations of cnndidacv to become acandidate for nomina8on to two or niore incompatible offices;and, aonseqnentl}, a boarcl of electlons shoudd rejeetaseconcldeclaration of ctmdidaay of a person >vho has already filed adeelaraCon of crmdidacv in connecfion evith the same primaryelection, if s>rch second declaration of ctuididacv is for nomi-natton to m> office >vhich is hncompatlble svith the nuedesi(,n>ated in the flrst 1948 OAG No- 2922 (1948).

Judicial ofHcesNeither pnblic policv nor electirni laws were v9olated where

a candidute withdrew a precinus'Ivi cerh'fied petitinn for a courtof appeals lud„oship xnrl Rlerl u petition for a comn>on pleasIndgeship State ex rrL O7onnell c Cuvahog, C;h Hd: ofElections. 1:36 Ohin App. 3cl 584, 7:37 NlE.2d 541 (2000).

Judicial reviewIn view olthe mancLtte of the Ic islative braneh of the

govenment in thi,s section that the decision of u partlc,Jarhoarrl or anthnriRshtdl be finul, the sttpron>e crourt h,tv nnight to <tttempt to set aside a deci.sion nmde bv a bmud ofielectiona where fimrd or,Gross irre^m, darih has n"t intervened.This is ptrtrc>da>Iv bi>e where a purcl>political qnestion isinvolved: State csrel. Pord v. Hoard of Elec-tir>n.s, 167 Ohio St.4449 (451), 5 Ohio Op. 2d 141, 150 N.E.2d 4:3 (19.58).

A finding of the board of elections re4.mlinv the vo6ngresidcnce of a c.mdidate svill not be dishirbed bv u cointnnless the eeidcnee befhre tbe board wits snch as to re^fnire asa m,ttter of I.nv a drtennina6nn that the candidntr, votingre.sidenm wtu not as statrnl in his doclw.ition of candidacv Inother wnrd.s, if there was snhstantiul evidence to vastWn thatdecision, the deci.siun of tLe board must I>e xnsteunod. In sochan iustancr>vhere tben-is no cluim of anv frand or curruptionon the pait of the board, this court cwmot say that the board

§ 3513.05

abnsed its di.screfion: Sttte ex rel. Klink v. Eyric•h, 157 Ohio St.1338.47ObioOp.198,105 N.E.2d 399(19.52).

In the absence oP finud or bad fafth, the c•ourts maY notovernde a finding of a board of elections, having jurisdictionof the subject inattet to the effect that a declaration ofcandidncv and peti5ou of a candidate for nomin¢tion to apublic office is valid, where no protest- agiinst snch declaratlonund petition was filed w4th such board within the timerequired bv .stattde: Pierce v. Brushart, 1.53 Ohio St. 372, 41Ohio Op. 398, 92 N.E.2d 4 (1950).

Most populous countyThe phrase_ 'most popnious county of such district,` as

used in RC § 3513.95, refers to a couuty not wltollv situatedin the dishict, where the portlon in the disttict is mostpopudons: State ei re1. Clantpittv. Rinwn,165 Ohio St. 139. 59Ol>io Op. 161, 133 N.E.2d 369 (1956).

Nomination requirementsThe signature of a ean(lidate on his own no>ninalling

peti@m1, as a si^>er of that petition, cannot be included indeterminfno whether sncl> petition contains the >nlnimmnntunber of signature.s reqtwed bv law: State et rel. Kucuiich v.Duffy; 22 Ohio St. 2d 61, 51 Ohio Op. 2d 94, 258 N.E.2d 1111979).

The necessitv for tl>e statement in the circvlators affidavitas to hfs political affiliation is indicated by language used inthis secflon requiring the petition ci rciilator to be a member ofthe same political parN sis the candidate, and by' the form ofthe nonrinating petition paper as contained in RC §.351.3.07:Stateex rel. Feim>.son v. Brown, 173 Ohio St.:317, 19 OhioOp. 2d227, 187. N.E.2d 890 (1962).

ProbibitionProhibition is an appropriate proceeding to prevent a board

of elections from placing a candidate's name on a ballotwheresucl> nune inav not lavvfullv be placed thereon. In a prohibi-tion proceeding, nohvitlvstanding this section that the deter-minttfion of a hoard of elections as to the validity of adecaarution of candidaey ".shall he final," a murt may in effectieverse such a decfsion where the tmdisputed fncts are such asto require a clifferent decision us a inatter of law: State ex rel.Iltgin.s v. Bromvn, 171) Ohio St..511, 11 Ohio Op. 2d322, 166N.E.2d 759 (1960).

Protests generallyThe boaul of electionSClid not abtcse its discrefion or clearly

disregmd applicable law in clenying a protest to a candidateseliglbiliN for t'he office nfcoironer: State es rel. Walls v HarcGnCtv. 13d.Off P:lecfions, 156 Ohio App. 3d 55 (2004).

RetnediesThe cehicle for challenfdng .t canrlidates qntJifications,

p u tici dm-Iv reside ncv; is a protext. An eleetion conte.vt mav nothe nvedusavchiclefi>ras.sertinganw>tfinelyprc>test:Portisv.Smnmit Cty- 13d. of Elecfions, 67Ohio St.:3d .590, 621 N.E.2d1202 (199.3).

Revised Cnde § 3513.65 e.sttblishes the statutoiy remedvfor proseceti ng a cwididaqv for partv nominxtims. A pttrtv whoignores this remcclv cannot later obtain relief throneh amand:unns action vicel:iqq to reqnire the board to declare theelec•k•d candidatc i eemdidae"void and to (nmpel the board toissne a certllicxte of nominntion placing relator on the ballot:.Stute c•s rel. I,ippitt v. 6d. af E:lection.s, .56 Ohio St. 2d 70, tll06io Op. 3d 193..341 N.It.2d 1129 (1978).

Requirements for candidacyI'ur,snunt to IiC Q(l :351:3.05 and .351.3.26.1, a hoard of

elrctinns muy nntcerfifvas vulidthe petition ofa candidate forconntv office who doe.s not reside in the connty in which lieseelcs offiee: OAG No. S4-025 (1984).

§ 3513.05.1 ELE(;T1ONS

Re.sideney requiromenl

6Vhrrc ILr c:wditlate ulijtrttal lo tLo lestiniuuc rca-hrd ut

tLe hl;nin); ou tLe validih of 1Le candid:drs uun. iualin,*

Imtitiou uu .rruimds tlud uu Invicelur te.s'tilivd ae tu Imrtrat7ilialion ond srhetLr-r t6er svem rtl3isternl av elrrlurs, Ilu•rlcini ailetl; t6e proteetuiN svrrr tluulilicd to lilo u lxotcn'Imider ( 111lulit^. Cotle^ Auu ,.51:3.115 6 cuixr tLev tarremeiolx-l's of lL cundid.itrs lx liticul Inuh wd svert re,r{ixtcred

m' eleetur.< ie tLe conutv svlirro iLo e;wditluto suqkld oflioL..Slate Es 13e1. ,Stiur e li iusrn Cun ntv 13d. oIPaect iuns, -OhiuSt. :!d -, - N.b:_ 3tl - 3001 t)hin LI?tiIS 3^55 (Fe6..30,30(13).

Under li(: ^ 351305 i wd 35 13.20.1, tw iudicidiral Ar6oIiles e pctition ta nm for cnnNr oflicv inust Iw u m.sidcnt of

the ouunN. TLvrc is. liosrerc i no >,etueml ittlinrrnit•ut ILut it

peisoo rlrcted to coiwtv uf&c uwst rrriiu rr-sidruce in tLo

eourtr tlLat lte cvue elected to xane: C1A(; No. SS-0571 IBSS').

Signing of mure than one.pefition for satne office

An electnr nnttsif,n titr pt-titlou wLic6 uccvnipnniv.e adecluration of cmtdidacc of morc thun onr c:mclidate ofvnchpers'owfs pulific.d parh' for a partlcnlur cnmlh oflicr: 1541OAC No. 1983 (1940)- [1938 C)AG p. 6S4, aspiooeJ anclfollmved]

Standard of review by bom'dA boarcls recew of a oaudiclacv nnder IiC 1 351.3.05 is

limitetl to RC: C:lrtpter :351.4. It does not iuchidc- possiLlevlolations ofR(. § '3517 (1.'3. State e rel_ Dwl m c: Mnhonm^Cth: 13d. of b:lecnons, 115 (Hno App. 3cl 150 654 N.E3(l 13591998).

The stmtdard ior resieving technic:J defects in decluratlanof cantliclaev aod peGtion pape's is sv6ether tLe defec•t emddetnae a.sig-lier to be cleceived or mi,slead: Stutc ex rel. C;reenc'. C:ases; .51 Oltio St. 3d 53, 554 N.B;3cl 1388 (1990).

Switching of parties

Resived Code § 73:3D8 mn.st be reacl in hmi materi:t vqtRCVf} 351:3.05 anc1351:3.19.Tlnrtsvheream:n'ori.selected,t,t membe' of one flarh- bnt Pnbliclv ss9tches to anot6er flmtyand cotes in its primaries. lie is 'xffiliated'scItlt the secqnclparhfor portso.ses of filling a var.tncti. State es re-l. I lerm:m c.filopfleisch. 72 OLio St. 3d 591. 651 N_E.2d 995 (1995).

Time for invalidation

Absent a oritten protest heing filed bc the cleadline, a hom dof electlons mey iiot innalfdate a decdara5on of emididacT ornominnt'vig petltion after the fi%eth dcq' 6efore u primun'election: State es rel. 13arbarger c Cm'aho,'a Ch'. 13d. ofElections. 75 Ohio St. 3,1 44, ffl N.f;.?tl GBJ (-1996).

Titne for removal from ballotAn acfion seelting to hnre a jodfciul emtdidate remoced

froin the ballot based on noucrnnpfimnce cvith IiC: C 3J01.01was not timelv filetl porsutmt to tiC §§ 35111,39 and 3.51.3.0.5.\Vhitmau 1-. tlwniltoo (;h-. l3d of Elections, 97 Ohio St. .3d218, 300^ Ohio-5cJ3:3, S78 N13.9d 33 (2003).

Write-in candidate

Whem there are no name.s printed nn the h:dlot for tmoffitr at a f>iinwrv clecfion, u wiite-in candidnte recrivint; theinost votes frnthnt of4ice who receives more ^"'tes'tLun wuiJd6ir--e been rcqiured to iwvr Itis oame Ininterl on the prinran6allnl' pnrsnaot to RC: § 35113.05 is entitled to hncr hi.s numefllaeed on the ballot at tlhc- ncnerul clactiun: SGtlc es nd.Nfelnh're c. Mininoi; :33 ULiu St. 2d 17, 61 Uhio Op. 3d 155.39.4 N.li3cl 91 G (1973).

[§ 3513.05.1] § 3513.051 Connrycentral cnnunittec may determine that candidale.sfor committec need nof file petiHon.

(A) Tltt- cumtt\vcntrol cowuiittoc o( u ltuliticalhurts' io it p;trlicnlot cunuhniav tlcteroiine, uot Ialer

t61m uuw Innidn-d hvtvhdacs prior tu Ilir ucct priunmeltrtiou ot whicL c:mdiduten linmwiubor oltllr cunntv

codrul conmiittcv are t-Icctcd, Ihet oac6 Iteixou dl°sir-in,t; to becomt- a c:uulid:dr Gn-eloctiuu :w a on^mber ol

Llie coimh ceutial cotinnittrv of tlint Ir,uic ill tlud

cvmuhslcdl lilt• u dcclar:IBon uf c:nulidner a,a roqtirrclllc s'cctiou 351:3.05 of lho Rewtctl Cutlr Imt is nut

rryimed to flle u prtition as rvynntd 6xdl.rt sectioi. If

tlto comlh' cvuhul couoiittee of u politic.tl p.irh' xndeterniiues, cuch pers'un desiring to hecvmio n c-:mdi-

dute for elec6rnl as e metnbwr ol dtc connta ccutrnl

canniittee of th;tt pctrtriu tlmt cunnhis rnut retlnirrtlto file a petition as retliiired bi thut section bnt .shidl

comply with nll otLe- applicuhle retprirenetts of tlult,sect9on-

(B) If the couuh' ccntrxl comniittce of a politic:Jpurh- ill a pen-ticnl:trcomlh6us deten i iined pneen.nit tndivi.sinn (A) of this section thut each per,sou clo.siting tobecome a enntlidate for electiou ac u mrmber olt)ieuonntccentral coimuittec of th;tt pmtc in thnt conntv isnot reqnned to Rle a petition ty.s reynirecl bc section'351:3.05 of tltc Hecised Codc, t6e cumlhcentrnlconunittee of thut political parhin that colmhrnavsnbseynvntlv detennine that eucL petson dexiriuj; tobec•onte ct cundidute for election us- a niember ol' theconnhcentiul connnittce of that p:uiv in thut connbslydl lile thut petition. Tlte conutvi central cnnmlitteeshall tnalce that cletermin:dion not luter tlmn onehnndred hventv days plior to tlle nrrt prim,unelectionat whic•h c•undidates for mendber of the connto centralcomwittee ure elec•ted. Aftertlle committre nrukestlmtdetermina6on, etuh person desilin^ to hecnnlc' ^a cnn-clidate for election ns a member of the cunntvi centralconunittee of tLat Inutc in that comtth' .shall file thepetil3on retlnircd hr section :3513.05 oltlle RecisedCode mxl shall meet all other applicul>le reqnirementsof, that section.

HISTORy: 14R v H 157. Eff 9-20-99.

Cross-References to Related Sections

Membei:e6ip af eontrollln, cnmmittec.s- li(: )C :3515.0:3.

[§ 3513.05.2] § 3513.052 rrobi-bitions concerning seeking tnore than one officeor position at sarne election.

(A) No person sholl scelc nonlinatiou or clection tomw of the follos\drng of}ices or po.sitions at tlie scunrclec8on bv filing u decluratiun of cnndicLuN mtd peti-tion, u declnrutinn of intent to he a write-iu cwtdiclutc,nr n 11omina6ng pstition, or hsbecolnint, u candiclutc•thron};h p.uhnoininotion in ,t primm'v elcction- or bcthe filling of aa sucancptnnder ,strtion :351:3311 or3513.31 olthc Revised Codv:

(1) Tvo mmurc .shttc ufice.s:(2) 7lvo or morr crountv ollicY-s:

rutyates

ticallaternaryuntyesir-^r ofthatirednot

n. Ify sondi-tral

ired;hallthat

ticalt tog tothe

ty istionrtralmayy tothe

intytteeonetionctr-althatan-itralthesed

snts

r to

me

eti-

ite,

ate

by

or

PRIMARIES; NOMINATIONS § 3513.05.2

(3) A state office and a connty office;(4) A federal office and a state or county office;

(5) Any combination of two or more municipal ortownship offices, positions as a meinber of a city, local,or exempted village board of education, or positions asa mernber of a governing board of mi educationalservice center-

(B) The secretary of state oi- a board of efectionsshall not accept for filing a declaration of candidacy andpetifion, a declaration of intent to be a write-in candi-date, or a nominating petition of a persou seeking tobeconie a candidate if that person, for the sameeleetion, lras already filed a deelaration of eancllchrcy, adeclaration of intent to be a write-ui candidate, or anorninatlng petition, or lias beconre a candidatethrough party nomination ut ai primary election or bythe filling of a vacancy under section 351.3.30 or3513.31 of the Revised Code for:

(1) Anv federal, state, or cronnty office, if the decta-ration of candidacy, declaration of intent to be awrite-in candidate, or nominaturg petition is for pt stateor countv officc;

nomination is a federal office, tlre secretary of stateshall deterrnine the date on which the person firstsought to become a candidate for each of those officesby filing a declaration of candidacy or a declaration ofintent to be a write-in candidate or by the filling of avacancy under section 351:3.311 of the Revised Cocle.Ttie secretary of state shaill order the board of electionsof each cowrty in wliich the person is seeking to appearon the ballot to disqualify that person as a candidate foreach office for which the person sought to become acandidate after the date on wlrich the person firstsought to becoine a cmrdidate for any of those offices.If the secretary of state determines that the personsought to become a candidate for more than one ofthose offices on the same date, the secretary of statesliall order the board of elections of eacli county inwhich the person is seeking to appear on the ballot todisqnalify thatperson as a candidate for eacli office thatwould be listed on the ballot below the highest officefor which that person seeks nomination, according tothe ballot order pi-escribed mider section 3505.03 ofttie Revised Code. Each board of elections so notified

(2) Any municipal or township office, or for member , shall vote promptly to disqualify ttie person as aof a city, local, or exempted village board of education,or for member of a g_overning board of an educaflonalservice center, if the declaratfon of candidacy, dechva-tfon of intent to be a write-in candidate, or nominatingpetition is for a municipal or toumship office, or formember of a city, local, or exempted village boai-d ofeducation- or for member of a governing board of aneducational service center.

(C)(1) If the secretaiy of state detei-mines, beforethe davofthe primary election, that a person is seekingnomination to more than one office at that election inviolation of division (A) of this section, the secretary ofstate shall do on.e of the following:

(a) If each office or the clistiict for each office forwhich the person is seeking noinination is wholly withina single ewnnty ancl none of those offices is a federaloffice, the secretary of state shall notify the board ofelections of that conntv. The board then shall deter-mine the date on wbich the person first songht tobecome a candidate for each of those offices by filing adeclaration of candidacy or a declaration ofintenttobea write-in candidate or by the fllling of a vacancy underseetion 351:330 of the Reviscd Code. The board shallvote promptly to disqualify that person as a candidatefor each offic•e for which thc person sought to be.comea candidate after the clate on wliich the peison firstsought to become a candidate for anv of those offices.If the board determines that the person songhtrtobecome a candidate for more than one of those offiees'on the same clate, the board shall vote prnmptly todisqualify that person as a candidate for each office thatwould bc listed on the ballot below the lrighest officefor whieh that person seeks nomination, according tothe ballot orcler presc•iibed mrder secBon 3505.03 of

candidate in accordance with the order of tlie secretaryof state.

(e) If each office or the district for each office forwhich the person is seeking nomination is wholly withina single connty and any of those offices is a Federaloffice, the secretmy of state sheill notify the boardofelections of that county. The board dier shall voteprmnptly to disqualify that person as a candidate foreach office that is not a federal office.

(d) If one or more of the offices for which theperson is seel.ing nomination is a state office and any ofthe offices for which the pei-son is seeking nominationis a federal office, the secretruy of state shal.l order theboard of elections of eaclr conntv in which the personis seeking to appear on tbe ballot to disqnalify thatperson as a candidate for each office that is not afederal office. Each hoard of electlons so notified sha.llvote promptly to disqualify the person as a candidate inaccordaiice with the order of the secretaiv of state.

(2) If a board of elections determines, before the-day of the primary election,tlrat a personis see-ldngnomination to more than one office at that election inviolation of division (A) of this seetion, the board shalldo one of the following:

(a) If each of}ice or the district for each office forwliicli the person is seeking nomination is wholly withinthat county and none of those offices is a federal office,the board shall clortermine the date on which the personfii-st sought to become a canclidate for- each of thoseof8ces by filing a declaration of candidacy or a decla-ration of intent to be a write-in candidate or by thefilling of a vacancv nnder section 3513:30 of theRevised Code. The board .shall vote prornptly to dis-cpxalify that person as a candidate for eaclr offlce for

9ie Revised Code. wliic•h the person songlrt to hec:orne a candidateaftcr(b) If one or more of the oFfices for which the the date on wbich the person first .songht to become a

person is seeking nomination is a.state office or .m candidate for any of tlrose offices. If the board deter-office with a district larger than a single connty and ininesthattlrepei-son.songhttobecomeac•andidatefornone o4 the offices for wliich the person is seeking iriore than one of those offices on the smne date, the

§ 3513.05.2 ELECTIONS

board shall vote promptly to clisqualifv that person as acandidate for each o$ice that would be listed on theballot below the highest office for wltich that personseeks nomination, accorcling to tlre ballot order pre-scribed nnder seceon 3505.03 of the Revised Code.

(b) If one or inore of the offices for which thepeison is seeking noinination is a state office or anoflice with a district larger than a single county andnone of the offices for which the person is seekjngnomination is a federal office, the board sliall notifv thesecretary of state. TSe secretary of state then shalldetermine the date on which the person first sought tobecome a candidate for each of those offices by filing adeclaration of candidacy or a declaratlon of intent to bea write-in caudidate or by the filluig of a vacancy undersection 3513.30 of the Revised Code. The secretary ofstate shall order the board of elections of each countyin which the pei-son is seeldng to appear on the ballotto disqualify that person as a candidate for eacli officefor which the person songht to become a candidateaRer the date on which tbe person first sought tobecome a candidate for any of those offices. If thesecretary of state deternrines that the person sought tobecome a candidate for more than one of'those officeson the saine date, the secretary of'state shall order theboard of elections of each county in which the personis seeking to appear on the ballot to disqnalify thatperson as a ca.ndidate for each office that would belisted on the ballot below the highest office for whichthat person seeks nomination, according to the ballotorder prescribed under section 3505.03 of the RevisedCode. Each board of elections so notified shall votepromptly to disqualify the person as a eandidate inaccordance with the order of the secretary of state.

(c) If eacli office or the district for each office forwhich the person is seeking nomination is wholly withina single county and any of those offices is a federaloffice, the board shall vote pnmply to disqualiFy thatperson as a candidate for each office that is not afederal office.

(d) If one or more of the offices for which theperson is seeking nomination is a state office and any ofthe offices for which the person is seeking nominationis a federal office, the board shall notify the secretary ofstate. The secretaiy of state then shsill order the boardof elections of each cormty in which the person isseeking to appear on tbe ballot to disqualify that persouas a candidate for each office that is not a federal office.Each board of elections so no[ified shall vote proinptlyto disqualify the person as a candidate in accmdancewitb the order of the secretary of state.

(D)(I) If the secretary of state detei-mines, aftertheday of the primaiy election and before the dav of thegeneral election, that a person is seeldng election tomore tlitui one office at that e-lection in violation ofdivision (A) of this section, the secretary of state slralldo one of the following:

(a) If each office or the district for eacli office forwlrich the person is seeldng eleciion is whollv within asingle county and none of those offieesis a federaloffice, the seeretruy of state shall notify the board ofelections of that counry. The board then shall deter-

136

mine the of'fices for whicli the persori seeks to appearas a canclidate on the ballot. The board shall votepromptly to disqualify that persou its a candidate foreacli office that woiild be listed on the ballot belowthehighest oflice for which that person seeks election,according to the ballot order presei9bed muler sectlon3505.03 of the Revised Cocle_ If the person songhtnominafion at a primvy election and has not yet beenissued a certificate of nomination, the bom-d shall notissue that certificate for that person for any office thatwould be listed on the ballot below the higliest officefor which that person seeks elec5on, according to theballot order prescribed rmder section 3505.03 of theRevised Code.

(b) If one or more of the offices for which thepcrson is seeking election is a state office or an officewith a district latgeithan a single coanty and none ofthe offices for which the person is seeldng election is afederal office, the secretary of state shall promptlyinvestigate and cletermine the offfices for whicb theperson seeks to appear as a candidate on the ballot. Thesec•retary of state shall order the board of efections ofeach eounty in which the person is seeldng to appear onthe ballot to cllsqualify that person as a candidate foreach office that would be listed on the ballot below thehighest office for which that person seeks election,according to the ballot order prescfibed under sec-tion3505.03 of the Revised Code. Each board of electionsso notified shall vote promptly to disqualify the personas a candidate in accordance with the order of thesecretary of state. If the person souglit noinination at aprimary election and has not yet been issued a certifi-cate of nomination, the board sliall not issue thatceitifrcate for that person for any office that would belisted on the ballot below the highest office for whichthat person seeks elecflon, accorefing to the ballot orderprescribed under section 3505.03 of the Revised Code.

(c) If each office or the district for each office forwhicli the person is seeking election is wholly within asingle county ruad anv of those off'ices is a federal office,the secretaiy of state shall notify the board of electionsof that eounty. The board then shall vote proinptly todisqualif}y that person as a candidate for each office thatis not a federal office. If the person souaht nominationat a primmy election and has not yet^^been issued acertificate of nomination, the board shall not issne thatcertificate for that person for any office that is not afederal office.

(d) If one or more of the offices for whielr theperson is seeking election is a state office and any of theoffices for whic•h the person is seeking election is afederal office, the secretay of state shall order theboard of elections of each countv in which the personis seeking to appear on the ballot to disqualify thatperson as a candidate for each office that is not afederal office. Each board of elections so no6fied shallvote promptly to disqualify the person as a candidate inaccordance witb the order of the sea-etaiv of state. Ifthe person sougbt nomination at a primarv electior andlias not yet been issuerl a ce-Eific•ate ofliomination, thoboard shall not issue that certificate for that person forany office that is not a federal office.

A-41

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137 PRIMARIES; NOMINATIONS§ 3513.05.2

(2) If a board of elections detennines after the day to appear on the ballot to disqualify that person as aof the primary election and before th,e day of the candidate for each office that is not a federal office.general election, that a person is seeldng election to Each board of elections so notified shall vote p-omptlymore than one office at that electiou in violation of to disqnalify the persoii as a cmdidate in accordance

division (A) of this section, the board of elections shall witlis iot yetnomanationtat a p imary election and has r persondo one of the following:(a) If each office or the district for each office for been issued a certificate of irornination, the board shawhich the person is seeking election is wholly within not issue that cer8ficate for that person for any office

that county and none of tlrose offices is a federal office, that is rhen a dererson is disqualified as a ezuididateh the (E) phif ,eor wthe board shall deternvne the offices

person seeks to appear as a candidate on the ballot. The under division (C) or (D) of this section, that person sballotsslic>11 vote proinptly to disqualify that person as a naine shall not appear on the allots for any office for

candidate for each office that would be listed on the which that person has been disqualified as a candidate.ballot below the highest office for which that peison If the ballots have already been prepai-ed, the board ofseeks election, according to the ballot order prescribed elections shall reinove the name of the disqualifiednnder section 3505.03 of the Revised Code. If the candidate Froin the ballots to the extent practicable inperson sought nomination at a primary election and has the time remaining before the election and accordingnot yet been issued a certificate of nomination, the to the directions of the secretary of state. If the nameboard slrall not issue that certifrcate foi- that person for is not rernoved from the ballots before the dav of theany office that would be listedon the badlot below the electloii; the votes for the disqualified candidate arehighest office for which that person seeks election, void and shall not be counted.according to the ballot order prescribed nnder section '(F) Any vacancy created by the disqualification of a:3505.03 of the Revised Code. person as a candidate under division (C) or (D) of this

(b) If one or inore of the offices for wliich the section may be filled in the manner provided for inperson is seeldng election is a state office or an office sections 3513.30 and'351.3.31 of the Revised Code.xvith a district larger than a single cowity and none of (C) Nothing in this section or section 3513.04,the offices for which the person is seeking election is a 351:3.041 [3513.04.1], 3513.0.5, 3513.251 [3513.25.1],federal office, the board shall notify the secretary of 3513.253 [3513.25.3], 3513.254 [3513.27.4], 3513.2.55state. The secretary of state promptly sliall investigate [351325 .5], 3513.257 [3513 25.7], 3513.250

261 [3.513.26.1] of tlle Revisedes for which the person seeks to or 3513ffi 25 9]3513h .[c . ,e o .and determine tappear as a candidate on the ballot The secretary of Code prohibits, and the secretary of state or a board ofstate shall order the board of elections of each county electimrs shall not di.squalify, a person from being ain which the person is seeking to appear on the ballot candidate for an office, if thaY person timely withdrawsto disqualify that pei-son as a candidate-for each office ,^ a candidate for any offices specified in division (A) ofthat would be listed on the ballot below the bighest tlris section for which that person first songht tooffice for whichthat person seeks election, according to become a candidate by filing a declaration of candidacythe ballot order prescribed under section 3505.03 of and petition, a declaration of intent to be a write-inthe Revised Code. Eaclr Uoard of elections so notified candidate, or a nominating petition, by party nominashall vote promptly to c7isqualif}f the person as a tion in a primary election, or by the filling of' a vacancycandidate in accordance witlr the order of the secretary under section 3513.30 or 3513.37. of the Revised Code.of state. If the person sought nomination at a primary (H) As used in this section:election and has notget been issued a cer6ficate of (1) °State office"-means the offices pf-governor,nomination, the board shall not issne that certiffcate for lieutenant governor, secretary of state, auditor of state,that person for any office that would be listed on the treasurer of state, attorney general, member- of theballot below the higllest office for which that person state board of education, member of the generalseeks election, acc•ording to the ballot order prescribeded Code. asseinbly, elrief justice of the supreme court, andunder section 3505.03 of the Revis

Jr' ()e°(Timely ^withdraw.s'^^me.ms either of the follow-is seeking i election is wholly

officewithin

whkh the a officethat county and any of those offices is 2 federal offlco, F ing: Withdrawin candidate before the applicu-the board shall vote promptly to disqualify that person (a) g as

^ a i

asacmndidateforeachofficethatisnotafederaloffice. ble deadline [or filingc declaration of candidacy,If the person sought nomination at a primary election declaration of intent to bc a write-in candrdate, orand has oot yet been issued a certificate of ttomination, nominating pefition for the si,ibsequent office for wbichthe board slrall not issue that ce8ficate for that person the person is seeking to become a candidate at thc

for any office that is not a federal office. Same election;(d) If one or morc of the offices for which the (b) Witlrelrawing as a candidate before the appltca-

person is seeldng election is a state office and any of the ble deadline for the 611ina of a vaamcy nnder sectionoffices for which the person is seeking eleclion is a 3513.3(1 or 351.3.31 of the Revised Code, if the personfederal office, the board shall notify the secretary of is seeking to become a candidate for a subsequent

state. The secretary of stateshall order the board of office at the same election nnder eitlier of those

elections of each county in which the person is seeknig sections.

§ 3513.06 ELECTIONS ]38

t118TORY:14) 11445.E1i12232002;150 vH262,§ 1,uff- tliat snchIxeNinns c•lcotion was unc at wliic'h his

7-04; 151 v li 66, (S 101.01,tll J 2905. c:mdidacr conyilied with tLis sectinu.

Phe rffrctictr Ate is yol b,^ 1612.03 ol1.51 v I I 66 11I5'1'Olil': GC § 47N5-70a; 1 Iri v 81; 120 r 190; 13A v 673;'RUrcau of CodcRevic-iun, 10-1-53; 73fi v 11946 (Rf(R t-8(1); 196

Effeet of amnndrnents Y H 99, GI7N-22-95.

151 r 1166 _ elh ctnt^ .Septewhc i 29, 2(I(15msrrted (A)(4) and Cross-RePerencen tu Related Sccfionsutlcyinnwhd Innac-r (A)Il) i (5); imciltd Irderv.d in

(13)(1 ) and a ide rc, l:dod ch ug-c; in (C)(I)l 0 ead (2)h nnil (:andid Icv, Iletition llobtfiuu nf urt.iiu iryniicmcuts rasult-(D)(1)(;) aud(9)(u),nlst•rtcdmideout lf16us^^ufiicvsisa ni inrejoeti( .nlcvrrcnmnlxt-LLCOrLu,udufrlee4ioaeIctlci:d olTc -; iu 1(:)(I)(1)) :wtl (211IA .wd b)(I)(61 cmd h(' § 3501:39I2i(b) . iunv-rtcd wid aunr of [he olhers fur "diich die Decla dious of emiditluce: crrtiiiadiue of Lullut funux, RC

lx,ison is sc, lu ny nonlinutwn iv ulydcilJ ofiia`; and udclcd 51 .(L5.IiNucl of cI1Tn "-t of omuo un statc-ment of vwiditlac.v. IiC1( 1(1)(cl and Id), (?)(e) md (cl). (D)(I c) uncl ldl. :w<I § .351:335.1

(2tc) :md (f. Furnirr wmies to I c pnutcd uu L.illut, R(: )C 1351A5()2_150 1' I I2(i2. U.u' 7, 30II-1, drlrtrd (C), relttting tn eaodicl.tcc Ntdiunel eunvcntion dele-avs, I(C ^ i.513.12.

for vueant uf}ice, enld redcaifawted tho rrmaininFnv6xec_tions .Iccordinf+lv.

CASE NOTES AND OAG

Genernlh'

Ohio Constitutiun

Nanies of cwididutos un b.dlut_ OConst art V. 1 2;t

Research Aids

(:hange of c.wdidate's nwuc.'fLe secretar, of shlte ha.s the anthunhtn find invalid adedm'ation of c.wdidaec iilr nomimctien to the offliee ofgovernor Illed ls u persoo mho hac presiou.slc filed, mld notwithdruscu, a declnratloe ol eantlidacv for noniination to the `oflice nilJnited States represenCltive nt the stane Uriinmnelec-tlon (1J48 OAG No_ 2923. p. 129 nud 1993 OAG No.9:3-05?, upproced'an(i fullowed): OAG No.2(102-010 (2002).

§ 3513.06 Effect of chanp,e of name ondeclarxtion of candidacv.

If unv per.sou desiring to bea» nr a candidate filrpnblic office has llad a change of nwne wdthin five vecusinnnediatelvprecedinK tlte filing of tlle person:s decla-ration of caudidacv, the persons declartttion of cancli-dacv and pe66on shall both contain, immecliatelcfolloHnng the person's present n,nne, the person's fo)-mer mmrles. Anv pel-sorn vvho has been elccted nnderthe person'e c•llanged name, withont submission of theperson's fonner name, sh,tll be immediatelv'snspendedfrom the office atld theoffice dec•lareda.uated. aiids)lall be liable to the state for anc salmz-he has receivedwhile holclirlg snch office. The rJttorney general ill thecase of candidates for state offiees, the prosec3ltingattorniev of tlle most populons comltv in adi.strict in thecase of candidates for district ofTices, and the prosec•nt-ing attornec oftlle colultv in tLe case of :dl othercelnclidutes shtdl institnte neces,san, action to enfnrc•ethis section.

This sec8on does not applV- to a c•lum^e of name bvreason of maniage_ to a randidate for a statc ofBce Nvholras onc•e conipllecl with this seclion end who ha.sprevionslr lleen elec•ted to a.state office: to It candidatefor n district office sti'ho has once colnplied witll thissec•6on tmcI who h.u previc» lsh lreen elected to a stateo)- (listrict oflic•e; to a c•anclidate for u connh° oPlice whohas onc•e complied with this sectiou and Ir,t.s prevlou,slvbeen elected to a state, district. or cronnh- office; to acancl(date fm.r municipal office udJCl Il ws once con) (oliedknth tllis srction and llas previou.sls° been elec•ted to amnuiopal office: or to a cundidate for a township oYllcew6o has once complied tidth thi.s section :md Imsprevioush, been elected to a townl.ship ofAce; prrn'ided

O-Jur3d: Hlrct § 7^SAm-Jur2d: Elect 1 301)

CASE NOTES AND OAG

INDEX

(L^nrmllrAitliorih-odhi,urclidilydion"Uw ^,f umiJh^n mune

GenerallyA ean(Ildate is nnt neeessarik dlsqvalified under HG

)3.513.0G bv Ilix nse of hvo dilferent nanlrs, bnt here thec•emcVdate:s otmi statement contnldict's his pres'eat positlon:State rc rel. Kierrison , 13oard ofN:leatiuns. 63 Ohiu St. 2d33G. 17 Ohio Op. :3d 3r11.410 N E2d 764 (19R(1).

\4'huc .1 person. m the siGning ol c declm:ction uf candidacvand pe•titiou for nominatton to a pablic office- used a namewhich he ha(I adopted cmd ln which hr Ilud hvu•n hreneinikl.iloe,n in thc camminihin which lle resiclyd tur imanvi cearsLoth before und ;iRer the enuctnlent ofthis' section end GC:§4,-85-H(Ia (HC §3.513.2H), mui iilr morc thao ten cearshefbre the filhii;ofsnch dedm ^tian of enn<fitlacv andprtitou,the fact that doring the saine period of time he v.ced anothetnanle Dn certdn ocea.sion.s' dues not mcdce such sigrnin); nchange of name critldn the Inuriesv and meanin2 ol.sachsectirnls: Pierce v t3rushmY- 1.5:3 Ohfo St. :3521. 41 Ohio Op.39S 92 N.1;_2d 4 (1950).

V'hc're a peiton whose iclentihis not pie.stioned and ^rhois conlnlonk 6iloscm as `Flunlc H. Kcarndsign nn accepttmceof candidacr felr the office of colmcilmun of the citv ofC:olnnibils us'Franl: Il. I(ew'n.s_- the nmuinaBinfr 1>etttion ofsuch persnn, if rcgidar in all other lrspccts, is rJid, enonthonKh sudl 1>erson i.c rc,>;istererl in the ualne of -F'ranci.s Il.Kearns.- TLis is so ecc n tiluul;h tlte mmue whic'L is to :qllu:non thc b:dlot ln tbe ensning Iniinan'rlection sllanlctbe-FranlcH. Kearns": 1941 UAG No.><IN_fi(19-11).

Autlrolity of board of electionsBowd of rlectiuns did nol adn'r its discrctiun ur vlearlr

disrck utl appliealnlc• I.w hc,stnkin(, l uwdid,tttCs ebamed aewnnddlc namefi-lml thc h,tlloC.Stutc cr ref. NWillel c. ('nv^IholrnCh. 13d. of Elections. 1(1:3 Ohio St. .3d 477, SIT N.li.2d 1(3(IIIJ). ^

A board ofelec6ons <lut•.s uot;dm,se its discrctiun in relLsinl,to Frint u cmdidutes nwne di(ferentlvthan it uhpemx on vuter

3513.05 PAGE'S OHIO REVISED CODE ANNOTATED

the United States shall also file witll the secretary ofstate by that sixty-second day a slate of presidentialelectors sufficient in number to satisfy the require-ments of the United States constitution.

A board of elections shall not accept for filing thedeclaration of intent to be a write-in candidate of aperson seeking to become a candidate if that.person,for the saine election, has already filed a declaration ofcandidacy, a declaration of intent to be a write-incandidate, or a nominating petition, or has become acandidate througli party nomination at a primary elec-tion or by the filllng of a vacancy under section 3513.30or 3513.31 of the Revised Code, for any federal, state,or county office, if the declaration of intent to be awrite-in candidate is for a state or county office, or forany municipal or township office, for metnber of a city,local,or exempted village board of education, or formember of a governing board of an educational servicecenter, if the declaration of intent to be a write-incandidate is for a municipal or township office, or formember of a city, local, or exempted village board ofeducation, or for member of agoverning board of aneducational service center.

No person shall file a declaration of intent to be awrite-in candidate for the office of governor unless thedeclaration also shows the intent of another person tobe a write-in candidate for the office of lieutenantgovemor. No person slrall file a declaration of intent tobe a write-incandidate for the office of lieutenantgovernor unless the declaration also shows tlre intent ofanother person to be awrite-in candidate for the office

- of goverrror. No person shall file a declaration of intentto be a write-in candidate for the office of govemor orlieutenant governor if the person has previously filed adeclaration of intent to be a write-in candidate to theoffice of governor or lieutenant governor at the samepriinary or general election. A write-in vote for the twocarididates wlro file such a declaraHonshall be countedas a vote for them as joint candidates for the offices ofgovernor and lieutenant governor.

The secretary of state shall not accept for filing thedeclaration of intent to be a write-in candidate of aperson for the office of govemorunless the declarationalso shows the intent of another person to be a write-incandidate for the office of lieutenant govenror, shall notaccept for fil'nig the declaration of intent to be awrite-in candidate of a person for theoffrce of lieuten-ant governor unless the declaration also shows theintenYof another person to be a write-in candidate forthe office of govemor, and shallnot accept for filing thedeclaration of intent to be a write-in candidate of aperson to the office of governor or lieutenant governorif that person, for the same election, hasalready filed adeclaration of candidacy, a declaration of intent to be awrite-in candidate, or a nominating petition, or hasbecome a candidate througli party nomination at aprimary election or by the frlling of a vacancy undersection 3513.30 or 3513.31. of the Revised Code, forany other state office or any federai or county offrce.

Protests against the candidacy of any person filing adeclaration of iintent. to be a write-in candidate may befiled by any qualified elector who is eligible to vote in

the election at which the candidacy is to be considered.The protest shall be in writing and shall be filed notlater than four p.m. of the fifty-seventh day before theday of the election. The protest shall be filed with theboard of elections with which the declaration of intentto be a write-in candidate was filed. Upon the filing ofthe protest, the board with wlvch it is filed shallpromptly fix the tiine for hearing it and shall proceed inregard to the Irearing in the same manner as forhearings set for protests filed under section 3513.0.5ofthe Revised Code. At the time fixed, the board shallhear the protest and determine the validity or invalidityof the declaration of intent to be a write-in candidate.if the board finds that the candidate is not an elector ofthe state, district, county, or political subdivision inwhich the candidate seeks election to office or has notfully complied with the requirements of Title XXXV[35] of the Revised Code in regard to the candidate'scandidacy, the candidate's declaration of intent to be awrite-in candidate shall be deterinined to be invalidand shall berejected; other,tvise, it sliall be determinedto be valid. The determination ofthe board is frnal.

The secretary of state shall prescribe the form of thedeclaration of intent to be a write-in candidate.

HISTOSY: 133 v S 17 (Eff 10-30-69); 136 vH 1164 (E££7-21-76); 137 v S 115 (Eff 3-10-78); 146,r1199 (Eff 8-22-95); 149v H 445. Eff 12-23-2002; 151 v H66, § 101.01, eff. 9-29-05; 151v H 3, § 1, eff. 5-2-06.

Effectof amendments151 v H 3, effective May 2, 2006, in the first paragraph,

substituted "sixty-second" for °£dtieth" three times; in the -fifth paragraph, substituted "fifty-seventh" for "forty-fifth";and confirmed the amendment by 151 v H 66.

§ 3513.05 Filing of declaration of candi-dacy and petition; protests; certification of ballotforms. . . .

IEach person desiring to become a candidate for aparty nomination or for election to an office or positionto be voted for at a primary election, except personsdesiring to become joint candidates for the offices ofgovernor and lleutenant govemor and except as other-wise provided in section3513.051 [3513.05.1] of theRevised Code, shall, not lafer than four p.m. of theseventy-fifth day before the day of the primary elec-tion, or if the primary election is a presidential primaryelection, not later than four .p.m.of the sixtieth davbefore the day of the presidential primary election, filea declaration of candidacy and petition and pay the feesrequired under divisions (A) and (B) of section 3513.10of the Revised Code. The declaration of candidacy andall separate petition papersshall be filed at the sametime as one instmrnent. When the offices are to bevoted for at a primary election, persons desiring tobecome joint candidates for the offices of govagnor andlieutenant govemor shall, not later than fourlp.m. ofthe seventy-fi(th day before the day of the primaryelection, comply with section 3513.04 of the RevisedCode. The prospective joint candidates' declaration ofcandidacy and all separate petition papers of candida-cies shall be filed at the same time as one instmment. m

77 2010 SUPPLEMENT

The secretaryof state or a board of elections shall notaccept for filing a deelaration. of candidacy and petitionof a person seeldng to become a candidate if thatperson, for the same election, has already filed a-declaration of candidacy rrka deelaration of intent to bea write-in candidate, or has become a candidate by thefillingof a vacancy under, section 3513.30 of theRevised Code for anyfederal, state, or county office, ifthe declaration of candidacy is for a state or countyoffice, or forany municipal or township office, if thedeclaration of candidacy is for a municipal or townshipoffice. . . .

If the declaration of candidacy declares a candidacywhichis to be submitted to electors throughout theentire state, the petition, including a petition for jointcandidates for the offices of govesnor and lieutenant,governor, shall be signed by at least one thousandqualified electors who are members of the same polit-icalparty as the candidate or joint candidates, and thedeclaration of candidacy and petition shail be filed witlithe secretary of -state; provided that the secretary ofstate shall not accept or file any such petition appearingon its face to contain signatures of more than threethousand electors.

Except as otherwise provided in this paragraph, ifthe declaration of candidacy isnf one that is to besubnutted only to electors within a district, politicalsubdivision, or porflon thereof, the petition shall besigned by not less than fifty qualified electors who aremembers of the same political party as the politicalparty of which the candi,date is a member. If thedeclaration of candidacy is for party nomination as acandidate for member of the legislative authority of amunicipal corporation elected by ward, the petitionshall be signed by not less than twenty-five qualifiedelectors who are members of the political party ofwhich the candidate is a member.

No such petition, except the petition for a candidacythat is to be submitted to electors throughout the entirestate, shall be accepted for filing if it appears to containon its face signatures of more than three times theminimum number of signatures.When a petition of acandidate has been accepted for filing by a board ofelections, the petition shall not be deemed invalid if,upon verification of signatures contained in the peti-tion, the board of elections finds the numbet ofsignatures accepted exceedsthree times the minimumnumber of signatures required.'A board of electiongmay discontinue verifying signatures on petitions whenthe number of verified signatures equals the minimumrequired number of qualified signatures.

If the declaration of candidacy declares a candidacyfor party nomination or for election as a candidate of anintermediate or minor party, the minimum number ofsignatures on such petition is one-half the minimumnumber provided in this section, except that, when thecandidacy is one for election as a member of the statecentral committee or the county central committee of apolitical party, the minimum number shall be the samefor an intermediate or minor party as for a major party.

If a declaration of candidacy is one for election as amember of the state central committee or the county

§ 3513.05

central committee of a political party; the petition shallbe signed by five qualified electors of the district,county, ward, township, or precinct within which elec-tors may vote for such candidate. The electors signingsuch petition shaIl be menibers of the same politicalparty as the political party of which the candidate is amember.

For purposes of signing or circulating a petition ofcandidacy for party nomination or election, an electoris considered to be a member of a political party if theelector voted in that party's primary.etection within thepreceding two calendar years, or if the elector did notvote in any other party's primary election within theprecedingtwocalendaryears.

If the declarationof candidacy is of one that is to besubmitted only to electorswitlun a count}; or-within adistrict or subdivision orpart thereof smaller than acounty, the petition shall be filedwithtlie board ofelections of the county. If the declaration of candidacyis of one that is to be submitted only to electors of adistrict or subdivision or part thereof that is situated inmore than one county, the petition shall be filedwiththe board of elections of the county within which themajor portion of the population thereof, as ascertainedby the next preceding federal census, is located.

A petition shaIl consist of separate petition papers;each of which shall contain signatures of electors ofonly one county. Petitions or separate petition paperscontaining signatures of electors of more than onecounty shall not thereby be declared invalid. In casepetitions or separate petition papers containing signa-tures of electors of more than one county are ffied, theboard shall determine the county from which themajority of signatures came, and only signatures fromsuch county shall be bounted. Signatures from anyothercourity shall be invalid.

Each separate petition paper shall be circulated byone person only, who shall be the candidate or a jointcandidate or a member of the same political party astheeandidateor joint candidates,and each separatepetition paper shall be govemed by, the rules set forthin section 3501.38 of the Revised Code. -

The secretary of state shallpromptly trarumit to eachboard such separate petition papers-of each petitionaccompanying a declaration ofcandidacy filed with thesecretary of state as purport to contain signatures ofelectors of the county of such board. The board of themost populous county of a district shall promptlytransmit to each board within such district such sepa-rate petition papers of each petition accompanying adeclaration of candidacy filedwith it as purpoit tocontain signatures of electors of the county of eachsuch board. The board of a county within which themajor portion of the population of a subdivision,situated in more than one county, is located, shallpromptly transmit to the board of each other countywithin which a portion of such subdivision is locatedsuch separate petition papers of each petition accom-panying a declaration of candidacy filed with it aspurport to contain signatures of electors of the.portionof such subdivision in the oounty of each such board.

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§ 3513.05 PAGE'S OHIOREVISED CODE ANNOTATED 78 '

All petition papers so transmitted to a board and aIl filed, heard and determined in the same mann, er as apetitions accompanying declarations of candidacy filed protest against the candidacy of any person filing awith a board shall d l, un er proper regu ations, be open to declaration of candidacy singlypublic inspection until four p.m.of the seventieth day The secretary of state shall, on the sixtieth day beforebefore the day of the next primary election, or if that the day of a piimeuy election, or if the primary electionnext primary election is a presidential primary election, is a presidential primary election, on the forty,fifth daythe fif4y-fifth day before that presidential primary before the day of the presidential primary election,election. Eacb board shall, not laterthan the sixty- certify to each board in the state the forms of theeighth day before the day of that primary election, or if official ballots to be used at the primary election,the prirnary election is a presidential primary election, together with the names of the candidates to be printednot later than the fifty-third day before such presiden- on the ballots whose nomination or election is to betial primary election, examine and determine the valid- 'deterinined by electors tbroughout the entire state andity or invalidity of the signatureson the petition papers v`ho filed valid declarations of candidacy and petitions.so transmitted to or filed with it and shall return to the The board of the most populous county in a districtsecretary of state all petitiori papers transmitted to it by comprised of more than one county but less than all ofthe secretary of state, together with its certlfication of the counties of the state shaIl on the sixtieth day beforeits determination as to the validity or invalidity of the day of a primary election, or if the primary electionsignatures thereon, and shall return to each other is a presidential primary election, on the forty-fftb dayboard all petition papers transmitted to it by such before the day of a presidential primary election,board, together withits certification of its determina- certify to the board of each county in the district thetion as to the validity or invalidity of the signatures names of the candidates to be pnntedon the officialthereon. All other matters affectin the validitor ballots to be used at the primary election; whose

gS' nomininvalidity ation or election is to be detenninedonly byof such petition papers shall be detennined electors within the district and wlio filed valid declara-

by the secretary of state or theboard with whom such tlons of candidacy and petitions.

petition papers were filed. The board of a county within which the majorProtests against the candidacy of any person filing a portion of the population of a subdivision smaller than

declaration of candidacy for party nomination or for the county and situated in more than one county iselection to an office or position, as provided in this located shall, on the sixtieth day before the day of asection, may be filed by any qualified elector who is a primary election, or if the primaiy election is a presi-member of the same political party as the candidate dential primary election, on the forty-fifth day beforeand who is eligible to vote at the primary election for the day of a presidential primary election, certify to thethe. candidate whose declaration of candidacy the board of each county in which a portion of thatelector objects to, or by the controlling committee of subdivision is located the names of the candidates to bethat political party. The protest shall be in writing, and printed on the official ballots to be used at the primaryshall be filed not later than four p.m. of the sixty-fourth election, whose nominatiomor election is to be deter-day before the day of the primary. election, or if the mined only by electors witlun that subdiidsion aiand whoprimary election is a presidential primary election, not filed valid declarations of candidacy and petitions. ,later than four p.m. of the forty-ninth day before the IHSTORY: 134 v S 460 (Eff 3-23-72); 135 v H 662 (Eff 9-27-74);day of the presidential primary elee$on. The protest 137 v S 115 ( Eff 3-10-78); 138 v H 142 (Eff 10-26-79); 138 v Hshall be filed with the election officials with whom the 1062 (Eff 3-23-81); 140 v S 358, §§ 1, 3 (Eff4-3-84); 141 v H 160,Tleolarationof eandid3cy and petition was filed. U bll §§ 1, 3( Eff 7-12-85); 141 v S 45, §§ 1, 3(Eff 5-2-86); 143 v H 36,

p §§1 3(Ell 1-1-90) 143 H 37 ff, ; v $ , § 1(E 7-27-90); 143 v H 237,the filing of the protest, the election officials witll § 3 (Eff 5-31-92); 144 v H 700, § 9(Eff 4-1-92); 145 v S 150 (Effwhom it is filed shall' rom tl fix the time for heariri 12-29-93); 146 v S 9(Eff 8-24-95); 148 v H 157 (Eff 9-20.99);149it, and shall fortltwith m3iPnotice of the fiIInof the v H445. Eff 12-23-2002; 151 v H 66, § 101.01,eff. 9.29-05; 151

g v H 3, § 1, eff. 5-2-06.protest and the time fixed for hearing to the peisonwhose candidacy is so protested. They shall also forth- Effect of amendmentswith lnail notice of the time fixed for such hearing to 151 v H 3, effecttve May 2, 2006, conflrmed the amendmentthe person who filed the protest. At the time fixed, such , by 151 v H 66.election officials shall hear the nrntect and r7PtP,,,,;,,o

Practice Manuals and Treatisesthe validity or invalidity of the declaration of c didan acyand petition. If they find that such candidate is not anAnderson's OMo Civil Practice with Formselector nf the state rl;^ ........... .. ....t:.:,.a ....l.a, aure to Lntorce Election Laws

vision in wluch the candidate seeks a pa^rty nominatiori CASE NOTES AND OAGor election to an office or position, or has not fully . r .,n.

. .... ...... ......1,..,., 1..1 ..a.,.....awa ucwr¢rauwi

of candidacy and petition shall be determined to be Generallylnvalici and sha(1 be reierYed- n+hen,dca ;r eh-11 he rro<estsdeterminerl -Fn ha -1i.7 Th.,^ .7^t ........:....u,._ ..t._n _ ^=^^ucucy requtrement

fmal. ^ . . . . - _A protest against the candidacy of any persons filing G llenera

y a declaratioriof candidacy for joint party nomination to Defecti i ive nom nat ng petition could not be cured bythe offices of governor and lieutenai.it govenior shall be submitting an affidavit at a subsequent time. BC § 3513.0521

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79 2010 SUPPLEMENT

does not prevent the application of RC §§ 3513.261 and (2) Any municipal or township office, or for member3513.05 to bar a second nominating petition for the same of a city, local, or exempted villageboard of education,office at the same election after the first nominatuig petition or for mernber of a governing board of an educationalhas been wled invalid: State ex rel. Canales-Flores v. Lucas service center, if the declaration of candidacy, declara-Cty. Bd. of Elections, 108 Ohio St. 3d 129 (2005).

. tion of intent to be a write-in bandidate, or nominatingProtests petition is for a municipal or township office, or for

Where a potential judgeship can^te failed to meet her member of a city, local, or exempted village board ofburden of showing, that a county oard of elections clearly education,or for member of a governing board of andisregarded the applicable law by deeming a protest to her educational service center.candidacytimelypursuanttoOhioRev.CodeAnn. § 3513.05,

(C)(I) If the secretarybf state determines, beforeshe was not entltledto mandamus relie€ under Ohio Rev. the day the that a kingCode Ann.§ 2731.04, wherein she sought to compel the y of PrimarT election, person is see

board to place her nameon the ballot; the protest arrived by nomination to more than one office at that election inmail to the board prior to the expiration of the filing deadline, violation of division (A) of this section, the secretary ofb t rt d d d h ll d

Pdeclaration of intent to be a write-in candidate, or a sought to become a candidatefor more than one ofnominating petition, or has become a candidate those offices on the same date, the secretary of statethrough party nomination at a primary election or by shall order the board of electionsof each county inthe filling of a vacancy under section 3513.30 or which the person is seeking to appear ontheballot to3513.31 of the Revised Code for: disqualify that person as a candidate foreach office that

(1) Any federal, state, or county office, if the decla- would be listed on the ballot below the highest officeration of candidacy, declaration of. intent to be a for which that person seeks nomination, according towrite-in candidate, or nominating petition is for a state the ballot order prescribed under section 3505.03 ofor county office; the Revised Code. Each board of elections so notified

become a canchdate tf that person, for the same sou,Qht to become a candidate for any of those offices.election, has already filed a declaration of candidacy, a If the secretary of state determines that the erson

gdate, or a nominating petition of a persan seeking to candidate after the date on which the person first 1^¢;

s o e ca coun y m w c t e person is see ng to appearkishall not accept for filing a declaration of candidacy and on the ballot to disqualify that person as a candidate forpetition, a declaration of intent to be a write-in candi` "each office for which the nerson sou ht to become a

i(B) The secretary of state or a board of election f th hih h

.service center. The secretar of state shall order the board of eleciytbns i

townshtp offices, positions as a member of a city, local, by f`iling a declaration of candidacy or a declaration ofor exempted village board of education, or positions as intent to be a write-in candidate or by the filling of aa member of a governing board of an educational vacancy under section 3513.30 of the Revised Code.

(5) Any combination of two or more municipal Por sought to become a candidate for each of those offices ,,

(A) No person shall seek nomination or election to on the same date, the board shall vote promptly toany of the following offices or positions at the same disqualify that person as a candidate for each office thatelection by filing a declaration of candidacy and peti- would be listed on the ballot below the highest officetion, a declaration of intent to be a write-in candidate, for which that person seeks -nomination, according toor a nominating petition, or by becoming a candidate the ballot order prescribed under section 3505.03 of

.. through party nomination in a primary election, or by the Revised Code.the filling of a vacancy under section 3513.30 or (b) If one or more of the officesfor which the3513.31 of the Revised Code: person is seeking nomination is a state office or an-

(1)Two or more state offices; . office with a district larger than a single county and(2) Two or more county offices; none of the offices for which the personis seeking(3) A state office and a county office; nomination is a federal office, the secretary of state(4) A federal office and a state orcounty.o4Tice; shall determine the date on whicli the erson first

become a candidate for more than one of those offices

v c enen, section 3513.30 of the Revised Code. The board shall119 Ohio St. 3d 500, 895 N.E.2d 532, 2008 Ohio 4924, (2008). vote promptly to disqualify that person as a candidate

for each office for:luch the person soughtto become

[§ 3513.05.21 § 3513.052 prolu- a candidate after the date on which the person first

bitions concerning seeldng more than one office sought to become a candidate for any of those offrces.

or position at same election If the board determines that the person sought to

n enand petition, not to candidates who replace an originalnominee who has withdrawn: State ez rel Addis M CI

a write-in candidate or by the £illing of a vacancy under

§.315.02 requirements for county engineer. do not include minethe date on which the person first sought to .county residency. Residency requirement of RC § 3513.05 ,, become a candidate for each of those offices by filing aapplies only to candidates who file a declaration of candidacy declaration of candidac or a declaration of i t t t b

u was not ate-stampe unt .aher the expiration thereof. . state s a o one of the followmgState ex rel. Martinez v. Cuyahoga Cty. Bd. of Elections; 2006 (a) If each office or the district for each office forOhio App. LEXIS 1556, 2006 Ohio 1665, (2006). which the person is seekingnomination is wholly within

Residency requirement , a single county andnone of those officesis a federalRC § 3.15's residency requirement applles only to persons office; the secretary of state shall notify the board of

elected or appointed to office, not to candidates for office..RC. elections of that county. The board then. shall deter-

§ 3513.05.2 PAGE'S OHIO REVISED CODE ANNOTATED

shall vote promptly to disqualify the person as acandidate in accordance with the order of the secretaryof state.

(c) If each office or the district for eaclr office forwhich the person is seeking noinination is wholly withina snigle county and any of those offices is a federaloffice, the secretary of state shall 'notify the board ofelectionsof that county. The board thenshall votepromptly to disqualify that person as a candidate foreach office that is not a federal office.

(d) If one or more of the offices for which the,person is seeking nomination is a state office and any ofthe offices for which the person is seeking nominationis a federal office, the secretary of state shall order theboard of elections of eaclr county in which the person

-isseeking to appear on the ballot to disqualify that"person as a candidate for each office that is not a

federal office. Each board of elections so notified shallvote promptly to disqualify the person as a candidate inaccordance with the order of the secretary of state.

(2) If a board of elections determines, before theday of the primary election, that a person is seeldngnoiniriation to inore than one office at that elecflon inviolation of division (A) of this section, the board shalldo one of the following:

(a) If each office or the district foreacli office forwhiclr the person is seeldng nomination is wholly withinthat county and none of those offices is a federal office,the board shall determine the date on which the personfirst sought to becoinea candidate for each of thoseoffices by filing a declaration of candidacy or a d'ecla-ration of intent to be a write-in candidate or by thefil].ingofa vacancy under section 3513.30 of theRevised Code. The board shall vote promptly to dis-qualify that person as a candidate for each office forwhich the person sought to become a candidate afterthe date on which the person first sought to become acandidate for any of those offices. If the board deter-mines that the person sought to become a candidate formore than one of those offices on the same date, theboard shallvote promptly to disqualify that person as acandidate for eacli office that would be llsted on.theballot below the highest office forwhich that personseeks nomination, according to the ballot order pre-scribed under section 3505.03 of the Revised Code.

(b) If one or more of the offices for which theperson is seekingnoinination is a state office or anoffice with a district larger than a single county andnone of the offices for whichthe person is seekingnoinination is a federal office, the board sball notify thesecretary of state. The secretary of state then shalldetermine the date on whiclr the person first souglit tobecome a candidate for each of those offices by filing adeclaration of candidacy or a declaration of intent to bea write-in candidate or by the filling of a vacancy undersection 3513.30 of the Revised Code. The secretary ofstateshall order the board of elections of each countyin which the petson is seeking to appear on the ballotto disqualify that person as a candidate for each officefor which the person sought to become a candidateafter the date onwhich theperson first sought tobecome a candidate for any of those offrces. If the

secretary of state determines that the person sought tobecome a candidate fdr more than one of thoseofficeson the same date, the secretary of state shall order theboard of elections of each county in which the personis seekirrg to appear on the ballot to disqualify thatperson as a candidate for each office that would belisted on the ballot below the lvghest office for whichthat person seeks nomination, according to the ballotorder prescribed under section 3505.03 of'the RevisedCode. Each board of elections so notified shall votepromptly to disqualify the person as a candidate inaccordance with the order of the secretary of state.

(e) If eacli office orthe district for each office forwhich the person is seeldng nomination is wholly withina single county and any of those offices is a federaloffice, the board shall vote promptly to disqualify thatperson as a candidate for each office that is not afederal office.

(d) If one or inore of the. offices for which theperson is seeking nomination is a state office arid any ofthe offices for which the person is seeking nominationis a federal office, the board shall notify the secretary ofstate. The secretary of state then shall order the boardof elect3ons of each county in which the person isseeking to appear on the ballot to disqualify that personas a candidate for each office that is not a£ederal office.Each board of elections so notified shall vote promptlyto disqualify the person as a candidate in accordancewith the order of the secretary of state.

(D)(1) If the secretary of state determines, after theday of the primary election and before the day of thegeneral election, that a person is seelcing election tomore than one office at that election in violation ofdivision (A) of tlus section, the secretary of state shalldo one of the following:

(a) If each offrce orthe district for eachoffice forwhich the person is seeking election is wholly within asnigle county and none of those offices is a federaloffice, the secretary of state shall notify theboard ofelections of that comity. The board then shall deter-minethe offices for which the person seeks to appearas - a candidate on the ballot. The board shall votepromptly to disqualify that person as a candidate foreach office tlrat would be llsted on the ballot below thehighest office for which that person seeks election,.according to the ballot order prescribed under section3505.03 of the Revised Code. If the person soughtnonrination at a primary election and has not yet beenissued a certificate of nomination, the board shallnotissue that certificate for that person for any office thatwould be llsted on the ballot below the highest officefor which that persop seeks election, according to theballot order prescrilind under seclion 3505.03 of theRevised Code.

(b) If one or more of the offices, forwhich theperson is seeking election is a state office or anofficewith a district larger than a single county and none ofthe offices for wlrich the person is seeking election is afederal office, the secretary of state shaIl promptlyinvestigate and determine the offices forwhich theperson seeks to appearas a candidate on the ballot. Thesecretary of state shall order the b6ard of eleetions of

0.81 2010 SUPPLEMENT § 3513.05.2

each county in which the personis seeking to appear on according to the ballot order prescribed under sectionthe ballot to disquafify that person as acandidate for 3505.03 of the Revised Code,each office that would be listed on the ballot below the (b) If one or more of the offices for which thehighest office for which that person seeks election, person is seekingelection is a state office or an officeaccording to the ballot order prescribed mider section with a district larger than a singlecounty and none of3505.03 of the Revised Code. Each board of elections the offices for which the person is seekdng election is aso notifiedshall vote promptly to disqualify the person federal office, the board shall notify the secretary ofas a candidate in accordance with the order ofthe state. Thesecretary of state promptly shall investigatesecretary of state. If the person sought nomination at a and determine the offices for which the person seeks toprimary election and has not yet been issued a certifi- appear as a candidate on the ba]lot: The secretary ofcate of nomination, the board shall not issue that state shall order the board ofelections of each countycertificate for that person for any office that would be in which the person is seeking to appear on the ballotlisted on the ballot below the highest office for which to disqualify that person as a candidate for each officeht at person seeks election, according to the ballot order

prescribed under section 3505.03 of the Revised Code:(c) If each officeor the district for each office for

which the person is seeking election is wholly within asingle county and any of those offices is afederal office;the secretary of state shall notify the board of electionsof that county. The board then shall vote promptly todisqualifythat person asa candidate for each office thatis not a federal office. If the person sought nominationat a primary election and has not yet been issued acertificate of nomination, the board sballnot issue thatcertificate for that person for any office that is not afederal office.

(d) If one or more of the offices for vrhich theperson is seeking election is a state office and any of theoffices forwbich the person is seeking election is afederal office, the secretary of state shall order theboardof elections of each county in which the personis seeking to appear on the ballot to disqualify thatperson as a candidate for each office that is not afederal office. Each board of elections so notified shallvote promptly to disqualify the person as a candidate inaccordance with the order of the secretary of state. Ifthe person sought nomination at a primary election andhas not yet been issued a certificate of nomination, theboard shaIlhot issue that certificate for that person foranyoffice that is not a federal office.

(2) If a board of elections determines, after the dayof the primary election and before the day of thegeneral election, that a person is seeking election tomore than one office at that election in violation ofdivision (A) of this section, the board of elections shalldo one of the follrnaing:

(a) If each office or the district for each office forwhich the person is seeking election is wholly withinthat county and none of those offices is a federal office,+the. board shall determine the offices for which theperson seeks to appear as a candidate on the ballot. Theboard shall vote promptly to disqualify that person as acandidate for each office that would be listed on theballot below the highest office for wbich that personseeks election, according to the ballot order prescribedunder section 3505.03 of the Revised Code. If theperson sought nomination at a primary election and basnot yet been issued a certificate of nomination, theboard shall not issne that certificate for that person forany office that would be llsted on the ballot below thehighest office for which that person seeks election,

that would be listed on the ballot below the highestoffice for which that person seeks election, according tothe ballot order prescribed under section.3505.03 ofthe Revised Code. Each board of elections so notifiedshall vote promptly to disqualifythe person as acandidate in accordance with the order of the secretaryof state. If the persori sought nomination at a primaryelection and has not yet been issued a certificate of

'nomination, the board shall not issue that certifrcateforthat person. for any office that would be listed on theballot below the highest office for which that personseeks eleetion, according to the ballot order prescribedunder section 3505.03 of the Revised Code.

(c) If each office or the district for each office forwbich the person is seeking election is wholly withinthat county and any of those offices is a federal office,the board shall vote promptly to disqualify that personas a candidate for each office that is not a federal office.If the person sought nomination at a primaryelectionand has not yet been issued a certificate of yomination,the board shall not issue that certificate for that personfor any office that is not a federal office.

(d) If one or more of the offices for whichtheperson (s seeldng election is a state office and any of theofficesffor wtdch the person is seekdng election is afederal office, the board shall notify the secretary ofstate. The secretary of state shall order the board ofelections of each county in wbich the person is seekingto appeai on the ballot to disqualify that. person as acarididate for each office that is not a federal office.Each board of elections so notified shall vote promptlyto disqualify the person as a candidate in accordanoe,with the order of the secretary of state. If the personsought nomination at a primary election and has not yet.been issued a cerlificate of nomination, the board shallnot issue that certificate for that person for any officethat is not a federal office.

(E) When a person is disqualified as a candidateunder division (C) or.(D) of this section, on or beforethe sixtieth day before the day of the applicable-^-election, or, if the election is a presidentlal primaryelection, on or before the forty-fifth day before the dayof the presidential primary election, the board ofelections shall remove the person's name from theballot for any office for which that person has beendisqualified as a candidate according to the directionsof the secretary of state. When a person is disqualifiedas a candidate under division (C) or (D) of this sectionafter the sixtieth day before the day of the applicable

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§ 3513.06 PAGE'S OHIO REVISED CODE ANNOTATED

election, or, if the election is apresidential primaryelection, after the forty-fifth day before the day of#hepresidential primary election, the board of electionsshall not remove the person's name from the baIlot forany office for whicb that person has been disqualifiedas a candidate. The board of elections shall post anotice at each polling location on the day of theappllcable election, and shall enclose with each absentvoter's ballot given or mailedafter the candidate isdisqualified, a notice that votes for the person for theoffice for which the person has been disqualified as acandidate will be void and will not be counted. If thename is not removed from the ballots before the day ofthe election, the votes for the disqualified candidate arevoid and shall not be counted. If the natne is notreinoved from the ballots before the day of the elec-tion, the votes for the disqualified candidate are voidand shall not be counted.

(F) Any vacancy created by the disqualification of aperson as a candidate under division (C) or (D) of thissection may be filled in the manner provided for inseotions 3513.30 and 3513.31 of the Revised Code.

(C) Nothing' in this section or section 3513.04,3513.041 [3513.04.1], 3513.05, 3513.251 [3513.25.1], previde that relief; the candidate had used her maiden name3513.253 [3513.25.3], 3513.254 [3513.25.4], 3513.255^ on the candidacy declaration, although she used that as well as[3513.25.5], 3513.257 [3513.25.7], 3513.259 her married name on assorted legal documents, such that

[3513.25.9], or 3513.261 [3513.26.1] of the Revised there was no clear abandoninent of ber maiden naine and the

Code prohibits, and the secretary of state ora board ofelections shall not disqualify, a person from being acandidate for an office, if that person timely withdrawsas a candidate for any offices specified in division (A) ofthis section for which that person first sought tobecome a candidate by filing a declaration of candidacyand petition,a declaration of intent to be a write-incandidate, or a norninating petition, by party nomina-tion in a primary eleotion, or by the filling of a vacancymider section 3513.30 or 3513.31 of the Revised Code.

(H) As used in this section: `(1) "State office"means the offices of goveinor,

lieutenant govemor, secretary of state, auditdr of state,treasurer of state, attomey general, meniber of thestate board of education, meinber of the generalassembly, chief justice of the supreme court, andjustice of the supreme court.

(2) "Timely withdraws''means either of the follow-ing:

(a) Withdrawing as a cmididate before the appllca-ble deadline for filing a declaration of catididacy,declaration of intent to be a write-in candidate, ornominatingpetition for the subsequent office for whichthe person is seeldng to become a candidate- at thesame election; , .

(b) Withdrawing as a candidate before the applica-ble deadline for the filling of a vacancy under section3513.30 or 3513.31 of the Revised Code, if the personis seeldng to becotne a candidate for a subsequentoffice at the same election under either of thosesections. ,

E11STORY: 149 v H 445. Eff 12-23-2002; 150 v H 262, § 1, eff.5-7-04; 151 v H 66, § 101.01, eff. 9-29-05; 151 v H 3, § 1,eff.5-2-06.

Effect of amendments

151 v I-I 3, effective May 2, 2006, oontlnned the amendmentby 151 v H 66; and rewrote (E).

GenerallyRC § 3513.052 does not prevert the application of RC§ 3513.261 and 3513.05 to bar a second nominattng peti-

tion for the same office at the same election after the firstnoininating petition has been ruled invalid: State ex rel.Canales-Flores v. Lucas County Bd. of Elections, 108 Ohio St.3d 129, 841 N.E.2d 757, 2005 Ohio 5642, (2005).

§.3J~13.06 Effect of change of nameondeclaration of candidacy.

CASE NOTES AND OAG

Use of maiden nameWhere a potential candidate for a judge position brought a

mandamus action under Ohio Rev: Code Ann. § 2731.04,seeldng tocomp8l the eounty board of electionsto place hernaine on the ballot, her request for a writ failed where she didnot meet her burden of proof of showing that she had a clearlegal right to relief and that the board had a olear legal duty to

marriage exemption of Olrio Rev. Code Ann.§ 3513.06 didnot apply. State ex rel. Martiriez v. Cuyahoga Cty. Bd. ofElections, 2006 Ohio App. LEXIS 1556, 2006 Ohio 1665,(2006). -

§ 3513.07 Form of declaration of eandi-dacy; petition for candidate.

The form of declaration of candidacy and petition ofa person desiring to be a candidate for a party nomi-nation or a candidate for election to an office orposition to be voted for at a primary election shall besubstantially asfollows:

"DECLARATION OF CANDIDACY

PARTY PRIMARY ELECTION

I, .................... (Name of Candidate), the un-dersigned, hereby declare under penalty of electionfalsification that tny voting residence is in ...............precinct of the .......... (Township) or (Ward and Cityor Village) in the county of ............ . Ohio; that myvotuig residence is ............... (Street and Number, ifany, or Rural Route and Number) of the...:................ (City or Village) of ...,:....... ; Ohio;and that I azn a.qualified elector in the precinct inwhich my voting residence is located. I am a memberof the ........ Party. I hereby declare that I desire to be.................... (a candidate for nomination as acandidate of the Party for election to the office of.......... )(a candidate for election to the office orposition of .......... ) for the .......... in the state,district, (Full term or unexpired term ending .......... )county, city, or village of ................. at the primaryelection to be held on the .......... day of ......... ..:...

§ 3513.06 PAGE'S OHIO REVISED CODE ANNOTATED 82

t

G

I

election, or, if the election is a presidential priinaryelection, after the forty-fifth day before the day of thepresidential primary election, the board of electionsshall not remove the person's. name from the ballot forany office for which that person has been disqualifiedas a candidate. The board of elections shall post anotice at each polling location on the day of theapplicable election, and shall enclose with each absentvoter's ballot given or mailed after the candidate isdisqualified, a notice that votes for the person for theoffice for which the person has been disqualified as acandidate will be void and wIll not be counted. If thename is not removed from the ballots before the day ofthe election, the votes for the disqualified candidate arevoid and shall not be counted. If the nanie is notremoved from the baâots before the day of the elec-tion, the votes for the disqualified candidate are voidznd shall not be counted.

(F) Any vacancy created by the disqualification of aperson as a candidate under division (C) or (D) of thissection may be (illed in the manner provided for insections 3513.30 and 3513.31 of the Revised Code.

(G) Nothing' in this section or section 3513.04,3513.041 [3513.04.11, 3513.05, 3513.251 [3513.25.1],3513.253 [3513.25.3], 3513:254 [3513.25.4], 3513.255[3513.25.5], 3513.257 [3513.25.7], 3513.259[3513.25.9], or 3513.261 [3513.26.1] of the RevisedCode prohibits, and the secretary of state or a boardofelections shall not disqualify, a person from being acandidate for an office, if that person timely withdrawsas a candidate for any offices specified in division (A) ofthis section for which that person first sought tobecome a candidate by filing a declaration of candidacyand petition,-a declaration of intent to be a write-incandidate, or a nominating petition, by party nomina-tion in a prirnaazyelection, or by the filling of a vacancyunder section 3513.30-or 3513.31 of the Revised Code.

(H) As used in this section:(1) °State office"means the offices of govemor,

lieutenaiit govenior, secretary of state, auditdr of state,treasurer of state, attorney general, member of thestate board of education, member of the generalassembly, chief justice of the supreme court, andjustice of the supreme coult.

(2) "Timely withdraws"means either of the follow-ing: . . . .

(a) Witlidrawing as a candidate before the applicable deadline for filing a declaration of candidacy,declaration of intent to be a write-in candidate, ornominating petition for the subsequent office for whichthe person is seeldng to become a candidate at thesame election; ,

(b) Withdrawing as a candidate before the applica-ble deadline for the filling of a vacancy under section3513.30 or 3513.31 of the Revised Code, if the personis seeking to become a candidate for a subsequentoffice at the same election under either of thosesections. . . .

' HISTORY: 149 v H 445. Eff 12-23-2002; 150 v H 262, 1, eff.5-7-04; 151 v H 66, § 101.01, efl. 9-29-05; 151 v H 3, 1, eff.

Effect of amendments

151 v H 3, effective May 2, 2006, confirmed the amendmentby 151 v H 66; and rewrote (E).

GenerallyRC § 3513.052 does not prevent the applicatlon of RC§ 3513.261 and 3513.05 to bar a second nominating peti-

tion for the same office at the same election after the firstnominating petition has beeu ruled invalid: State ex rel.Canales-Flores v. Lucas Comity Bd. of Elections, 108 Ohio St..

'3d<129, 841 N.E.2d 7.57, 2005 Obio 5642, (2005).

§ 3513.06 Effect of change of name ondeclaration of candidacy.

CASE NOTES AND OAG

Use of maiden name. Ni?here a potential candidate for a judge position brought amandamus acHon under Ohio Rev. Code Ann. § 2731.04,seeldug to compel the county board of elections-to place hername on the ballot, her request for a writ failed where she didnot meet her burden of proof of showing that she had a clearlegal right to relief and that the board had a clear legal duty toprovide that relief; the candidate had used her maiden nameon the candidacy declaration, although she used that as well asher marriednameon assorted legal documents, such thatthere was no clear abandoninent of her maiden name and themarriage exemption of Oluo Rev. Code Ann.§ 3513.06 didnot apply. State ex rei. Martinez v. Cuyahoga Cty. Bd. ofElections, 2006 Oluo Yrpp. LEXIS 1556, 2006 Ohio 1665,(2006).

§ 3513.07 Form of declaration of candi-dacy; petition for candidate.

The form of declaration of candidacy and petition ofa person desiring to be a candidate for a party noini-nation or a candidate for election to an office orposition to be voted for at a primary election shall besubstantially as follows:

"DECLARATION OF CANDIDACY

' PARTY PRIMARY ELECTION

I, .................... (Name of Candidate), the un-dersigned, hereby declare under penalty of electionfalsification that my voting residence is in ...............precinct of the .......... (Township) or (Ward and Cityor Village) in the county of ............ . Ohio; that myvoting residence is ............... (Street and Nutnber, ifany, or Rural Route and Number) of the...:................ (City or Village)of ...::....... ; Ohio;and that I am aqualified elector in the precinct inivhich my voting residence is located. I am a memberof the .......: Party. I hereby declare that I desire to be................... (a candidate for nomination as a-candidate of the Party for election to the office of.....'..... )(a candidate for election to the office orposition of .......... ) for the .......... in the state, .district, (Full term or unexpired term ending ..........)county, city, or village of ....:........:... at the primaryelection to be held on the .......... day of ......... ..:...

A-51.

cN

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F

ment

RCpeu-fvstrel.

o St.

;ht a1.04,herdid

aearty toameII asthatthedidof

365,

l ofmi-orbe

2010 SUPPLEMENT § 3513.19

and I hereby request that my name be printed uponthe official priinary election ballot of the said ..:.....Party as a candidate for ........ (such nomination) or(such election) as provided by law.

I furtlier declare that, if elected to saidofficeorposition, I will qualify therefor, and that I will supportand abide by the principles enunciated by the ...... :...Party..-

Dated this .......... day of ...:...... . ...............................................................

(Signaturebf candidate)WHOEVER COMMITS ELECTION FALSIFICA-

TION IS GUILTY OF A FELONY OF THE FIFTHDEGREE.

PETITION OF CANDIDATEWe, the undersigned, qualifiedelectors of the state

of Ohio,whose voting residence is in the county,city,village; ward, township, or school district, andprecinctset opposite our names, and members of 'the......:............. Party, hereby certify that................... (Name of candidate) whosedeclara-

tion of can didacy is filed herewith, is a member of the.......... Party, and is, in our opinion, well qualified tbperform the duties of the office or position to whichthat candidate desires to be elected.

Street City,and Village or

Signature Number Townslrip Ward Precinct County Date

(Must use address on file withthe board of elections)

.:.. .............. ..... ......... . . . . ...........................

....................... . . . ............................................. (Name of circulator of petition),

declares under penalty of election falsification that thecirculator of the petition is a qualified elector of thestate of Ohio and resides at the address appearingbelow the signature of that circulator; that the circula-tor is a member of the ........... Party; that thecirculator is the circulator of the foregoing petitionpaper containing ............. (Number) signatures; thatthe circulator witnessed the affixing of every signature,that aIl signerswere to the best of the circulator'sknowledge and belief qualified to sign, and that everysignature is to the best of the circulator'sknowledgeand belief the signature of the personwhose signatureit purports to be or of an attoniey in fact actingpursuant to section 3501.382 [3501.38.2] of the Re-vised Code.

.......... ........:. . . ......... t.......(Signature of circulator)

....................................................(Address of circulator'spermanent

residence in this state)

of person employing. circulator to circulate

petition, if any)WHOEVER COMMITS ELECTION FALSIFICA-

TION IS GUILTY OF A FELONY OF THE FIFTHDEGREE°

The secretary of state shall prescribe a forin ofdeclaration of candidacy and petition, and the formshall be substantially similar to the declaration ofcandidacy and petition set fortb in this section, that willbe suitable for joint candidates for the offices ofgovernor and lieutenant govemor.

The petition provided for in this section shall becirculated only by a member of the same political.partyas thecandidate.

HISTORY: GC § 4875-71; 113 v 307(338), § 71; 122 v 325;Bureau of Code Revision, 10-1-53; 125 v 713(774) (Eff 1-1-54);130 v 831 (Eff 1-1-64); 135 v H 662 (Eff 9-27-74);137 v S 115 (Eff3-10-78); 138 v H 1062 (Eff3-23-81);143 v H7 (Eff 9-15-89); 146v H 99 (Eff 8-22-95); 148 v H 495 (Eff 5-9-2000); 149 v H5. Eff8-28-2001; 150 vH 1, § 1, eff. 3-31-05; 151 v H 3, § 1, eff.5-2-06.

See provisions of § 4 of 151 v H 3 following RC § 3501.38.

Effect of amendments

151 v H3, effective May 2, 2006, except amendmentspermitting and authorizing an attorney in fact to signelection documents oii behalf of a disabled voter, effectiveJune 1, 2006, in the paragraph beginning "(Name ofcirculator of petition)", added "or of an attorney in factacting pursuant to section 3501.382 of the Revised Code" tothe end; and added "of circulator's permanent residence inthis state" to the end of the "Address" entry on the form.

.§ 3513.09 Signature of candidate. or at-torney in fact.

If the petition required by section 3513.07 of theRevised Code to be filed with a declaration of candi-dacy consists of more than one separate petition paper,the declaration of candidacy of the candidate namedneed be signed by the candidate, or of an attorney infact acting pursuant to section 3501.382 [3501.38.2] ofthe Revised Code, on only one of such separatepetition papers, but the declaration of candidacy sosigned shall be copied on each other separate petitionpaper before the signature[s] of electors are placed onit.

HISTORY: 'GC § 4785-72; 113 v 307(339), § 72; 114 v679(690); 118 v 223; 122 v 325(336); Bureau of Code Revision,10-1-53; 137 v S 115 (Eff 3-10-78); 138 v H 1062. Eff 3-23-81; 151v H 3, § 1, eff. 5-2-06.

See provisions of § 4 of 151 v H 3 following RC § 3501.38.

Effect of amendments151 v H 3, effective May 2, 2006, except amendments

permitting and authorizing an attorney in fact to signelection doeuments on behalf of a disabled voter, effectiveJune 1, 2006, inserted °or of an attorney in fact actingpursuant pursuant to section 3501.382 of the RevisedCode", and made minor stykstic changes.

§ 3513.19 Challenges.(A) It is the duty of any judge of elections, whenever

any judge of elections doubts that a person attemptingto vote at a priinary election is legally entitled to vote atthat election, to challenge the right of that person tovote. The right of a person to vote at a primary electlonmay be challenged upon the following grounds:

A-52

(If petition is for a statewidecandidate, the name and address

§ 3513.26.2

0

{f

11

i+

ELECTIONS

mcnt of ctndidncv: State cx reL 1'Lillipv v I.or:tiu (;ty: t3d, ofLlections. 9:3 Ohio ,S't. 3d 535, 757 N. E.3d 319 (3(01 I.

lievi,sed (;ode §3.51:3.26.1 requiros unlv substunttal cYnn-plinnee wit6 the form of the statenieit of c.mdid.tc^,: State ezrel. Osboni v_ Faiiiicld (:N. ISd. of Elections, 65 Olliu S't..3d194, 602 N.E.2d 036 (1993)_

Finding of substautial comlxlitwce wnh RC ^:3513.26.1:State c\ rel. Manrerv. Fruuldin Ch^. 13d. of Electiune, 33 OLiuS't- 3d 5:3, 514 N. E.2d 709 (1987).

Void pefi6unA nowinatiug petition lilt[I pursu.wt to RC § 1907.05.1

and thf.s section i.c void mhe re it states tlu,t tLe cwdid,de isscrking election nt the };enenil election in Noveinbc-r to x fldltenn as crounh co;t ju;lge tmd tbere is no liill teon fiir whicl,wr election ttould he held at that tinie. A fiivor.drle vote cast bpthe eleators for snch candidate for a htll term as judge olt6rcumitv cowt is ineffective; stmh f;morzble cate can uat becrmstrned to be an election of the candidute for an nnespiredterm .vhere ehe quesYron presented on the ballot was elec4ionfor u fidl term: 1965 OAC No. 65-7 (1965).

[§ 3513.26.2] § 3513.262 Pro-cessing of petitions; public inspection; protests.

The noniinating petitions of all candidates requiredto be filecl before four p.nr. olthe dav before the day ofthe prim.uv electiotr immediately preceding the gen-eral elecBon sltall be processed as follows:

If such petition is filed with the secretary of state, hesh:dl, not later than the fifteenth dtrv of Jnne follo,vingthe fillng of snch petition, or if the piim:nn^election wasa presidential pdmmy election, not laterthan the endof the sixth week after the dav ofthat election, transmitto eacli boai-d such separate petition papers as pmportto contain signatures of electors of the c•ounq- of snchbom-d. If such petitlon is filecl with the board of themost populous county of a district or of a countv inwlrich the major portion of the popultition of a subdi-vision is located, such hoard shall, not later tlran thefifteenth day of June, or if the primary election was apresidential primaty election, not later thxn the end ofthe sixth week after the day of that election, transmit toeach board within such dishiet snch separate petitionpapers of the petition as putport to contain signaturesof electors of the countv of sucli board.

All peSHon papers so transmitted to a bo:u-d ancl allnotninating petitions filed with a board shall, ttnderproper reb tlations, be open to public inspection fiotnthe fifteentli dav of June until fonr p.nr. of the thii-tiethdav of that month, or if the primarv election was apresidential primaty election, from the end of the sixthweelc after the election nntil fotu-p.m. of the end of theseventli week afher the election. Each boar(I shall_ notlater than the next fifteenth day of Julg or if tbeprimnary, election was a presidential juimarv election,not later thau the end of the tenth week after the dttvof that election, exatnine and detertnine the sufficiencyof the simntures on the petition papers transnitted toot filed witli it, and the validitv of the peti5ons filedwith it, and sh;ill rehtnr to the secretaiv of state allpetition papet-s transmitted to it by him, toaethei- withits certification of its detertnination as to the vtdiditv orinvalidity of signatttres tlrereon, and shall return to

166

each other botrrd ; Jl petition papers trnusmitted to it bysncll other Iroard, as pruvidcd in this .sectiun, toyetherwith its certification ofits de.ternrfnatiou as to thevalidity ot- invaliditv ofsigmatnree thereon. All utherntatters affecl the validitv or invaliditv of suchpetitiou papers shall be determined by the .secrettuyofstate or the bourd yvitli whom snch petition pupers werefiled.

Written protest.s against nornnratingpetitions xiav 1>rfiled bv airy qualified clector eli},+ible to vote fitrthecandid<tte whose nomin,rting petition he objects to, rnotlaterthan fonrp.m.ufthc tldrtieth davol July, oril theptimarv election was a presielentiel prinmiY election,uot later than thc end of the hvelftli week after the dayof that elec4ion. Such protests .slrall be filed with theelection officials with v,^hoin the nominating petitionwas filed. Upon the filing of .sncli protest, the electionofficials with stlroni ltis filed shall prompAy fis the timc:md placre for hetuingft, and shall forthwttli m,ul noticeof the filfng of sueh protest ssnd the time and place forheming i t to the pe rson vrhose nonr iuation is protestcd.Thec shall alsn fortlnvith mail notice of the tinre andplace fixed for the hearing to the person who filed theprotest. At the time fixed, suclt election oflicials shallhemthe protest and determine tlie validih orinvalidith^ofthe petition. Such determination shtdl^be final.

A protest against the nominating petition filecl bvjoint candidates forthe offlecs of governor tm(1 lieitten-ant governor shall be filed, hea'd, and (letermined inthe samne manner as a pirotest against the nominatingpetition of a candidate wdio files bv bimself.

HISTORY: 125 v 711 (Eff 1-1.54); 135 v H 662 (Eff9-27-74); 13S v H 1062 (p8f 3-23-51); 141 r 11 524 (Eff 3-17-87);145 v S 150. Eff 12-29-93.

Cross-References to Related SeeHuns

Rejection of petifions. IiC § .3501.39.

Research Aids

Proce.ssin, ofpetitions; protests:O-Jur3d: Elect §( 103. 105AurJnr2d: Eleet ^ 222

CASE NOTES AND OAG

AirtIiontv Id hatrclDnt,- of board of rlrcbons1'rotr.vt

Authority of boardThe board ofelections did not abnse it.v disc•rction or detulc

disregmcl apPlicable law in deminG a protest to a candfdate3eligibi lity for the office of coroner: State ex rel. Walls- l.1 I:u-clinC:R. 13d. Of Elections, 156 Ohio App. 3d 55 (2004).

The determinution of a bo;vd of elections ^,dth respect to aprotest against a nomrnuti n+ petition is not uppc alable: Stateex rel. Moss c. Bd, of Elections.89 Ohio App- 2d 115. 23 (7hioOp. 3d 324, 4.32 N.E.2d 210 (1980).

Duty of board of electionsA hoard of elections ia under a m,mdatoiti dnR_ under RC3501.11 and 3513.2$.3 to detcrmine the vadidih' of nonif-

nating petitions whetfter or not a pmtest is filed against themnnder this section: 1956 OAG No. 6919 (1956).

A-5

167

Reisedelections shand validity§ .3513.26.="examfne althe petitionother matopetifion palor the boarwritten pronominatint;protest andprotest andand °such da board of cthe noaninaineligble tcleterminesuch boardcorruption,or legal prcreview: Stal193, 57 Oh

ProtestA. elect

pursuant ttboard of epursuant tcandidate Nparty to sdefendemt:41 Ohio 0

Petitionflve remedcannot maElections,229 (1958)

[§ 3cessing c

The acto be filbefore tlicessed as

if suchsltall proipetition Ielectors c

If suc]rwhich thvision is Ithe boar-<suclt subpapers ofof electol

All peelections.board ofopen totieth dayboard sh.the daymine thepapers tr

PRIMARIES; NOMINATIONS § 3513.26.3

Revised Code § 3501,11 provid'urg that each board ofelectioos sludl "review, examine, and certify the sufficiencyand validity of petitions and noinutation papers," and RC§ 3513.26.2, which provides that each board of elections shallexamine anc7 determine the sufBciency of the siz,natrres on

the petitiou papers transmitted to or filed with it"; that -allother matters affecting the valirlity or invalidity of suchpetition papers, shall be cleterminerl by the secret,uy of stateor the board with whoin such pefltion papers were filecl"; thatwritten protests °with the election officials with whom thenominating petition was filed"; and that, npan filing of suchprotest and after uotice, -s'uch election officials shall hear theprotestanddeterminethe,^edidityorinvalidityoftlrepetitiodand'such determination shall be fimd": authorize and requiren board of elections to conduct a hearin.g ou a protest apalnstthe noininatinn petition of a candidate who is alleged to beinelieible to as.stne the office sought, if elected, and todeternune the validity of such petition; and the decision ofsuch board is final and, in the absence of allegations of fratud,comtption, abuse of discrefion or a edear disregard of stattttesor legal pro^-isians applicable tlhereto, is not 6ubject to judicialreview: State es rel. Fhnm v. Board of Elections, 164 Obio St.193, 57 Ohio Op. 402, 129 N.E.2d 623 (1955).

ProtestAn elector, who files a protest with a boatd of elections

pursuant to this section which protest is overrtded by suchboard of elections, can appeal to the common pleas com'tpursuant to I1C Chapter 2506 If such an appeal is filed, acandidate whose peti8ons are being challenged is a necessaryparty to sueh an appeal and must be joined as :t partydefendant: State ez rel. 5mith v. lohnson, 13 Ohio App. 2d 67,41 Ohio Op. 2d 163, 231 N.E.2d St (1967).

Petitioner, has9ng failed to exhaust his statutorv adininistra-tive remedy of filing a protest to the nominatina petitions,cannot maintain an action in mandannts: Malnnze v. Board ofElections, 167 Ohio St. 323, 4 Ohio Op. 2d 401, 148 N.E.2(1

229 (19.59).

[§ 3513.26.3] § 3513.263 Pro-N,eessing of nominating petitions; protests.

The nominating petitions of,all cattdidates reqniredto be filed before four p.m. of the seventy-fifth daybefore the day of the general election, shall be pro-

ces.sed as follows:If sttch petition is filed xvith the sec•retary ofstde, he

sb,11 rom)tlv transtnit to ench board snch separate

)p tpers of ihe petition a.s purlof electors of suclt aotutty eleenons disclnses subscmn^J evPdencc. snppornny the fnding

1 ,t..,l. .n ,.,. ^f r nrhda<<_ sud^

.. .cStich Sn X iv^S^on uE eort to conffiin signahtres Where the record of the he•.uing before the bo.ucl of

invalidity of petitions filed with it, and shall rettnii toeach other board all petition papers transinitted to it bysuch otber board, together with its certification of itsdetenmination as to the validity or invalidity of signa-tui-es thereon. All other tnattet_s aElectina the vtdidity orinvaliditv of sncb pelition papers shall be determinedby the board Nvith wbom such pe6tion papers were

Ciled.Writteu protests against snclr nominating petitious

may be filed by trny qtialified elector elib ble to vote forthe candidate wbose nominating petition he objects to,not hrter than the sixty-fourth day before the generalelection. Such protests shall be filed with the etectiouofficials v^itlr whoin the notninating petition was filed.Upon the filing of snch protests, tlre electiou officialswith whom it is filed shall promptly fix the Hnie andplace for hearing it, and shall forthwith mail notice ofthe filing of such protest and the time amd place forhearing it to the person wlrose nomination is protested.Tbey.slutll also fotthwidt tnail notice of the titne andplace fixed for the hearing to the person who filed theprotest. At the time and place fi,eed, such electiouofficials shall hear the protest mrd determine thevalidity or invalidity of tlre petition. Such determination

shall be final.

HISTORY: 125 v 713(788) (EPf' 1-1-54); 133 v S 19 (Ell10-30-69); 137,S 115 (Eff 3-10-78); 138 v H 1062. Eff 3-23-Sl.

Cross-References to Related Sections

Rejection of pe5tions, RC § :3.501.:39.

Research Aids

Processing of petitions; protests:O-Jur3d: Elect§§ 103, 105Am ,Jar2d: Elect § 222

CASE NOTES AND OAG

INDEX

AutLuritv of haard nF rlectI)evJ.vaHrni of eran<Iidacy'Rne Itndt.dinos

Authority of boarcl of electionsThe purpose of tlti,t section is to ^et the bo.ad to act

promptly. It was not desioned to tniv2validity to an invdid

petition where not acted upon by the hoard within a definiteperiod of tinie: State es rel. Svete v. 13oard of Elections, 4OhioSt. °d 16, 33 Ohio Op. 3d 139, 212 N.E.2d 420 (1965).

etx oaic o . l, ,' l 1 ^ ^ ocated sach scparate pefition ' Dr•rtirin of eandidacyl2

p 1 ,peHtion papers as pmTorts to contain sib xtures of'electors of the connt^• of snch boartl.

If such pe6tion is filed with the board of a connty inwhich the mujor portion of the poptdation of a subdi-vision is located, such board sltall pranptly transcnitto

ic•h conntv in which other portions ofI bl f

.open to public inspection nntil four p.m. of the seven- " ''

E ^1l

elections, and all mmnm^eting pettttons hlec witi aboard of elec6ons shall, nncLer proper regnlation, be el. Klinl. v, Eyrich, L57 Ohio St. 338, 4i Ohio Op. 198. 10.5

NE^d499(1952)

Atl pettnon papers su ) 1 findinu will not be disturbed by thesnprema conrt: State ex

ectton. ac ttieth daybefore the day ot such qeneral eboard shall, not later than the sixty c.ighth day beforethe day of sncb •s,Teneral election eeunine and deer-rnine tlie sufficiency of the signatures on the petitionpapers transmitted to or filed with it and the validity or

Time limitationsThe sizty-fonr day lnnitttion in t G§ 351:3.263 applies only

to protests filed against a nomintttnK petitton State ex rel.Rust v. L.ncas C:tv. t3d. Of Electlons, l00 Ohiu St. 3d 214

(2003).

. PRIMARIES; NOMINATIONS § 3513.26.3

Revised Code § 3501.11 providing that e:uh board ofelections sliatl "review, examine, and certify the sufficiencyand validity of petitions and noinination papers," and RC§ 3513.26.2, which provides that eacll board of elections shall`examine and determine the suffieiency of the signatures onthe pefifion papers transinitted to or filed with it"; that'allother matters affecfing the validity or invediclity of snchpetition papers, sltall l>e determined by the seeretatv of stateor the board evith whom such petition papers were filed"; thatwritten protests `with the election officials with whom thenominating petition was filed"; and that, upon filing of suchprotest and after notice, "such election officials shall hear theptrotest and deternnine the validity or invalidity of the petiflon°and "snch determination shall be final"; authoiize and requirea board of electlons to conduct a hearing on a protest againstthe nominafing petition of a candidate who is alleged to beineligible to assume the office sought, if elected, and todetermine the smli<$ty of sueh petifion; and the decision ofsuch board is final and, in ttie absence of allegations of &aud,eorruption; abuse of discretion or a clear disregmd of statutesor legal provisions applicable thereto, is not subject to judicialreeiew: State ex rel. Flvnn v. Board of Eleetions, 164 Oliio St.193. 57 Ohio Op. 402, 129 N.E.2d 623 (1955).

ProtestAn elector. who files a protest with a board of elecfions

pursuant to this section whicli protest is ovenmled by suchboard of elections. can appeal to the common pleas courtpursuant to RC Chapter 2506 If such Lm appeal is filed, acandidate whose petitions are being challenged is a necessaryparty to such an appeal and inust be joinecl as a partydefendant: State ex rel. Smith v. Johnson, 12 Ohio App. 2d 87,41 Ohio Op. 2d 163, 231 N.E.2d 81 (1967).

Petitioner, lraving failed to exhaust liis statutory administra-tive remedy of fiting a protest to the noininating petltion.s,cannot maintain an action in matndamus: Maranze v. Board ofElections, 1.67 Oliio St. 323, 4 Ohio Op. 2d 401, 148 N.E.2d229 (19ss).

[§ 3513.26.3] § 3513.263 Pro-cessing of nominating petit3ons; protests.

The nominating petltlons of al candidates requiredto be filed before four p.m. of the seventy-fifth daybefore the day of the general election, shall be pro-cessed as follows:

If such petition is filecl with the secretary of state, heslrall promptly transinit to each board such separatepetition papers as purports to contain sibiattues ofelectors of the county of suci board.

If such petition is filed with the board of a cormty inwliich the major portion of the populatioo of a subdi-vision is located, such board shall promptly transmit tothe board oP each county in which other portions ofsuch snbdivision are located such separate petitionpapers of the petition as purport to contain signaturesof electors of sucli county.

All petition papers so transmitted to a board ofelections, and all rrominating petltions filed with aboard of elections sliall, under proper rer^nslation, beopen to public inspection un6l four p.m. of the seven-tleth day before the day of snclt general election. Eachboard shall, not later than the si;dy-eighth day beforethe day of such general election examine and determine the snfficiency of the signatures on the petitionpapers transmitted to or filed with it and the validity or

invalidity of petitions filed with it, and shall return toeach other board ali petition papers trmisinitted to it bysuch other board, togetlier with its ceriification of itsdetermination as to the validity or invalidity of signa-tiires tliereon. All other tnatters affecting the validity orinvalidity of such petition papers shall be deterrninedby the board with whom sucll petition papers were

filed.\Vritten protests against such nominating petitions

may be filed by any qualified elector eligible to vote forthe candidate evhose nominating petition he objects to,not later than the sisty-fourtly day before the generalelection. Such protests shall be filed witli the electionofficials with whom the nominating petition was filed.Upon the filing of such protests, the election officialswitli whom it is filed shall promptly fix the time andplace for hearing it, and sliall fortliwith mail noHce ofthe filing of such protest and the tilne and place forhearing it to the person wlrose noinination is protested.They shall also forthwith mail notice of the titne andplace fixed for the lrearing to the person wlro filed theprotest. At the time and place fixed, sach electionofficials shall hear the protest and deterrnine thevalidity or invalidity of the petition. Sucly determinationshall be final.

IiISTORY: 125 v 713(788) (Eff 1-1-54); 133 v S 19 (Eff10-30-69); 137 v S 115 (Eff 3-1048); 138 v H 1062. Eff 3-23-81.

Cross-References to Related Seelions

Rejection of petit]ons, RC § 3501.39.

Research Aids

Processing of petitions; protests:O4ur3d: Elect§§ 103, 105Am-Jur2d: Elect § 222

CASE NOTES AND OAG

INDEX

Authority of bozrd of electionsDedaratlon of aanclidxcpThne IlnuhRiuns

Authority of board of electionsThe purpose of this section is to get the bourd to act

promptly. It was not desi+yred to give validity to an invalidpetition where not acted upon by tbe board within a defhniteperiod of time: State ex rel. Svete v. Board of Elections, 4 Obio

,St. 2d 16, 33 Ohio Op. 2d 139, 212 N.E.2d 420 (1965).

Declaration of candidacyofWhere the record of the hearing befnre the board of

elections discloses srbstantial evidence supporting the finrloigof the board appmving a declaratlon of candidacy, suchfinding wfll not be di.sthn-bed by the snpreme court: State exi-el. (Clink v. Eyrich, 157 Ohio St..338, 47Ohio Op. 196, 105N.E.2d 399 (1952).

Time limitationsThe sixty-Fonr day IimitaHon in RC § 3513,263 applies only

to protests filed against n noniinating petition State ex ret.Rust v. Lucas Cty. Bd. Of Elections, 100 Ohio St. 3d 214

(2003).

§ 3599.34 ELECTIONS 326

Research Aids

F:ilsification or destruction of ballots:O-Jur3d: Elect § 303Am-Jur2d: Elect § 469

§ 3599.34 Destruction of election recordsbefore expiration of time for contest.

No person, from the tiine ballots are cast or voteduntil the titne has expired for using them in a recormtor as evidence in a contest of election, shall unlawfullydestroy or attempt to destroy the ballots, or perinitsuch ballots or a ballot box or pollbook used at anelection to be destroyed; or destroy, falsify, mark, orwrite in a name on any such ballot that has been voted.

Whoever violates this section is guilty of a felony ofthe fifth degree.

HISTORY: GC § 4785-224; 113 v 307(410), § 224; Bureau ofCode Revision, 10-1-53; 139 v S 199 (Eff 1-1-83); 146 v S 2. Eff7-1-96.

The effective date is set by section 6 of SB 2.

Cross-References to Related Sections

Penalty, RC § 2929.11.

Research AidsDestruction of ballots or records:

O-Jur3d: Elect § 303Am-Jur2d: Elect §§ 469, 475

ALR

Admissibility of election ballots in quo warranto proceedings.71 ALR2d353.

§ 3599 .35 Proxies not tobe given byparty representatives; irnpersonation of represen-tatives. I

No party cotnmitteeperson or party delegate oralternate chosenat an election, or a delegate oralternate appointed to a convention provided by law,shaIl give or issue a proxy or autbority to anotherperson to act or vote in that person's stead.

No person shall knowingly or fraudulently act or voteor attetnpt to impersonate, act, or vote in place of thatcoinmitteeperson, delegate, or alternate.

Whoever violatesthis section is guilty of a tnisde-meanor of the first degree.

HISTORY: GC § 4785-225; 113 v 307(410), § 225; Bureau ofCode Re^ision, 10-1-53; 147 v S 116. Eff 12-9-97.

Researeh Aids

Offenses:O-Jui3d: Elect § 304Am-Jur2d: Elect § 327

§ 3599.36Election falsification.

No person; either orally or in wiiting, on oathlawfullyadministered or in a statement tnade underpenalty of election fxlsification, shall knowingly, sta#e afalsehood as to a tnaterial matter relating to an electionin a proceeding before a court, tribunal, or election

official, or in a matter in relation to which an oath orstatement under penalty of election falsificatiotr is-autho3izedba law, inc9uding a statement required forverifying or filing any declaration of candidacy, decla-ration of intent to be a write-in candidate, nominatingpetition, or other petition presented to or filed vjth theseci-etary of state, a board of elections, or any otherpublic office for the purpose of becoming a candidatefor any elective office, including the office ofa politicalparty, for the purpose of submittiug a question or issueto the electors at an electioil,or for the purpose off'orniing a political party.

Whoever violates thissection is guiltyof electionfalsification, a felony of the fifth degree.

Evety paper, card, or other docmnent relating to anyelection matter that calls for a statementto be inadeunder penalty of election falsification shall be accom-panied by the following statement in bold face capitalletters: "Whoever cotntnits eleetion falsification isguilty of a felony of the fifth degree."

HISTORY: GC § 4785-226; 113 v 307(411), § 226; Bureau ofCude Revisioq 10-1-53; 128 v S 204 (Eff 8-28-59); 135 v S 429(Eff 7-26-74); 135 v H 662 (Eff 9-27-74); 138 v H 1062 (Eff3-23-81); 147 v S 116. EfP 12-9-97.

Cross-References to Related Sections

Penalty. RC § 2929.21.Perjury, RC§ 2921.11.

Research Aids

Perjuiy:O-Jur3d: Elect §§ 287,.288

CASE NOTES AND OAG

Countv charter amendnnentsPetitionRelation to other Iaws9tancLng

INDEX

County charter amendmentslv'onconflicting provisions, such as tbe election falsification

statement provisionsof RC§§ 3501.38(J) and 3599.36, applyto countv charter amendment petitions: State ex rel. Vickers v.Stunmlt Ctv. Cotmcil, 97 Obio St. 3d 204, 2002-Ohio-5583,777 N.E.2d 830 (2002).

PetitionAllegedly false statements in a petition for recall of a

mttnicipal offieer under RC§ 705.92 do not ptmvide a basisfor an injunction against the election, since there is norequirement tliat the petition contain the'-trutli°: Langley v.Fetterolf, 89 OuoApp. 3d 14, 623N:E.2d 577 (1993).

Relation to other lawsUnder RC§ 1.52(A), RC § 3599.36, the statnte later in

dateof enactment, prevails overfornier RC § 3501.38(J):Stutzman v. Madison Cty. Bd. of Elections, 93 Oliio St. 3d51.1,757 N.E.2d 297 (2001).

StandingBecause the .tisk of criminal prosecution for signing a

declaration of candidacy is not hypothetiealor abstract..candidate-plainHff-neet7 notbe subjected to suclr a burden

before exercising his rigbt to challenge the Oliio eonstitutionalprovision and because declaration of candidacy inust be

326

. oris

for:la-ingtheieratecaliueof

ion

myAem-tal

is

, of!29Eff

aAsro

a

nale

OFFENSES AND PENALTIES § 3599.40

signed before. petifioos can be signed or circulated, 'voter"plaintiff is precluded from advancing candidacy, the courtGnds that plaunHffs have standing in this inattec Zielasko v.State of Ohio, 693 F. Supp. 577 (N.D. Ohio 1988).

§ 3599.37 Disobedience of subpoenaconcerning violation of election laws.

(A) No person having been subpoenaed or orderedto appear before a grand jury, court, board, or officer ina proceeding or pr-osecution npon a complaiut, infor-mation, affidavit, or indictlnent for au of'fense under turelection law sllall do either of the following:

(1) Fail to appear or, Iraving appeared, refuse toanswer a quesHon pertineut to the matter underinqu.iry or invest3gation;

(2) Refuse to produce, upon reasonable notice, anymaterial, boolcs, papers, documents, or records in tlmtperson's possession or under- that person's control.

(B) Whoever violates division (A) of this section,unless the violator claims thevi,olators constitnflonalriglrts, is guilty of a inisdemeanor of the first degree.HISTORY: GC § 4785-227; 113 v 307(411), g 227; 114 v

679(713); Bureau of Code Revision, 10-1-53; 147 v S 116. Ef£12-9-97.

Research Aids

Refusal of witness to appear or testify:O-Jur3d: Contpt § 34; Elect § 285Am-Jur2d: Elect 493

ALR

Admissibility of election ballots in quo warranto proceedtngs.71 ALR2d353.

Prmishinent of election officers for conte:npt. 64 A.L.R. 1019.

§ 3599.38 nlegany influencing voters.

(A) No election official, witness, challen ger, deputysheriff, special depttty sheriff, or police offic•er, whileperforming that person's duties related to the casting ofvotes, shall do either of the following:

(1) Wear any badge, sign, or other insignia ot- tlringindicating tbat person's prefere-nce for any candidate orfor any qtiestion submitted at an election;

(2) Influence or attempt to influence any voter tocast the voter's ballot for or against any candidate orissne submitted at an election.

(B) Whoever violates (livision (A) of this sectlon isgailty of a misderneanor of the first degree.

HISTORY: GC § 4785-228; 113 v 307(411), § 228; Bureau ofCode Revision, 10-1-53; 147 v S 116. Eff 12-9-97.

Research Aids

Offense.s by electlon ofAcitds:O-Jur3d: Elect § 298Am-Jur2d: Elect § 469

§ 3599.39 Second convicHon under elec-

tion laws.

Any person convieted of a violation of any provisionof'Citle XXXV [35] of the Revised Code, who is againconvicted of a violation of any such provision, whether

sueh conviction is for the same offense or not, is onsuch second conviction d ilty of afelony of the fourthdegree, and in addition, shall be disfranchised.

HISTORY: GC § 4785-230; 113 v 307(412), § 230; Bureau ofCode Revision, 10-1-53; 126 v 575 (Eff t0-6-55); 147 v S 116. Eff12-9-97.

Cross-References to Related Sections

Penalties for fetony, RC § 2929.11.

Research Aids

Second offenses:O-Jur3d: Civ Sen § 191; Elect § 286

§ 3599.40 General penalty.

Except as otllerwise provided in section 3599.39 ofthe Revised Code, whoever violates anv provision ofTitle XXXV [35] of the Revised Code, rmless otberwiseprovided in such title, is gnilty of a misdeineanor of thefirst degree.' I3ISTORY: GC § 4785-232; 113 v 307(412); § 232; Bureau ofCode Revi-vion, 10-1-53; 134 v H 511 (Eff 1-1-74); 147 v S 116.Eff 12-9-97.

Cross-References to Related Sections

Penalty. RC § 2929.21.

Research Aids

Offenses:O-Jur3d: Elect §§ 282, 301, 302Am-Jur2de Elect § 487

CASE NOTES AND OAG

INDEX

Anthorftv of electlons umunissioFilingReqniremeents

Authodty of elections commissionNeither OConst art 11, § 28 nor uny other constitutional

provision prohibits the elections commis'sion from takingjurisdiction of an alleged violation of the election laws whichoccurred prior to the effective date of AmSub SB No. 46,which e-stablislied thecommission. The elections commissionhas stanttorv authmity to investigate a statement of expendi-tures which was filed nn June 19.1974- The investigaHveprocedm'es set fbrth in AmSuh SR No. 46 is farelapplieahleto an investigation, after the effective date of that act, of analleged violation whiclr occurred before its effective date, inorder to determine whether the election laws as they re.ulons'uclt earlier date were violated. Unless otherwf.se specified,the two-year limitafion of RC §§ .3599.40 and 2901.13(A)applies to pro.secutions of violations of the election laws whichoc•curred after January 1, 1973; the one-year liinitation offormer RC: §.3.599.40 applies to thosewhic•h occurredbeforethat date: 1974 OAC No. 74-087 (1974).

FdingA candidate for office who fails to file a statement of

expencBtnres as retlnired by RC § 3517-10 within the timeprescribed by that section is snhject to the ,specific penaltyprovided io RC §3511.1 t for fuihtrc to file within thepre.scribed period, bnt is not snbject to the penalty provisionof RC: §:3599.40 for.snch faflure: 1962 OAC No. 2875 (1962).

57 Peace Officers Basic Training Program 109:2-1-12

consider include but are not limited to: illness of either theindividual or his immediate family; emergency employmentsituations; or other valid reasons such as transportation failure.The executive director shall rule on that request within fifteencalendar days of his receipt of the request. If the request isgranted, theexecutive director shall approve in writing themethod of completing the training.

(2) If the request to complete the course is denied by theexecutive director, the individual may request a hearing beforethe Ohio peace officer training council as provided in sections119.06 and 119.07 of the Revised Code. The council shallconduct the heanng as required by sections 119.01 to 119.13 ofthe Revised Code.

(C) There shall be no excused absences from the firearmstraining; domestic violence training; crisis intervention train-ing; missirig, abused, and peglected children; laws of arrest;search and seizure; and cultural sensitivity portions of the basiccourse; or any other topic designated by the Ohio generalassembly or the council.

(D) The commander shall be responsible for maintainingan accurate record of attendance for each individual attendingthe basic course. He shall forward such records to the execu-tive director, where they shall be available for authorizedinspection.

HISTORY: 1993-94OMR 155 (A), eff. 10-1-931987-88 OMR 574 (A-TF 109:2-1-08), eff. 1-1-88; 1987-88OMR 574 (A-TT 109:2-1-10), eff. 1-1-88; prior PC-1-09

CROSS REFERENCES

RC 109.73, Powers and dutiesRC 109.74, Promulgation of rules and regulations by attomey

generalRC 109.75, Executive director

109:2-1-10 Notebook

Each individual in the basic course shall maintain, as one ofthe requirements for certification, an adequate notebook dur-ing the course and shall submit such notebook to the com-mander for inspection. The notebook shall be evaluated assatisfactory or unsatisfactory by the commander. Thenotebook shall contain appropriate entries of pertinent mate-rial covered during the classroom sessions of the basic course.Among the factors to be evaluated in the notebook are: suffi-ciency of course content, organization, appropriateness ofmaterial, regularity of entries, neatness, accuracy and legibility.

HISTORY: 1987-88 OMR 575 (A-TF 109:2-1-09), eff. 1-1-881987-88 OMR 575 (A-TT 109:2-1-11), eff. 1-1-88; 1981-82OMR 383 (A), eff. 3-1-82; prior PC-1-10

CROSS REFERENCES

RC 109.73, Powers and dutiesRC 109.74, Promulgation of rules and regulations by attorney

generalRC 109.75, Executive directorRC 109.751, Approval of schools; attendance of undercover drug

agents

RC 109.77, CertiScate of training for peace officer, liquor controlinvestigator, bailiff, or criminal investigator; training in domestic mat-tcrs, crisis intervemion; exceptions; prohibition

109:2-1=1I Examination

(A) No person shall participate in the final written exami-nation who has been evaluated as unsatisfactory for the driv-ing, first aid, firearms, and unarmed self-defense units of

instruction.(B) A final written examination must be taken and passed

by a minimum score of seventy per cent by each individualrecommended for certification. Prior to January 1, 1989, theassembling of examination material, and the preparation,supervision and grading of the examination shall be theresponsibility of the commander. The commander shall for-ward the examination results and a copy of the examination tothe executive director. The individual examination papers shallbe disposed of in accordance with the recommendation of the

executive director.(C) For any school commencing on or after January 1,

1989, the Ohio peace officer training council will, in additionto any examination given by a commander, prepare, conduct,and score a final examination for each person completing thebasic course. The results of this examination shall be madeknown to the commander within five business days of the dateadministered. No person shall be recommended for certifica-tion by a commander unless he achieves a minimum score ofseventy per cent. Persons failing to achieve a minimum scoreof seventy per cent shall be given one retest. This test shall begiven within two weeks of the date of the first examination.The results of the test shall be made known to the commanderwithin five business days of the date administered. Studentswho fail the retest shall not be permitted to take the finalwritten examination again until they successfully completeanother peace officer basic training course.

HISTORY: 1990-91 OMR 179 (A), eff. 8-21-901987-88 OMR 575 (A-TF 109:2-1-10), eff. 1-1-88; 1987-88OMR 575 (A-TT 109:2-1-12), eff. 1-15-88; 1981-82 OMR384 (A), eff. 3-1-82; prior PC-1-11

. .. . CRQSS REFERENCES

RC 109.73, 109.74, Powers and dutics; promulgation of rules

RC 109.75, 109.751, Executive director; approval of schoolsRC 109.77, Certificate of training for pcace officer, liquor control

investigator, bailiff, or criminal investigator; training in domcstic mat-ters, crisis intervention; exceptions; prohibition

109:2-1-12 Certification before service, re-entry require-

ments and notice of employment and termination

(A)(1) No person shall, after January 1, 1966, receive anoriginal appointment on a permanent basis as a peace officerunless such person has previously been awarded a certificateby the executive director attesting to his satisfactory comple-tion of the basic course prescribed in rule 109:2-1-16 of the

Administrative Code.

. A-58

109:2-1-12 Peace Officer Training Cornmission 58

(2) No person shall, after January 1, 1989, be permitted toperform the functions of a peace officer or to carry a wcaponin connection with his peace officer duties unless such personhas successfully completed the basic course.

(B)(1) Persons certified by the Ohio peace officer trainingcouncil after January 1, 1966, or those who possessed thestatus as a peace officer on January 1, 1966, who terminatetheir employment from a department, will have their trainingeligibility reviewed upon reappointment to a department bythe executive director of the council.

(2) A person defined as a peace officer and holding acommission as a railroad police officer on August 19, 1976,under the provisions of section 4973.17 of the Revised Codeshall not be required to complete the training required underthis clka^je€-- . .

(3) All peace officers who were exempted from the basictraining course, by virtue of possessing peace officer status onJanuary 1, 1966; or exempted from training because of holdinga valid commission under section 4973.17 of the Revised Codeon August 19, 1976, except as noted in paragraph (B)(7) of thisrule, shall take the mandatory basic training course, for certifi-cation upon re-entry. This requirement may be successfullymet by presentation of documented proof of training equal toor exceeding the minimum basic requirement at the time saidcredit is sought, provided that to be acceptable as equivalenttraining, the training must have been received in a method thatis approved by the executive director.

(4) The executive director shall review the documents rela-tive to the training previously completed and where the train-ing is deemed to be equivalent training, shall grant credit forthat portion of the training. The officer will be required tosuccessfully complete all training for which he cannot providedocuments. When this required training is completed, theofficer will be certified.

(5) Should the executive directorrefuse togrant credit fortraining previously completed, the applicant may request ahearing before the Ohio peace officer training council. Saidhearing shall be held in compliance with sections 119.01 to119.13 of the Revised Code.

(6) No credit shall be given under this rule for experiencewhich is not part of a formal training or education program.

(7) All peace officers employed by a county, township, ormunicipal corporation of the state of Ohio on January 1, 1966,and who have completed at least sixteen years of full-timeactive service as such peace officer, may receive an originalappointment on a permanent basis and serve as a peace officerof a county, township, or municipal corporation, or as a stateuniversity law enforcement officer without receiving a basictraining certificate signed by the executive director.

(C) All persons who have previously been certified by theOhio peace officer training councit and have had their employ-ment as a peace officer terminated for less than one year maymaintain their eligibility for re-appointment as a peace officer.In the event specialized training has been mandated during theperiod between the date of original appointment and the re-appointment date, said individual shatl be required to success-fully complete the mandated specialized training upon re-entryinto employment as a peace officer.

(D) All persons who have not been employed as a peaceofficer for one year or more but less than four years shall,upon re-entry into employment as a peace officer, attend arefresher course prescribed by the executive director.

This course and appropriate examination must be approvedby the executive director and shall meet the criteria set forth inthese rules for the cunduct of a basic training course.

(E) All persons who have not been employed as a peaceofficer for more than four years shall, upon re-entry intoemployment as a peace officer, complete a basic course.

(F) Any person who has been certified by the Ohio peaceofficer training council and has been elected or appointed tothe office of sheriff shall be considered a peace officer duringthe term of office for the purpose of maintaining a current andvalid basic training certificate. Any training requirementsrequired of peace officers shall also be required of sheriffs.

(G) Credit for prior equivalent training or education:(1) An individual who has successfully completed prior

equivalent training or education other than under the auspicesof the Ohio peace officer training council and who isappointed as a peace officer in Ohio may request credit forthat portion of the basic training course described in this rulewhich is equal to that previously completed. Training or edu-cation which will be accepted would include, but is not limitedto, that training or education certified by another state,another government agency, military service, the state highwaypatrol, a college, university or other educational institution.

(2) The applicant shall provide to the executive directordocumented evidence of the training. The executive directorshall review the record of the prior training or education andmake a determination of the training or education that shall berequired and that prior training or education for which creditwill be given.

(3) The applicant may request a hearing by the council onthe ruling by the executive director relative to any additionaltraining. Said hearing shall be held in accordance with theprovisions of sections 119.01 to 119.13 of the Revised Code.

(H) Every person who has been re-appointed as a peaceofficer shall cease performingthe functions of a peace officeror from carrying a weapon unless he has received, within oneyear from the date of his re-appointment, a certificate fromthe executive director attesting to his satisfactory completionof the above training requirements.

(1) The executive director may extend the time for comple-tion of the training requirements based upon written applica-tion from the individual and the appointing authority of theindividual. Such application will contain an explanation of thecircumstances which create the need for the extension. Factorswhich may be considered in granting or denying the extensioninclude, but are not limited to, serious illness of the individualor an imtriediate family member, the absence of a reasonablyaccessible training course, or an unreasonable shortage ofmanpower within the employing agency. The extension shallgenerally be for ninety days, but in no event may the executivedirector grant an extension beyond one hundred eighty days.

(2) Should the executive director deny the request for anextension, he shall notify the individual in writing, with a copyto the appointing authority, and shall send this notice by certi-fied mail, return receipt requested, not later than the business

59 Peace Officers Basic Training Program 109:2-1-16

day next succeeding such order. Such notice shall state thereasons for the executive director's action, cite the law or ruledirectly involved, and state that the party will be afforded ahearing if he requests it within thirty days of the time of

mailing the notice. A copy of such notice shall be mailed toattorneys or other representatives of record representing the

party.Whenever a party requests a hearing in accordance with

this paragraph and section 119.06 of the Revised Code, councilshall immediately set the date, time, and place for suchhearingand forthwith notify the party thereof. The date set for suchhearing shall be within fifteen days, but not earlier than sevendays, after the party has requested a hearing, unless otherwiseagreed to by both the council and the party.

The council shall conduct the hearing in conformance withthe provisions of sections 119.01 to 119.13 of the Revised

Code.(3) The provisions of paragraph (H) of this rule shall

- remain in effect until such time as the council makes thedetermination to grant or deny the request.

(I) This rule shall not be construed to preclude a township,county, or municipal corporation from establishing time limitsfor satisfactory completion of the basic course and re-entryrequirements of less than the maximum limits prescribed bythe council. If a township, county, or municipal corporationhas adopted timelimits less than the maximum limits pre-scribed above, such time limits shall be controlling.

HISTORY: 1993-94 OMR 156 (A), eff, 10-1-931990-91 OMR 1022 (A), eff. 3-25-91; 1990-91 OMR 179(A), eff. 8-21-90; 1987-88 OMR 575 (A-TF 109:2-1-11), eff.1-15-88; 1987-88 OMR 575 (R), eff. 1-1-88; prior PC-1-12

CROSS REFERENCES

RC 109.73, 109.74, Powers and duties; promulgation of rules by

attorney generalRC 109.75, Executive director

NOTES OF DECISIONS ANIJ OPINIONS

Retention of certificate after commission given up 1

1 Reterrtion of certificate after commission given up . . . . . , .

Pursuant to OAC 109:2-1-12, a deputy sheriff who is elected orappointed county coroner may retain his peace officer basic trainingcertificate when he suxrenders his commission as a specialdepurysheriff. OAG 98-033. ^

109:2-1-13 Appointment of committees; reports

In accordance with provisions in Section 121.22, OhioRevised Code, the chairman may call members of Council tomeet in executive session. The chairman may also appoint suchcommittees as nray be necessary to study and research anymatter affecting or pertaining to the work of the Ohio PeaceOfficer Training Council. The committee shall make writtenreports and recommendations supported by the reasons there-for to the Council, which reports shall become a permanent

record of the Council, but only those reports and recommen-dations approved and adopted shall be published.

HISTORY: Prior PC-1-13

CROSS REFERENCES

RC 109.71, Crcation of Ohio peace officer training council; mem-

bers; definitions

LIBRARY REFERENCES

Koch, Administrative Law and Practiee, Proeesses for information

services-required reports, Text 2.42

109:2-1-14 Press releases-Repealed

HISTORY: 1987-88 OMR 576 (R), eff. 1-1-88

Prior PC-1-14

109:2-1-1S Record of meetings; secretary

A seeretary of the Council shall be appointed by the chafr-man. In the ahsence of apennanent secretary, a temporarysecretary shall be appointed by the chairman. The secretary ofthe Council shall prepare a writtenrecord of the proceedingsof each meeting of the Council. A copy of the record shall befomarded to each member of the Council and the AttomeyGeneral of the State of Ohio within a reasonable time follow-

ing such meeting.

HISTORY: Prior PC-1-15

CROSS REFERENCES

RC 109.71, Creation of Ohio peace officer training council; mem-

bers; deBnitions

109:2-I-16 Explanation of the basic training course

The general content of the basic course shall be as set forthin this rule. Reasonable latitude is to be permitted in orderthat the individual instmctor may develop his particular sub-ject in his own way, and to permit the use of instructionalmethods and materials which he deems to be most appropriateand effective. Howevez, all required hours and al] studentperformance objectives for each topic in every unit must betaught. The course topic entitled cultural sensitivity must bescheduled and taught on consecutive traintng dates.

(A) Administration. Total: thirty hours.(1)lntroduction to basic training-two hours.Learning goal: The student will know the reasons for train-

ing, the academy's expectations for them, and the importanceof ethical and professional behavior in law enforcement.

(2) Role of the American peace officer-four hours.Learning goal: The student will understand the complexity

of the peace officer role in a democratic society.(3) Philosophy and principles of American criminal jus-

tice-four hours.Learrring goal: The student will understand the basic phi-

losophies and principles of American criminal justice.(4) The criminal justice system-four hours.

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(d) The "associate of individualized study" is a degree awarded for the successful completion of anindividually planned degree program designed by a student with the assistance of a designated facultyadvisor, generally containing an area of concentration formed either by an interdisciplinarycombination of courses offered by the awarding institution, or through credits awarded by the

awarding institution for educational experiences judged by the institution to be of college level.

(e) The "associate of labor studies" is a degree awarded for the successful completion of a programwith a major emphasis in studies relating to the leadership of labor unions, designed to provide abroader understanding and perspective of economic, social, and political problems of our society andthe role which labor unions and workers should play in it, and to equip members of labor organizations

with skills needed to exercise their union and civic responsibilities.

(C) General standards for the approval of associate degree programs.

(1) Full-time faculty members and administrative personnel should be provided in numbers which will

assure:

(a) Familiarity and identification with the goals of the field of concentration.

(b) The contiriuity of the program.

(c) Continuing interchange of ideas and experience within the faculty.

(d) Adequate attention to the needs of individual students in the program.

(2) A minimum of sixty per cent of the curriculum should be taught by faculty members who devote

full time to the teaching and administrative responsibilities of the two-year campus.

(3) Persons holding top leadership responsibilities at the department level should hold either amaster's degree, or a bachelor's degree with other advanced preparation, and have experience in the

appropriate field of concentration.

(4) Faculty members whose assignments are primarily in the technical areas should evidence

competency based upon:

(a) Formal education appropriate to the specialization, usually including the bachelor's or master's

degrees or their equivalent as demonstrated by expertise, licensure, or certification; and

(b) Practical experience other than teaching in the appropriate specialization, as demonstrated by full-

time employment for approximately five years in the career area, or a related field; and

(c) Evidence of professional development in the field of concentration as demonstrated by activity inprofessional associations, consultative practice, participation in seminars, workshops, and formal

course work, and individual reading and research.

(5) Faculty members whose assignments are primarily in the teaching of the general studiescurriculum should generally hold a master's degree in the subject matter discipline, and should alsoshow evidence of professional development as indicated in section (C)(4)(c) of this rule.

(6) For approval by the Ohio board of regents, associate degree programs must contain a minimum ofninety quarter credits or sixty semester credits and should not exceed a maximum of one hundred ten

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quarter credits or seventy-three semester credits, exclusive of physical education. Exceptions may be

granted where licensing procedures require additional hours.

(a) The academic quarter should be of eleven weeks duration with not less than ten weeks devoted to

instruction.

(b) The academic semester should be of sixteen weeks duration with not less than fifteen weeks

devoted to instruction.

(c) Academic credit awarded for successful completion of courses should be expressed in conventional

quarter or semester credit hours.

(d) Associate degree programs should not exceed seven quarters (four semesters) of full-time study.

(e) Institutions desiring to deviate from these standards, because of unique educational programs,

should obtain the concurrence of the vice chancellor for two-year campuses.

(7) Procedures for seeking approval of the Ohio board of regents to initiate a new degree or degree

program are contained in the Ohio board of regents' two-year campus operating manual.

(D) Standards for approval of the associate of arts and the associate of science degrees.

(1) These degrees are awarded for the satisfactory completion of a minimum of ninety quarter credithours of course enrollment (or equivalent semester hours).

(2) For maximum transferability to four-year institutions, the ninety credits should include as generaleducation at least nine quarter credits in English composition and literature, fifteen quarter credits inthe humanities, fifteen quarter credits in the social and behavioral sciences and fifteen quarter creditsin the natural sciences (physical and biological) and/or mathematics (or equivalent semester credit

hours).

(3) The associate of arts and the associate of science degrees may be authorized to be offered bycommunity colleges, branch campuses of state universities, state community colleges, and by stateuniversities offering a planned program leading to this degree for students who enroll in a unit of the

university which serves the two-year mission.

(E) Standards for approval of the associate of applied business and associate of applied science

degrees.

(1) Associate degree programs offered as technical education should provide as a minimum:

(a) Forty-five quarter credits or thirty semester credits of technical studies in courses clearlyidentifiable with the technical skills, proficiency, and knowledge required for career competency. Mostcourses classified as technical should include laboratory experience. Generally, technical coursesshould be distributed more or less evenly among the six or seven quarters of the degree program.

(b) Twenty-one quarter credits or fourteen semester credits in basic related studies. These coursesshould be carefully selected to serve as a base to the technical field and should be closely related to

the technical specialty.

(c) Twenty-one quarter credits or fourteen semester credits of general or non-technical studies. Thesecourses should include oral communication, written communication, social studies, and humanities.

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3333-1-08 Standards for issuance of certificates ofauthorization under section 1713.03, Ohio Revised Code.

(A) Preamble

(1) The standards established herein for the award of academic degrees and the conduct of instructioncreditable toward such degrees rest upon the fundamental conviction of the board of regents thatteaching and scholarship are the basic building blocks of that learning which academic degrees attest.Accordingly, instruction leading to degree award necessarily requires an institutional setting whichfosters both teaching and scholarship and in which faculty, financial, physical plant, and academicsupport resources are available in adequate measure to assure continuous nurture of both components

of activity.

(2) The standards established herein further rest upon the fundamental conviction of the board ofregents that the intellectual development and learning achievements of students to which academicdegrees give testimony warrant and require the undivided dedication of institutions seeking identity asdegree-granting colleges or universities. Accordingly, institutions seeking authority to award academicdegrees or to conduct instruction creditable toward such degrees shall exist for the principal purposesof teaching and scholarship and shall be so organized and governed as to pursue freely such purposes.

(B) General standards

(1) Certificates of Authorization shall be issued by the Ohio board of regents to a non-profit university,college, academy, school, or other institution, incorporated or unincorporated, which offers instructionin one or more fields such as technical education, the arts and sciences, teacher education, business

administration, engineering, philosophy, literature, fine arts, law, medicine, nursing, social work,theology, and other recognized academic and professional fields of study where there is the intentionto award for successful completion of the equivalent of four semesters or six quarters of full-time studythe associate degree in applied science, applied business, or in the arts, or credits applicable towardsuch degree; where there is the intention to award for successful completion of the equivalent of notless than eight semesters or twelve quarters of full-time study the baccalaureate degree of appropriatedesignation, or credits applicable toward such degree; where there is the intention to award forsuccessful completion of the equivalent of not less than two semesters or three quarters of full-timestudy beyond the baccalaureate, the master's degree or appropriate designation of a graduate-professional degree, or credits applicable toward such degrees; and where there is the intention toaward for successful completion of the equivalent of not less than six semesters or nine quarters of full-time study and research beyond the baccalaureate, the doctor of philosophy or other doctoral degree,

or credits applicable toward such degrees.

(2) Applications for a Certificate of Authorization shall be submitted to the chancellor of the Ohio boardof regents in accordance with forms or an outline of specifications as prepared by him. The applicationshall include a sworn statement of authenticity and truthfulness signed by the appropriate officer of the

institution or educational corporation.

(3) If the applicant is an educational corporation, the applicant shall provide the Ohio board of regentswith an authenticated copy of its articles of incorporation as filed in the office of the secretary of stateof Ohio. The applicant shall provide a list of the names and addresses of the current board of trustees

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and of the principal administrative officers, such as president or director, vice presidents, deans, and

business manager.

(4) If the applicant is an unincorporatedinstitution, the applicant shall provide the Ohio board ofregents with the by-laws or other evidence of the operating rules of the institution and with the names

and addresses of the principal officials of the institution.

(5) The applicant shall certify that the incorporated or unincorporated institution represents an

organization established for the principal purposes of teaching and scholarship and that the institutionis not, through its stated purposes, its financial resources, the make-up of its governing board oradministrative staff, or otherwise, effectively subservient to any organization or group of personsprincipally dedicated to purposes other than teaching and scholarship. This provision shall not prohibitthe support of degree programs by duly constituted religious bodies otherwise meeting the standards

set out herein.

(6) The application shall clearly indicate the name of the institution or educational corporation and thedesignation of the degree or degrees which the applicant proposes to offer. The name of the institution

shall clearly indicate the nature of the academic program offered, such as:

(a) Institute or college for a program of not less than the equivalent offiour semesters or six quarters

of course instruction and for award of the associate degree.

(b) College for a program of not less than the equivalent of eight semesters or twelve quarters ofcourse instruction and for award of the baccalaureate in arts and sciences and in not more than two

professional fields of study.

(c) University for a program of not less than the equivalent of eight semesters or twelve quarters ofcourse instruction and for award of a baccalaureate in arts and sciences and in three or moreprofessional fields of study, for a program of not less than the equivalent of two semesters or threequarters of course instruction and for award of the master's degree, for a program of not less than theequivalent of four semesters or six quarters of course instruction and for award of the doctor's degree,and for a program of not less than the equivalent of four semesters or six quarters of course

instruction and for award of a graduate-professional degree.

(d) School, college, or seminary for a program of not less than four semesters or six quarters of course

instruction and for award of a graduate-professional degree.

(7) As a general practice, it will be the intention of the board of regents to list on the face of

Certificates of Authorization all degree titles authorized to be awarded.

(a) Authorization will ordinarily be granted for the general use of such undergraduate degrees as theassociate of arts, bachelor of arts, and bachelor of science for a full range of individual programs ofinstruction commonly recognized by award of these general degrees. Individual approval of fields ofspecialization within such general degrees will ordinarily not be required. However, such approval ofgeneral degrees will not constitute authorization of technical education and professional programs ofinstruction for which an institution may seek to award special degrees descriptive of individual fields of.,specialization, such as the associate of applied business in data. processing, associate of appliedscience in respiratory therapy, bachelor of music, bachelor of science in nursing, bachelor of fine arts,and so forth. Resources adequate for the support of such specialized degrees shall be demonstratedseparately by applicant institutions and will be separately listed on the face of Certificates of

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Authorization. In contrast to these procedures, all degree proposals at the masters and doctoral levels,whether resulting in award of the general degrees master of arts, master of science, or doctor ofphilosophy in particular fields of specialization or of professional degrees such as the master ofbusiness administration, inaster ofsocial work, master of fine arts, doctor of education or the doctor ofbusiness administration must be authorized and will be listed separately in the issuance of Certificates

of Authorization.

(b) In all cases, however, the board of regents may in its own judgment determine that award ofgeneral degrees should be limited to specific areas of instruction in accordance with demonstratedinstitutional resources. In such cases, limitations will be noted on the face of Certificates ofAuthorization issued. Institutions seeking broader authority in the use of general degrees subsequentlymay apply for that authority by demonstrating the development of appropriate resources to support

additional fields of instruction.

(c) Notwithstanding the provisions of items (B)(7)(a) and (b), above, all individual programs ofinstruction currently operating on the effective date of this rule leading to award of previouslyapproved general degrees of institutions holding Certificates of Authorization shall be considered to

have been approved for these purposes.

(d) Institutions holding Certificates of Authorization and seeking additional degrees, may submitabbreviated application materials responding appropriately to sections ( B)(6), (8), (9), and the several

standards within section (B)(10), as those items relate to the additional degrees proposed to be

awarded.

(8) In order to be considered for the Certificate of Authorization an applicant shall indicate that aperiod of academic planning has preceded the filing of said application, that educational consultants

with appropriate educational qualifications have been retained in the development and evaluation ofacademic plans, and that applicant has consulted with the North Central Association of Colleges andSecondary Schools and where appropriate with the professional accrediting agency appropriate to the

fields of study to be offered.

(9) In order to be considered for the Certificate of Authorization an applicant shall indicate its intentionto qualify for regional and where appropriate professional accreditation within a reasonable period oftime, not more than six years after the proposed date of initial instruction, and shall offer evidence ofits current status as regards accreditation and of its efforts, plans, and timetables for achieving finalaccreditation. An applicant already possessing such accreditation shall be deemed to have met thisrequirement. This requirement may be waived in the instance of a seminary of theology where an

appropriate professional accrediting organization is not in existence.

(10) In order to be considered for the Certificate of Authorization an applicant shall offer evidence ofacademic, fiscal, and other qualifications to support instruction and scholarship in accordance with the

following minimum standards of current operating endeavor:

(a) Purposes of the institution

The educational mission of the institution must be clearly stated, including the types of instructionalprograms likely to be undertaken, the need for such service perceived by the sponsors, the clienteleintended to be served, such uniqueness of programming or educational philosophy as may be inherentin the proposed degree programs, and the educational and administrative procedures according to

which instructional services will be available to students.

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Implementing procedures:

(i) The sponsoring institution shall submit a copy of its general catalogue as a part of its application

materials.

(ii) The sponsoring institution is urged to submit as a part of its application materials a copy of suchself-study materials as may have been prepared for accreditation agencies from which approval has

been sought or received.

(b) Academic control

The design, conduct and evaluation of all instructional activities must be carried out within carefullyoutlined faculty and administrative control procedures, and clear provision must have been made forassuring a high level of academic performance of faculty and students.

Implementing procedures:

(i) The sponsoring institution must describe the role of faculty members in the design, conduct and

evaluation of instructional activities.

(ii) The sponsoring institution must describe the provisions which have been made and which are

operative for control of: -

(a ) Recruitment and counseling of students

(b ) Admission of students to courses and to the institution's degree programs

(c ) Course content and the conduct of instruction

(d ) Evaluation of student performance

(e ) Academic recordkeeping

(f ) Appointment and evaluation of faculty

(c) Curriculum

The curriculum in whole and in its parts shall contain the essential components peculiar to thediscipline it represents, as generally accepted by scholars in that discipline, and the courses takentogether shall lead to a coherent and recognizable program goal.

Implementing procedures:

(i) The institution must demonstrate the relationship of each course offering to the degree programs

for which it is creditable.

(ii) The institution must demonstrate that individual courses are clearly recognizable as appropriate tothe level of education which they support (associate degree, baccalaureate, master's level, etc.).

(iii) The institution must offer evidence that a reasonable prospect exists that credits will be acceptedfor transfer by other well-established institutions of higher education wherever such transfer wouldordinarily occur within generally prevailing practice.

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(iv) The institution must furnish to the board of regents a copy of its most recent bulletin describing

academic programs and the content of individual courses of instruction.

(d) Faculty

Faculty persons must be fully competent to undertake the level of instruction to which assigned andshall possess academic preparation and experience, including professional practice, appropriate to thefields of knowledge taught. Faculty persons shall be available in numbers sufficient and individuallyshall dedicate portions of their professional energies appropriate to the level of instruction undertaken,to assure sufficient curricular oversight and student evaluation, and to sustain an on-going body ofscholarship appropriate to the teaching services rendered.

Implementing procedures:

(i) The institution must demonstrate that the academic preparation and scholarly and professionalpractice experience of faculty members are appropriate to the fields of knowledge within which each

faculty member teaches.

(ii) The institution must demonstrate that its standards of faculty preparation are appropriate to thelevel of instruction to which individual members are assigned (generallya doctoral degree or itsequivalent for graduate-level teaching, a master's degree or its equivalent for undergraduate teaching,a baccalaureate or its equivalent plus professional experience for technical education teaching, etc.).

(iii) The institution must demonstrate that faculty members have appropriate experience in teaching atthe level of education to which they are assigned, and that they are engaged through scholarly andprofessional activities in a continuing refreshment of their academic competence.

(iv) The institution must demonstrate the presence of full-time faculty persons sufficient to cover thevarious fields of study encompassed within the proposed curricula, to assure an on-going dedication toscholarship underlying the instructional program, and to assure a collective faculty responsibility for

continuing curricular review and assessment of overall student progress.

(v) The institution must demonstrate the adequacy of procedures by which the colleagueship of full-and part-time faculty members is assured in the sustaining of scholarship underlying the curricular

program, in continuing curricular review, and in the assessment of overall student progress.

(vi) In regard to undergraduate degree offerings an instructional staff shall be provided in a ratio of

not more than thirty full-time equivalent students to one full-time equivalent faculty member.

(e) Supporting services

Supporting resources and academic services shall be adequate to assuring a suitable learningenvironment for students and a stable institutional setting capable of continued satisfactory service to

students.

Implementing procedures:

(i) The institution must demonstrate dependable sources and amounts of income adequate to fulfillingthe planned purposes of the proposed degree programs over time, making possible the avoidance ofundue reliance upon contributed services, and shall provide to the board of regents a general plan of

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expenditures capable within the confines of available income of conducting all programs on a full cost

basis during a threeyear operational period.

(ii) The institution must provide physical plant resources adequate for classroom, laboratory, library,administrative, and student service programs appropriate to the conduct of all proposed degree

instruction and scholarship.

(iii) The institution must demonstrate that satisfactory support in the form of library resources,laboratory and clinical experiences, and instructionai supplies and equipment is at hand sufficient tosustain all degree programs. Arrangements shall be made for a library to provide not less than 5,000volumes for a two-year program of study, of not less than 15,000 volumes for a four-year program ofstudy, and of such size and quality as required by graduate programs of study.

(iv) The institution must demonstrate that satisfactory provision has been made for guidance andcounseling services for students, for evaluation of student performance, for continuous monitoring ofthe progress of students toward their degree goals, and for appropriate academic recordkeeping.

(f) General operations

All institutional operations must be conducted in a manner consistent with high standards of ethical

business practice.

(g) Accreditation

Evidence must be presented to the board of regents, and from time to time be updated, concerning the

accreditation status of the institution.

(h) Visitation examination

Each institution seeking certification may be examined by representatives of the board of regents forthe purpose of assessing the institution's fulfiliment of these standards. The sponsoring institutionmust bear the reasonable costs of such visitation for the purpose of examining its programming.Wherever practicable, the board of regents will attempt to rely upon reports and site examinationsmade by regional accrediting associations to avoid duplicative and burdensome review processes.

(11) In addition to meeting the above standards, institutions whose instructional activities willencompass substantial components of teaching at locations removed from their permanent campuses,including major reliance on clinical and work-study experience or reliance upon nontraditional learningmethods and environments removed from their permanent campuses, shall provide such services in

accordance with standards set out in section (C) below.

(12) In the event that a newly established institution is unable during a developmental period to meeta particular standard or other requirement set out herein or in section (C), the board of regents, uponrequest of the institution, may in its own judgment waive such requirement for certification, subject toagreement upon a specific time schedule for full compliance with such standard. In the event that anapplicant perceives that some uniqueness of program design or purpose makes inappropriate aparticular standard or other requirement set out herein or in section (C), the applicant may offersupplementary testimony concerning such contention, and the boardof regents may in its ownjudgment waive such requirement if it determines that the essential purpose of the requirement has

been met.

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(13) In order to be considered for a Certificate of Authorization, an applicant shall agree, upon requestof the board of regents, to submit an annual report each year within a reasonable length of time afterJune 30 indicating the extent of continued compliance with the standards set out herein and in section

(C)•

(14) In order to be considered for a Certificate of Authorization, an applicant shall agree to permit arepresentative of the Ohio board of regents to inspect the records of the institution or educational

corporation to verify the data provided in the annual report.

(15) The Ohio board of regents reserves the right to institute proceedings for the revocation or

modification of a Certificate of Authorization under one of the two following conditions:

(a) Failure of an institution or educational corporation to maintain the minimum standards specified in

paragraph (B)(10) above, and, if applicable, section (C), below.

(b) Failure of an institution or educational corporation to obtain and retain regional accreditation andwhere appropriate accreditation by an appropriate professional accrediting agency within six years ofinitial offering of instruction or within three years after suspension or withdrawal of such accreditation.

(16) Upon determination by the Ohio board of regents that ah applicant institution is entitled to aCertificate of Authorization, an appropriate certificate attesting this action by the board shall be issuedto the applicant institution by the chancellor and a copy of said certificate shall be filed with the

secretary of state of the state of Ohio.

(17) An institution of higher education receiving a Certificate of Authorization shall be entitled in itscatalogue and other official publications to state: "Certificate of Authorization received from Ohio Board

of Regents."

(C) Standards for off-campus instructional activity

(1) In establishing instructional programs at locations removed from their permanent campuses,including major reliance on clinical and work-study experiences or reliance upon nontraditional learningmethods and environments removed from their permanent campuses, colleges and universitiesproperly should assume responsibility for added efforts to assure a high quality of educationalexperience for students served. Moving as they may do outside of long-established and home-campusbased procedures for quality review and control, and in the absence at this point in time of specificaccreditation review for off-campus activities, each sponsoring college and university must be preparedto bear the burden of demonstrating that sound quality control procedures are in effect. It is purposeof these standards to describe a pattern for such demonstration for use by colleges and universities

seeking to sponsor off-campus instructional activities in Ohio.

(2) As used in these standards, "permanent campus" or "central campus" refers to the principal on-going physical campus traditionally recognized in American higher education as the permanent seat ofan institution's instructional program, including its substantial and varied staffs and supportingresources, and from which off-campus instruction is most often extended. Institutions which utilizegeographically dispersed arrangements for teaching and learning and which have no clearly identifiablepermanent campus must bear the added burden of demonstrating that the stability of academiccontrol, of continuing validation of credits awarded, and of supporting resources ordinarily associatedwith a permanent campus are somehow assured through its less traditional arrangements.

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(3) In seeking a Certificate of Authorization in which off-campus instruction will constitute an importantmode of operation, the applicant college or university must offer general testimony that each standardestablished below has been and will continue to• be met. Upon request of the board of regents anapplicant college or university shall offer further evidence satisfactory to the board in response to theimplementing procedures or such other procedures which may appropriately relate to compliance with

the board's standards.

(a) Purposes of off-campus activity

It must be clear that the overriding purpose of the off-campus instructional activity is to carry out aneducational mission of the sponsoring college or university. Secondary or incidental purposes such asthe generation of income beyond expenses incurred and the fostering of improved public relations

must not predominate as purposes for off-campus programming.

Implementing procedures:

(i) The sponsoring institution must offer evidence that off-campus instruction in general is clearlyrelated to the educational goals and objectives of the institution as they existed when the most recentaccreditation review was made, or that established procedures for modification of such goals have

been followed and that accreditation review has been sought.

(ii) The sponsoring institution must demonstrate the clear relationship of individual off-campus

instructional offerings to the larger educational goals and objectives of the institution.

(b) Academic control

The design, conduct, and evaluation of all off-campus instructional activities must be under the directand continuous control of the sponsoring institution's established process for academic planning and

quality maintenance.

Implementing procedures:

(i) The sponsoring institution must offer evidence that the off-campus programming operates in a clearand effective way under the continuous academic control of the central institution.

(ii) The sponsoring institution must clearly define the relationship of off-campus coordinators,

supervisors, and administrative personnel, to the central academic control processes.

(iii) The sponsoring institution must clearly define the provisions which have been made and which are

operative for control of off-campus activities involving:

(a ) Recruitment and counseling of students

(b ) Admission of students to courses and to the sponsoring institution's degree programs

(c ) Course content and the conduct of instruction

(d ) Evaluation of student performance

(e ) Academic recordkeeping

(f ) Appointment and evaluation of faculty

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(c) Curriculum

All off-campus teaching and the credits awarded in such instructional activity must bear a clear

relationship to the degree programs of the sponsoring institution.

Implementing procedures:

(i) The sponsoring institution must demonstrate the relationship of each off-campus course offering to

the degree programs for which it is creditable.

(ii) The sponsoring institution must demonstrate that well-developed course syllabi and instructionalguides have been developed and reviewed by established academic control authorities.

(iii) The sponsoring institution must demonstrate that appropriate procedures have been developedand are operative for student examination and evaluation, and that systematic monitoring is conducted

to protect the integrity of the grading process.

(iv) The sponsoring institution must demonstrate that an effective process is operative to validate the

equivalency of off-campus instruction to the instruction conducted on the central campus.

(v) The sponsoring institution must offer evidence that course enrollments off-campus require a levelof sophistication on the part of students consistent with the level of education undertaken.

(vi) The sponsoring institution must offer evidence that appropriate exit criteria have been establishedfor determining successful completion of course work and degree programs organized off-campus.

(vii) The sponsoring institution must offer evidence that a reasonable prospect exists that creditsearned in off-campus instructional programs will be accepted for transfer by other well-established

institutions of higher education.

(d) Faculty

Faculty persons assigned to off-campus instruction must be fully competent to undertake the level ofinstruction offered and must be selected and evaluated according to standards compatible with central

campus instructional expectations.

Implementing procedures:

(i) The sponsoring institution must demonstrate that off-campus faculty members are recruited and

their credentials reviewed in a manner consistent with central campus academic controls.

(ii) The sponsoring institution must demonstrate that the standards of faculty preparation required of

off-campus instructors are comparable to those enforced on the central campus.

(iii) The sponsoring institution must demonstrate arrangements which have been made for assuringproductive relationships between on-campus and off-campus faculty persons, consistent with theirneed to strive for comparable results within the degree programs for which they are responsible.

(e) Supporting services

Special efforts must be made to assure that an adequate array of supporting services is at hand and

operable to support a high quality of off-campus instruction.

http://codes.ohio.gov/oac/3333-1-08 11/24/2010

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Implementing procedures:

(i) Student services

The sponsoring institution must demonstrate that on-going provision has been made for guidance andcounseling services for students, for assuring student participation sufficient to promote success on thepart of individual students, and for continuous monitoring of the progress of students toward their

degree goals.

(ii) Library and laboratories

The sponsoring institution must demonstrate that satisfactory support in the form of library resources,laboratory and clinical experiences, instructional supplies and equipment and classroom facilities is at

hand sufficient to sustain the off-campus instructional program.

(f) General operations

The offering of off-campus programming must be carried out in a manner consistent with high

standards of ethical business practice.

Implementing procedures:

(i) The sponsoring institution must offer evidence that clear statements about the institution itself andits proposed services are available to all students, including a clear statement of the extent of

commitment to continuing service.

(ii) The sponsoring institution must demonstrate and maintain a policy of clear and truthful advertising

about its services.

(iii) The sponsoring institution must demonstrate a clear, well-publicized, and reasonable policy of

tuition charges and refunds.

(iv) The sponsoring institution must demonstrate consistently high standards of business ethics in all of

its relations with students and the general public.

(g) Accreditation

It must be clear that the sponsoring institution has sought and achieved appropriate accreditation forits central campus programming and that it has sought such accreditation as may be available to it forthe specific off-campus programming sought to be offered. All institutions are urged to seek and tosecure full accreditation from appropriate regional and where appropriate professional accreditingassociations within whose jurisdiction they fall before commencing off-campus services in Ohio.Institutions headquartered in states other than Ohio must receive such degree approvals or licenses as

may be required by their home states prior to commencing services in Ohio.

Implementing procedures:

(i) The sponsoring institution must provide evidence of its current status so far as institutional

accreditation and pertinent professional accreditation is concerned.

(ii) The sponsoring institution must provide evidence of its current accreditation status so far as its off-campus activities are concerned, including a report of its current efforts to achieve such accreditation.

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(iii) The sponsoring institution must provide evidence of all required certifications by the statedepartment of education for its programs in teacher education, including a status report of off-campusprogramming within such general approvals as have been received for central campus programs.

(iv) Institutions headquartered in states other than Ohio must provide evidence that they have secured

all degree approvals and licenses required by their home states.

(h) Visitation examination

Each institution conducting off-campus instruction may be examined by a panel of visitors representingthe board of regents for the purpose of assessing the institution's fulfillment of these standards.

Wherever practicable, the board of regents will attempt to rely upon the reports and site examinationsmade by regional accrediting associations to avoid duplicative and burdensome review processes.

Implementing procedures:

(i) The sponsoring institution must make appropriate preparation for such visitation as may beproposed by the Ohio board of regents, responding to specific requests from the chairman of the panel

of visitors.

(ii) The sponsoring institution must bear the reasonable costs of such visitation for the purpose of

examining its off-campus programming.

(i) Contracts with cooperating institutions and students

Wherever off-campus offerings involve cooperating public or private institutions, educational orotherwise, and wherever off-campus offerings involve well-identified pilot student groups, it is the

sponsoring college or university's responsibility to assure that all parties understand their rights and

obligations within the off-campus program of instruction.

Implementing procedures:

(i) The sponsoring institution must assure that clear agreements exist with cooperating institutions andthat the appropriate responsible officers of those institutions have entered into the agreements.

(ii) The sponsoring institution must demonstrate that clear understanding exists with cooperatinginstitutions so far as services to be rendered and the cooperating institutions' obligations of supportare concerned. Clear agreement must exist on sharing of costs, availability of facilities, schedules of

student charges, period and renewal of the agreement, etc.

(iii) The sponsoring institution must demonstrate that in all such agreements with cooperating

institutions, clear academic control is retained by the credit-granting institution.

(iv) The sponsoring institution must demonstrate the extent of its commitment for continuing serviceto students and cooperating institutions, and must offer evidence of its notification to students of the

extent of such continuing commitment.

Replaces rule 3333-1-08; Eff (Amended) 6-1-75; 4-28-77

Rule promulgated under: RC 111.15

Rule amplifies: RC 1713.03

http://codes.ohio.gov/oac/3333-1-08 11/24/2010

JUDGMENT Rule 56

tion of afinding is

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esented inim, cross-

claim, or third-party claim, and whether arising out ofthe same or separate transactions, or when multipleparties are involved, the court may enter final judg-ment as to one or more but fewer than all of theclaims or parties only upon an express determinationthat there is no just reason for delay. In the absenceof a determination that there is no just reason fordelay, any order or other form of decision, howeverdesignated, which adjudicates fewer than all theclaims or the rights and liabilities of fewer than all theparties, shall not terminate the action as to any of theclaims or parties, and the order or other form ofdecision is subject to revision at any time before theentry of judgment adjudicating all the claims and therights and liabilities of all the parties.

(C) Demand for judgment

A judgment by default shall not be different in kindfrom or exceed in amount that prayed fpr in thedemand for judgment. Except as to a party againstwhom a judgment is entered by default, every finaljudgment shall grant the relief to which the party inwhose favor it is rendered is entitled, even if the partyhas not demanded the relief in the pleadings.

(D) CostsExcept when express provision therefor is made

either in a statute or in these rules, costs shall beallowed to the prevailing party unless the court other-wise directs.(Adop d eff. 7-1-70; amended eff. 7-1-89, 7-1-92, 7-1-94,7-1-90

Civ R 55 Default

(A) Entry of judgmentWhen a party against whom a judgment for affu7na-

tive relief is sought has failed to plead or otherwisedefend as provided by these rules, the party entitledto a judgment by default shall apply in writing ororally to the court therefor; but no judgment bydefault shall be entered against a minor or an incom-petent person unless represented in the action by aguardian or other such representative who has ap-peared therein. If the party against whom judgmentby default is sought has appeared in the action, he (or,if appearing by representative, his representative)shall be served with written notice of the applicationfor judgment at least seven days prior to the hearingon such application. If,in order to enable the court toenter judgment or to carry it into effect, it is neces-sary to take an account or to determine the amount ofdamages or to establish the truth of any averment byevidence or to make an investigation of any othermatter; the court may conduct such hearings or ordersuch references as it deems necessary and proper andshall when applicable accord a right of trial by jury tothe parties.

(B) Setting aside default judgment

If a judgment by default has been entered, thecourt may set it aside in accordance with Rule 60(B).

(C) Plaintiffs, counterclaimants, cross-claimants

The provisions of this rule apply whether the partyentitled to the judgment by default is a plaintiff, athird-party plaintiff or a party who has pleaded across-claim or counterclaim. In all cases a judgmentby default is subject to the limitations of Rule 54(C).

(D) Judgment against this state

No judgment by default shall be entered against

this state, a political subdivision, or officer in hisrepresentative capacity or agency of either unless theclaimant establishes his claim or right to relief byevidence satisfactory tothe court.

(Adopted eff. 7-1-70; amended eff. 7-1-71)

Civ R 56 Summary judgment

(A) Forparty seeking affirmative relief

A party seeking to recover upon a claim, counter-claim, or cross-claim or to obtain a declaratory judg-ment may move with or without supporting affidavitsfor a summary judgment in the party's favor as to allor any part of the claim, counterclaim, cross-claim, ordeclaratory judgment action. A party may move forsummary judgment at any time after the expiration ofthe time permitted under these rules for a responsivemotion or pleading by the adverse party, or afterservice of a motion for summary judgment by theadverse party. If the action has been set for pretrialor trial, a motion for summary judgment may be madeonly with leave of court.

(B) For defending party

A party against whom a claim, counterclaim, orcross-claim is asserted or a declaratory judgment issought may, at any time, move with or without sup-porting affidavits for a summary judgment in theparty's favor as to all or any part of the claim,counterclaim, cross-claim, or declaratory judgment ac-tion. If the action has been set for pretrial or trial, amotion for summary judgment may be made only withleave of court.

(C) Motion and proceedings

The motion shall be served at least fourteen daysbefore the time fixed for hearing. The adverse party,prior to the day of hearing, may serve and file oppos-ing affidavits. Summary judgment shall be renderedforthwith if the pleadings, depositions, answers tointerrogatories, written admissions, affidavits, tran-scripts of evidence, and written stipulations of fact, ifany, timely filed in the action, show that there is nogenuine issue as to any material fact and that themoving party is entitled to judgment as a matter oflaw. No evidence or stipulation may be consideredexcept as stated in this rule. A summary judgmentshall not be rendered unless it appears from the

59A-74

Rule 56 RULES OF CIVIL PROCEDURE

evidence or stipulation, and only from the evidence orstipulation, that reasonable minds can come to but oneconclusion and that conclusion is adverse to the partyagainst whoin the motion foi- summaryjudginent ismade, that party being entitled to have the evidenceor stipulation construed most strongly in the party'sfavor. A summary judgment, interlocutory in charac-ter, may be rendered on the issue of liability alonealthough there is a genuine issue as to the amount ofdamages.

(D) Case not fully adjudicated upon motion

If on motion under this rule summary judgment isnot rendered upon the whole case or foi- all the reliefasked and a trial is necessary, the court in decidingthe motion, shall examine the evidence or stipulationproperly before it, and shall if practieable, ascertainwhat material facts exist without controversy andwhat material facts are actually and in good faithpontroverted_ The eourx,,shall„ thereuponmmalie.anorder on its journal specifying 'the facts that arewithout controversy, including the extent to which theamount of damages or other relief is not in controver-sy, and directing such further proceedings in theaction as are just. Upon the trial of the action thefacts so specified shall be deemed established, and thetrial shall be conducted accordingly.

(E) Form of affidavits; further testimony; defenserequired '

Supporting and opposing affidavits shall be made onpersonal knowledge, shall set forth such facts as wouldbe admissible in evidence, and shall show affirmativelythat the affiant is competent to testify to the mattersstated in the affidavit. Sworn or certified copies of allpapers or parts of papers referred to in an affidavitshall be attached to or served with the affidavit. Thecourt may permit affidavits to be supplemented oropposed by depositions or by further affidavits.When a motion for summary judgment is made andsupported as provided in this rule, an adverse partymay not rest upon the mere allegations or denials ofthe party's pleadings, but the party's response, byaffidavit or as otherwise provided in this rule, mustset forth specific facts showing that there is a genuineissue for trial. If the party does not so respond,summary judgment, if appropriate, shall be euteredagainst the party.

(F) When affidavits unavailable

Should it appear from the affidavits of a partyopposing the motion for summary judgment that theparty cannot for sufficient reasons stated present byaffidavit facts essential to justify the party's opposi-tion, the court may refuse the application for judg-ment or may order a continuance to permit affidavitsto be obtained or discovery to be had or may makesuch other order as is just.

Should it appear to the satisfaction of the court atany time that any of the affidavits presentedpursuantto this rule are presented in bad faith or solely for thepurpose of delay, the court shall forthwith order theparty employing them to pay to the other party theamount of the reasonable expenses which the filing ofthe affidavits caused the other party to incur, includ-ing reasonable attorney's fees, and any offending par_ty or attorney may be adjudged guilty of contempt.

(Adopted eff. 7-1-70; amended eff. 7-1-76, 7-1-97, 7-1-99)

Civ R 57 Declaratory judgments

The procedure for obtaining a declaratory judgmentpui-suant to Sections 2721.01 to 2721.15, inclusive, ofthe Revised Code, shall be in accordance with thesexules. The existence of another adequate remedydoes not preclude a judgment for declaratory relief incases where it is appropriate. The court may advanceon the trial list the hearing of an action for a declara-tory judgment.

(Adopted eff. 7-1-70)

Civ R 58 Entry of judgment

(A) Preparation; entry; effect Y

Subject to the provisions of Rule 54(B), upon ageneral verdict of a jury, upon a decision announced,or upon the determination of a periodic payment plan,the court shall promptly cause the judgment to beprepared and, the court having signed it, the clerkshall thereupon enter it upon the journal. A judg-ment is effective only when entered by the clerk uponthe journal.

(B) Notice of filing

When the court signs a judgment, the court shallendorse thereon a direction to the clerk to serve uponall parties not in default for failure to appear notice ofthe judgment and its date of entry upon the journal.Within three days of entering the judgment upon thejournal, the clerk shall serve the parties in a mannerprescribed by Civ. R. 5(B) and note the service in theappearance docket. Upon serving the notice and no-tation of the service in the appearance docket, theservice is complete. The failure of the clerk to servenotice does not affect the validity of the judgment orthe running of the time for appeal except as providedin App. R. 4(A).

(C) Costs

Entry of the judgment shall not be delayed for thetaxing of costs.

(Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-89)

Civ R 59 New trials

(G) Affidavits made in bad faith (A) Grounds