ORIGINAL

IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel DENNIS J. VARNAU, Plaintiff/Appellee,
vs. DWAYNE WENNINGER,

SUPREME CT. CASE NO. 10-1655

On Appeal from the Brown County Court of Appeals, Twelfth Appellate District Court of Appeals

Defendant/Appellant.

Case No. CA 2009-02-10

MERIT BRIEF OF

APPELLANT STATE OF OHIO ex rel DENNIS J. VARNAU

Thomas G. Eagle (0034492) (COUNSEL OF RECORD) THOMAS G. EAGLE CO., L.P.A.

3386 N. State Rt. 123 Lebanon, Ohio 45036 Phone: (937) 743-2545 Fax: (937) 704-9826
Email: eaglelawoffice@cs.com

COUNSEL FOR APPELLANT, STATE OF OHIO ex rel DENNIS J. VARNAU Patrick L. Gregory (#0001147) 717 W. Plane Bethel, Ohio 45106 Phone: (513) 734-0950 Fax (513) 734-0958 COUNSEL FOR APPELLEE, DWAYNE WENNINGER Gary A. Rosenhoffer (#0003276) 302 E. Main St. Batavia, Ohio 45103 Phone: (513) 732-0300 Fax (513) 732-0648 COUNSEL FOR APPELLEE, DWAYNE WENNINGER
THOMAS G. EAGLE CO., L.P.A.
3386 N. State At. 123 Lebanon, Ohio 45036 Phone (937) 743-2545 Fax (937) 704-9826

NOV 3 ^J 2^11
CLERK OF T^ ^R-'

TABLE OF CONTENTS
Pae 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 quo warranto action based on an unproven and disputed presumption in favor of a moving party that a board of elections conducted an 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 does not establish the candidate's legal qualifications for the office that is binding in a later action in quo warranto to challenge the candidate's legal qualifications to hold the office ........................... 11 Proposition of Law No. III: Allowing action by a board of elections in placing a candidate on a ballot to preclude a candidate who had no right to protest that action or to participate in a protest from challenging the officeholder's qualifications is unconstitutional ................................. 17 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 statutory educational requirements for the office by attendance at an institution that at the time was not accredited by the Ohio Board of Regents ........................ 18 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 more years which cancels his Ohio Peace Officer Training Academy (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: AAAA Enterprises, Inc. v. River Place Community Urban Page

Redevelopment 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 of Education, 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. of

Elections (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 ^eton (1992), 65 Ohio St.3d 40 ......................................... 28 State ex rel. Snider vs. Sta l 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

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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 ..................................................................................... O.R.C. 3599.36 ............................................................. . ............................ RULES & REGULATIONS:

10, 14 21

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

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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,

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,

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

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 on an unproven and disputed presumption in favor of a moving party that a board of elections conducted 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 decadessettled 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

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 its case, [movant] bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the non-moving party's claims. The moving party cannot discharge its initial burden under Civil Rule 56 simply by making a conclusory assertion that the nonmoving party has no evidence to support the nonmong party's claims. If the moving party fails to satisfy its initial burden the motion 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

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] to present evidence to show [the truck's owner/driver's employer]. The failure to produce evidence peculiarly within the knowledge of the [defendants] is a rather eloquent fact in itself ....[I]t properly becomes the burden of the defendants to fiarnish the information as to the ownership of the truck and the employment of the driver. Were the rule otherwise it would result in defeating righteous claims resulting 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 to and attached no such findings.
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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.

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 legal qualifications for the office that is binding in a later action in quo warranto to challenge the candidate's legal qualifications to hold the office. A. Actions by a board of elections outside of a protest hearing have no preclusive 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.

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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:

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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 the nominating 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 elections authority 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 had no standing until the election, per a lower Court's prior ruling upholding the Statute disqualifying him from protesting a partisan candidate. Before the election he also could not meet the necessary elements to obtain a writ of prohibition, including that the BOE was not exercising or about 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 have resulted 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
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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 elected officeholder'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.
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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 occurrence of 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

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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 from office. 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, 411412, 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 the former 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.

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Proposition of Law No. III: Allowing action by a board of elections in placing a candidate on a ballot to preclude a candidate who had no right to protest that action or to participate in a protest from challenging 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 nonadversary 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

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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, 466467 (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 statutory educational requirements for the office by attendance at an institution that at the time was not 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

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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

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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 or more persons or things implies the exclusion of those not expressed. Bank One, N.A. v. PIC Photo Finish, Inc., 2006-Ohio-5308, 23. Typically, this maxim is applied where there is a listing of items in an associated group or series, which "justif[ies] the inference that items not mentioned 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 that he substantially met the educational requirements to become Brown County's Sheriff. However, to the Court's knowledge, there is nothing in R. C. 311.01 that permits substantial compliance, and defendant has not presented any supporting statutory 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. Monissey, 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 or the equivalent in semester or quarter hours in a college or university authorized to confer degrees by the Ohio board of regents or the comparable agency of another 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 any time during a claimed tenure, he becomes an invalid peace officer. D.Wenninger p. 11. The cases 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 a minimum of ninety quarter credits or sixty semester credits and should not exceed a maximum 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 the following minimum standards: *+* (2) "Diploma program" means a program of instruction offering technical and basic coursework. General courses may be included. The program shall generally range in length from more than six hundred but less than fifteen hundred clock hours; 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. 109:2-112(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 is irrelevant 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. ty. State, ex rel. Williamson v. Cuyahoga C_ 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 more years 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 the functions of a peace officer or to carry a weapon in connection with peace officer duties unless such person has successfully completed the basic course and 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 have been awarded a certificate of completion of basic training by the executive director 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 to performing 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 his termination 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 for the 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 Varnau 3386 N. State Rt. 123 Lebanon, Ohio 45036 Phone: (937) 743-2545 Fax: (937) 704-9826 E-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. Court of Appeals Case No. CA2009-02-1 0

SUPREME CT. CASE NO.

10-1655

On Appeal from the Twelfth District Court of Appeals, Brown County Ohio

NOTICE OF APPEAL OF APPELLANT, DENNIS J. VARNAU

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

COUNSEL FOR APPELLANT, DENNIS J. VARNAU

Patrick L. Gregory (#0001147) 717 W. Plane Bethel, Ohio 45106 Phone: (513) 734-0950 Gary A. Rosenhoffer (#0003276) 302 E. Main St.

Batavia, Ohio 45103 Phone: (513) 732-0300 COUNSEL FOR APPELLEE, DWAYNE WENNINGER,

THOMAS G. EAGLE CO., L.P.A.

3386 N. State Rt. 123 Lebanoq Obio 45036 Phone (937) 743-2545 Fax (937) 704-9826

A-1

NOTICE OF APPEAL OF APPELLANT 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 Appellant 3386 N. State Rt. 123

Lebanon, Ohio 45036 Phone: (937) 743-2545 Fax: (937) 704-9826

a Email: eaglelawofficen 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 20th day of September 2010.
THOMAS G. EAGLE CO., L.P.A.
3386 N. Stste Rt. 123 Lebanon, Ohio 45036 Phone (937) 743-2545 Fsn (937) 704-9826

Thomas G. Eagle (#0034492)

A_2

IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BROWN COUNTY

FILED STATE OF OHIO ex rel. COE!.JRTC'.3FAPPF-ALS DENNIS J. VARNAU, AUG 16 2 Q10 CASE NO. CA2009-02-010 Relator, 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 quo warranto and the parties' competing motions for summary judgment, it is the order of this court that respondent's motion for summary judgment is hereby GRANTED, relator's motion for summary judgment is DENIED, and relator's complaint for a writ of quo warranto 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,

IFiLEC^ COURT OF AP^EALS CASE NO. CA2009-02-010

AUG 1. 6 2010
- vs TiRlf, M. MERANDA

DECISION 8/16/2010

BROWN COUNTY t',LEdid( = COk1F3E'S

DWAYNE WENNINGER, Respondent.

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 of Elections challenging Wenninger's candidacy. The Board denied Varnau's protest as being untimely and for not being "filed by a member of the appropriate party." This court later affirmed the Brown County Court of Common Pleas decision dismissing Varnau's petition for a writ of mandamus seeking to compel the Board to accept his protest 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.

-2A-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 to be an Ohio sherifP' upon taking office on January 1, 2001, that this alleged deficiency caused Wenninger to have a "break in service" from January 1, 2001 to January 1, 2005, thereby disqualifying him from holding the office following the 2004 election, and that, as a result of his "break in service," he "did not possess a valid peace officer certificate" prior to the 2008 general election making his current term a mere continuation of the "illegality."

-3A-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 of Ohio'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 FILED

WUpT OF APPEALS
STATE OF OHIO ex rel. CASE NO. CA2009-02-010 DENNIS J. VARNAU, AU G17 ENTRY DENYING RELATOR'S Relator, OBJECTION TO AND MOTION TO -yNA K M_HANTRIKE RESPONDENT'S MATERIAL IN vs. BROWN Couf.rt`V CLEw oF W-UPRORT OF PARTIAL REPLY TO : RELATOR'S MOTION FOR SUMMARY DWAYNE 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, establish Justice, insure domestic Tranquility, provide for the conunon defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain 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 Year by the People of the several States, and the Electors in each State shall have the Qualifications 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 five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. (Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number offree Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons) (The previous sentence in parentheses was modified by the 14th Amendment, section 2.) The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof 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 Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer 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, suppress Insurrections and repel Invasions; . . To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Govemment of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And , To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the 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 shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand 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 Cases of 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 or Enumeration herein before directed to be taken) ( Section in parentheses clarified by the 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 of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State. Section 10 - Powers prohibited of States No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any hnposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and hnposts, laid by any State on hnports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be 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 another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent 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. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transniit sealed to 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 of Representatives, 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, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the VicePresident, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to 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 whereof the party shall have been duly convicted, shall exist within the United States, or any place subject 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 jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of 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 equal protection of the laws. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding hidians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens 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 proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. 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 debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, 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 the United States or by any State on account of race, color, or previous condition of servitude. 2. The Congress shall have power to enforce this article by appropriate legislation.

PREAMBLE

PREAMBLE

We, the people of the State of Ohio, grateful to Ahnighty God for our freedom, to secure its blessings and promote our common welfare, do establish this Constitution.

rendering of a verdict by the concurrence of not less than three-fourths of the jury. (185 1, am. 1912)
SLAVERFAND INVOLUNTARY SERVITUDE.

6 There shall be no slavery in this state; nor involuntary servitude, unless for the punishment of crime. (1851)
RIGHTS OF CONSCIENCE; EDUCATION THE NECESSITY OF

ARTICLE I: BILL OF RIGRTS

INALIENABLE RIGHTS. 1 All men are, by nature, free and independent, and

REIJGIONAND KNOWLEDGE.

have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety. (1851)
RIGHT TO ALTER, REFORM, OR ABOLISH GOVERNMENT, AND REPEAL SPECIAL PRIVILEGES.

2 All political power is inherent in the people. Govemment is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the General Assembly. (1851)
RIGHT TO A.S.SEMBLE.

7 All men have a natural and indefeasible right to worship Ahnighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given; by law, to any religious society; nor shall any interference with the rights of conscience be permitted. No religious test shall be required, as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious belief, but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality, and knowledge, however, being essential to good govemment, it shall be the duty of the General Assembly to pass suitable laws, to protect every religious denolnination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction. (1851)
WRIT OF HABEAS CORPUS.

3 The people have the rigbt to assemble together, in a peaceable manner, to consult for the common good; to instruct their representatives; and to petition the General Assembly for the redress of grievances. (1851)
$EARLFGARMSJSTANDING'ARMIES,'MLITARYPOWER.

8 The privilege of the writ of habeas corpus shall not be suspended, unless, in cases of rebellion or invasion, the public safety require it. (1851)
BAIL

4 The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power. (1851)
TRIAL BYJURY.

5 The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the

9 All persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where the proof is evident or the presumption great and except for a person who is charged with a felony where the proof is evident or the presumption great and who where the person poses a substantial risk of serious physical harm to any person or to the community. Where a person is charged with any offense for which the person may be incarcerated, the court 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 things to be seized. (1851)
No IbIPRISUNb1ENT FOR DEBT. .

iROUND WATER, PROTECT PRItATE PROPERTY RIGHTS LN (^ LAEES AND OTHER WATERCOURSES.

15 No person shall be imprisoned for debt in any civil action, on niesne or final process, unless in cases of fraud. (1851)
REDRESS FOR INJURYJ DuE PROCESS.

, 19b. (A)Theprotectionofthe rights ofOhio's property owners, the protection of Ohio's natural resources, and themaintenance of the stability of Ohio's economy require the recognition and protection of property interests in ground water, lakes, and watercourses. (B) The preservation of private property interests recognized under divisions (C) and (D)of this section shall be held inviolate, but subservient to the public welfare as provided in Section 19 of Article I of the Constitution. (C) A property owner has a property interest in the reasonable use of the ground water underlying the property owner's land. (D)An owner of riparian land has aproperty interest in the reasonable use of the water in a lake or watercourse located on or flowing through the owner's riparian land. (E) Ground water underlying privately owned land and nonnavigable waters located on or flowing through privately owned land shall not be held in trust by any governmental body. The state, and a political subdivision to the extent authorized by state law, may provide for the regulation of such waters. An owner of land voluntarily may convey to a governmental body the owner's property interest held in the ground water underlying the land or nonnavigable waters located on or flowing through the land. (F) Nothing in this section affects the application of the public trust doctrine as it applies to Lake Erie or the navigable waters of the state. (G) Nothing in Section le of Article lI, Section 36 of Article Il, Article VIII, Section 1 of Article X, Section 3 ofArticle XVIII, or Section 7 of Article XVIII of the Constitution shall impair or limit the rights established in this section. (2008)

16 All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and 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 exercised, except by the General Assembly. (1851)
25'MZNENT DONL47M

19 Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where.private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner. (1851)
DAMACES FOR WRONGFUL DEATH.

POWERS RESERVED TO THE PEOPLE

19a The amount of damages recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of another, shall not be limited by law. (1912)

20 This enumeration of rights shall not be construed to impair or deny others retained by the people, and all powers, not herein delegated, remain with the people. (1851)

THE CONSTITUTION OF THE STATE OF 01-HO 5

ARTICLE II: I.EGISLATIVE

repassed in the manner prescribed by this section for the 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.

justice according to law and evidence. No person shall be convicted without the concurrence of two-thirds of the senators. (1851)
OFFICERS LIABLE TO DMPEACHMENTJ C'ONSEQUENCES.

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. . . .

24 The governor, judges, and all state officers, may be impeached for any misdemeanor in office; but judgment shall not extend further than removal from office, and disqualification to hold any office under the authority of this state. The party impeached, whether convicted or not, shall be liable to indictment, trial, and judgment, according to law. (1851)
REPEALED. WHEN SESSIONS SHALL COMMENCE. 25

(1851,rep.19.73) (185 1, rep. 1973)

LAWS TO HAVE A UNIFORM OPERATION.

19 26 All laws, of a general nature, shall have a uniform operation throughout the state; nor, shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority than the General Assembly, except, as otherwise provided in this constitution.

TERM OF OFFICE, AND COMPENSATION OF OFFICERS IN CERTAIN CASES.

20 The General Assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers; but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished. (1851)
CONTE.STED ELECTIONS.

ELECTlONAND APPOLFEVENT OF OFFICERS; FILLING Vi1CANCIES.

21 The General Assembly shall determine, by law, before what authority, and in what manner elections shall be conducted. (1851)
l1PPROPRIATIONS. 22 No money slrall be drawn from the treasury, ex-

27 The election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution, or the constitution of the United States, shall be made in such manner as may be directed by law; but no appointing power shall be exercised by the General Assembly, except as prescribed in this constitution; 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

cept in pursuance of a specific appropriation, made by law; and no appropriation shall be made for a longer period than two years. (1851)
IMPEACIIMENTS; HOWLNSTTf7JTED AND CONDUCTED.

23 The House of Representatives shall have the sole power of impeachment, but a majority of the members elected must concur therein. Impeachments shall be tried by the Senate; and the senators, when sitting for that purpose, shall be upon oath or affirmation to do

pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to cany into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want 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

UDICIAL POWER VESTED IN COURT.

I The judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas and divisions thereof, and such other courts inferior to the Supreme Court as may from time to time be established by law. (1851, am. 1883,1912, 1968, 1973)
ORGA.I7ZATION A.ND JURISDICTION OF.SUPREME COURT.

2 (A) The Supreme Court shall, until otherwise provided by law, consist of seven judges, who shall be known as the chief justice and justices. In case of the absence or disability of the chiefjustice, thejudge having the period of longest total service upon the court shall be the acting chief justice.If any member of the court shall be unable, by reason of illness, disability or disqualification, to hear, consider and decide a cause or causes, the chief justice or the acting chief justice may direct any judge of any court of appeals to sit with the judges of the Supreme Court in the place and stead of the absent judge. A majority of the Supreme Court shall be necessary to constitute a quorum or to render ajudgment. (13)(I) The Supreme Court shall have original jurisdiction 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 relating to the practice of law. (2) The Supreme Court shall have appellatejurisdiction as follows: (a) In appeals from the courts of appeals as a matter of 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 this state. (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 of appeals as a matter of right in cases in which the death penalty has been imposed. (d) Such revisory jurisdiction of the proceedings of administrative officers or agencies as may be conferred by law; (e) In cases of public or great general interest, the Supreme Court may direct any court of appeals to certify its record to the Supreme Court, and may review and affirm, modify, or reverse the judgment of the court of appeals; (f) The Supreme Court shall review and affirm, modify, or reverse the judgment in any case certified by any court of appeals pursuant to section 3(B)(4) of this article. (3) No law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the Supreme Court. (C) The decisions in all cases in the Supreme Court shall 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 compact appellate districts in each of which there shall be a court of appeals consisting of three judges. Laws may be passed increasing the number ofjudges in any district wherein the volume of business may require such additional judge or judges. In districts having additional judges, three judges shall participate in the hearing and disposifion of each case. The court shall hold sessions in each county of the district as the necessity arises. The county commissioners of each county shall provide a proper and convenient place for the court of appeals to hold court. (13)(1) The courts of appeals shall have original jurisdiction 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 as may be provided by law to review and affirm, modify,

20 THE CONSTITUTION OF THE STATE OF OHIO

 305.03
6Cfret urpro.,pecuvv res9},matLru Enrgeircy inln9ni .aa.a^csun
Icd".dciilrl,lt-b (.ri iulf e. t ( III uitturidpoliti(J Prusrc IL2attornev -Itrsidrncv n:lutrtmeut Smi-sLiwI:ne . "1'rrxxurcr .

(:OUNTIES
Grant of power to central comtnittee of political party The provisions of R( '30.5.02, eflective Octuber 12, 1961 which anthurize the ntunbers of the centnil cvmmittee of y political p u h to fill vetc... cies occurrrn) inter uliac in the office of dvrk of conrte of a c:nmh; cunter uffcinl power upon t6e members of tbe aeuti:d eominitttw, aml this wioex:ition of povret to 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 Obia App. 2d 28Q 38 Ohio Op_ 2d 336.224 N.E.2d.3.5:3 (1967); andm State 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 requirement Tlre onlv residency requirement fitr one evho is tu be appointed to tht-olTicr of cocntv prosecntiug attmnev is thtd he be aresident of the state of Ohio firr oue veur: OAG No. 68-072 (1968). Sunshine law The convening of t7te ennutvi central etumnittee for the putpo:e of cronductingpurely inten'ial partv adf tin, nurelated to the committeei dnties of m Iking :tppointments to vacant pub&a olfrces,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 committee pursuant to BC 305.02 is a'tneeting asdefined by EC 121.22(B)(2), even wlten the number of members presentis fewerthan tbe majmity of the total ntembership. A county eenhal cwmmlttee mav dtscvss tlte appointment of a person pursuanttn its dn5es uncler RC 305.02 inesecutive session under RC 121.22(G). However, final voting on suclh appointment mustbe held in a ptb6c nteeting: OAG No. 80-083 (1980). Treasurer For the reason that there is no provision made in the lawto perrnit an appointment to be made for the purpose of filling vacancies in the office of cotmty treaswer spanning more tltxu part of one term, the cotmtvi cenfral comtnittee shall appoint someone to fill such second vaciutcc if it occttrs because of denth before 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)'9 before the end of Itis term of office, the vacattcv shall be filled pursuant to RC 305-02(A): OAG No. 69-052 (1969).

Generally I)ivis'iuns (13) tmd ( D) of RC 30,5.02 set forth the procednres by whiuh un unespired countv elective of7ice shall be tilled bv appointment: Ohlo Etbics Contmissiun Advi.vury Opinion Nu. 2000-03 (2000). 'Che officu of cvmntv conmtissionernav not be declared varant when the incnmbent is serionslv ill and nnable to fidlill the dnties of 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 dte office of an oHicer-electwhose tenn has not vetbegnu, tJte person appointed to take such office by the central coanmittee of the poli5cal party with whlclt sudi officcr-elect was affiliated sh.dl hold office until a successor is elected and quahfted, and u sucressor shall be elected at the next general election for st.rte and county officers: OAG No. 84-063 (1984) Acting officers Division (A) of RC 102.02 does not reqtrire a person who serves as an acting county officer, pursuant to RC 305,02(F), to file a financial disclosure statement: Ohio Ethics Commission Advisory Opinion No. 2000-03 (2000). llivision (F) of RC .30.5.02 provides that the countv emmnissioners may appoint a person to hold any countv elective office as an acting officer, and perform the duCies of the office between the occurrence of the vacancy and the time when the officer appointed by the central committee, pursuant to RC 305.02(B) or (ll), qualifies :md takes tlte ofHce: Obio Ethics Commission Advisory Opinion No. 2000-03 (2000). Pursuant to RC 305.02(F), where the office of coroner is vacant, the board of county cornlnissioners Inay appoint a person to serve as aetlng coroner and to perforrn the duties of the coroner between the occurrence of the vacancy and the time.when the officer appointed by the central committee qualifies and takes office: such acting eoroner need not be a resident of the countvhe serves, but mcist be properly certified to practice medicine in accordance with RC Chapter 4731.: OAG No. 90-070 (1990). Effect of prospective resignadon In the absence of an actual relinquishment of office plior to the effective date stated in a prospective resignaHon, no vacancy occtus in the office of clerk of courts by reason of the presentation of a prospective resignation ptior to the effective date thereof: 1963 OAG No. 572 (1963). Emergency intetim successors A board of county cotntnissioners has no authotity to adopt a resolution_ which designates by title, emergenev interim snecessors to cany out the func8ons of the boatd in tjte event that anv emergency situa6on exists witltinthe county or State, and two or rnore positions on the board of county commissioners become vacant or two or more comrnissioners are unavailable to pmform their dnties: OAC No. 86-083 (1986). Federal civil cights law ElecHon of a ward chairman by a political pariy's centr.d emmnittee does not constitute state action rrterely because state law reqtures tbe cornmittee to fill vacancies that occur in connty offices held by party members. When a committee engnges in interoal affairs, such as electing a wardcbeiman, distinct bom their official govermnenttd duties, they do not con6nue to act under crolor of ststte law: Banchy v. Republiean Party of Hamilton County, 898 172d 11.92 (Crtlt Cir, 1990).

305.03 Absence of county officers; office deemed vacant. (A) NVbenever any coonty officer fails to perfortn tlte dnries of office for ninety consecutive days, except in ense of sickness or injmv as provided in divisions (B) and (C) of tliis section, the of$ce shall be deerned vaeant. (B) Whenever mtv county officer is absent because of siclaress or injuty, tlte ofAce' shall eaase to be filed wit6 the board of county comntissioners a physician's certificate of the officer's siclmess or injnry. If such certifieate is not filed v,dth the board within ten days after the expirat3onof nmety consecnttive days of absence, the offiee shall be deetned vacant. (C) Whenever a connty officer files a physician's cettificate under division (B) of this section, bnt conBnues tobe absent 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 be deenied vacant.

A-19

70
tee of political party }ectivcOctober t$ 1961 e eentral cumnrittee of a g, inter alia, in the office of ollicial puwer upon the d this anue.eatiou ofpuwer ice aud i.s u cuu.stinrtional blv: Statr ex rel. lluyes V. p. 2d :314, 182 N.F; 2d 546 Iv '. 1)eMaiurilms, 9 Obin N.E?d :35:3 (1967); and in -c1 15, 67 Ol do Op 2d 33,

71

BOARD OF COUNTY COMMISSIONERS - GENERALLY

305.04

mc who ie' to lbe appuinted ''.. uevisthntlie6eare.sident ^'. ; No 68-073 (1968).

amnrlttee for the pmpose s&dcs, nnrelated to the rtments to vacant pubbc ^. RC 1.2122(13)(2). Thus, ^tlreriug: OAG No. 80-083 ic,d party is a public body purposes of RC 121.22, county central cominittee fing' as definecl by RC '. x of rnembe'.s present is rber.sltip. A oounty central it of aTerson pnrsuantto .utive session under RC uch appointment must be

083 (1980).
ision made in the law to n the purpose of filling rrer spanning more thau committee shall appoint - occvrs because of'death ections (A) and (B) of RC es more than fifteen days ie vacaney shall be filled 69-052 (1969),

(D) If at any tlnre two county comutissioners in a county are absc^rt mid have filed aphysicizms cert7ficate under division (B) of this section, the couuty coroner, in addition to performing the duties of coroner, shall serve as county eomnnxs'imier no61 at Ieast one of thr ahsent commissioners returus to ufRce or imtil the officr of at least one of the abseut connnissioners is cleemed vacaut under this sectiou aud the vac:mcy is filled- if'the coruner so requests, the coroner shall be paid a per diem rate for tlre coroners servicr as a cominissioner. Thatper (lieiii rat'e shall be the ammW salary specified by law for a connN commissioner 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 commissioner the coroner shall be considered an actiug coonty cominissioner and shall perforin the cluties ofthe officc. of countv commissioner untfl at least one of the absent commissioners returns to office or nntil the ofhice ol atleast one of the absent commissioners is deemed vacant. Before assuming the office of acting cotmty comtnissioner, the coroner slrall talcean oath of office as providecl in sections 3.22 and :3.2:3 of the Revisecl Cacle. The coroners seiviee as an acting county commissioner does not constitute the }iolding of an incompatible public office or employmeiit in violation of any statutory or cotmnon law prohibition agsonst the simultaneous holding of more than one pnblic officer or employment. The coroner sball give a new bond in the same atnourrt and signed and approved as provided in section 305.04 of the Revised Code. The bond shall be conditioned for the faithful discharge of the coroners duties asacting county commissioner and for the paytnent of any loss or damage that the county may sustain bv reason of the coroner's failure in those dnties. The bond, along with the oath of office and approval of tlre probate jadge indorsed on it, shall be deposited and paid for as provided for the bonds in section 305,04 of the Revised Code. (E) Any vacancy declared under this section slrall be filled in the manner provided by section 305.02 of the Revised Code,
(F) Thissectionslrallnotapplytoacountyofficerwhile in the active militaly setvice of the United States. HISTORY: GC 2397-1, 2397-2; 119 v 81, 1, 2; Bureau of Code Revision, 10-1-53; 141 v H 734 ( Eff 4-15-86); 147 v S 208. Eff 3-30-99.

office is then vacauC wlthout resort tu anv legal proceediug ssich as 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 (RC 305.03) (119 v 81), whenever a couuty oilicer shall bc ubsent fiom the counh- lia ninehconsecutree dms, except iu cuse oi sickueo' or iujuiv erideuced by physiclan-s cerA6ente vs thereiu reynired, his uflicr .vhall Ise deenmd vacant and the cuunty cnonnissiouers 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 vacunt wbrn t6r incwnhent is s'eriutulv ill mid unable to fidfill the duHes ufuffic" butis uot ahsent Gum the county: (de(idetl mulerfirrwer aualoguns.scctlon) OAC No 85-062 (1985). Sheriff Where a wcnne.c in the ofhcr, of s'herit7 u declured by resolutiun uf. the cvuwtv commissioners under RC g:305 (1.3, smh cac:urev sho'dd he filled bv the bu,trcl of connhcornwissioners nnder R(: 311.0:3: (decided under fornrer un:dogons sectlan) 1955 OAC; No. 5984 (1955).

` .305.04 Bond of county comrnissioners; oath of office.

Before entering upon the discltarge of Iris duties each county cominissioner shall give bond, signed by a bmrding or snrety crompany anthorized to do bnsines-s in this state, or, at Iris op8ml, by two or tnore freeholders ]raving real estate in the value of donble the atnount of the bond over and above all encvinbrances to the state, in a stnn not less than five thonsand dollars, the snrety company to be approved by the probate judge of the county, the bond cooditioned for the faithfitl discharge of the commissioners official duties, and for the payment of anv loss or dmnage that the county rnay susttin by reason of his failure in such cfuties. Such bond, with the oatlr of office and approval of the probate judge indorsed thereon, shall be deposited with the cottnty treasver and kept in his office. The expense or preniimn for sacli bond shall be paid by the board of connty commissioners and charged to the generzil firnd of the county. Stich surety may be disclrarged in the rnanner provided by secCion 2109.18 of the Revised Code 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. Eff 10-1-53.

inty officers; office r fails to perfonn the ,e days, except in case ivisions (B) and (C) of ned vacant. - is absent because of anse to be 81ed with physician's certificate sueli certificate is not after the expiration of r, the office shall be es a p}tysician's certifn, bnt continues to be S zmunencing innnediis certificate may be-

CASE NOTES AND OAG

Cross-References to Related SecHons
INDEX Constitutionalit, Generally Sheriff

Absence of cuuntv of6cers: office deemed vacant, RC 305.03 Ohio Constitution Otith of office, OConst art XV 7. ALR

Constitutionality The p-ovision of RC .305.0.3, that, whenever a coanry officer is absent frotn the county for ninety consecutive days, except in tlre case of sickness orinjnry or while being in the active militnrv service of the United States, his office shall be deemed vacant mrd the eounty commissioners shall declare a vac.tncy to exist, is a valid exercise of legislative power: (decided nnder fbnner ancJogous sectimi) State ex rel. Trag_o v. Evans, 166 Ohio St. 269, 2 Ohio Op. 2d 109, 141 N.E.2d 665 (1957), Generally . Revised Code 305.03, as amended, is, by its tenns, selfexecuting. Upon thehappening of the enumerated events, the

Public office]s bond as sabject to forfeiture for nialfeasance in office. 4 ALR2d 1348.

in, the office shall be

Blanket bond Assnning 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 a political sulbdivision who are required to file a bond, and who mav be 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 a or an offense of violenoo a crorrectional institution rtment or otherwise has lie departnent, receives unnty pursuant to section sed Code that a person ged witb an offense of at was cominitted in the nnty jail or workhouse or cnstody of the sheriff, or police or other chief lan, pal corporation pursuant ed Code that a person ged with an offense of at was cotnmitted in the I or workhouse of that ise has escaped from the oration, the prosecuting of an offense of violence at person of'the person's ubsequent apprehension, iven as soon as possible tedepartment, sheriff, or he municipal corporation Dr in pel-son, exceptthat, fails to give the notice of n's last known telephone the notice of escape in n address, the notice of ictim at his last known receipt requested.The ;iven as soon as possible and shall be given in the escape. fails to give any notice ne froln civil liability for n or property that might lure to give notice:
r 145 v H 571. Eff 10-6-94.

CHAPTER 311: SHERIFF

Section 311,01 Qualifications for sheiiffi basic training c< irse; continuing education. 31102 Bond. 311.03 Disability or absence. 311.04 Deputy sherif 'fs. 311.05 Conduct of ^ depufies. 311.06 Location of sheiiff's office. 311.07 General powers and duties of sheriff. 311,08 Exeention and retuoi of process 311.09 Indorsement on writs 311.10 Foreign execution (locket. 311.11 Cashbook. 311.12 Inspecfion of books; certiffe[I copies of entiies. 311.13 Books to be delivered to successor. 311.14 Moneys, books, and papers to be delivered to successor. 311.15 Process, goods, and prisoners to be delivered to successor.

311.16 Annual report of sherifT. 311.17 Fees.

[311.17.1] 311.171 Fees to pay costs of registering sex offenders and child-victim offenders ancl providing community noti8cation. 311.18 Mileage fees on foreign process. 311.19 Fees of appraisers. 311.20 Allowance for prisoners. 311.21 Fees in cases relating to dower, 311.22 Service of process. 311.23 Adjournment of court. 311.24 Repealed.

[SI3ERIFFS' STANDARD CAR-MARKING AND UNIFORM COMMISSIONI

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; inunioipal 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.

^d indiNldual, governmental icer or entity for failure to itially dangerous individual

311.99 Penalties.

sherifl, unless that person meets all of the following requirements: (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 the of3ice of sberiffi-for at least one year innnediately priorto the qualification date. (3) The person lias the qnalifications of an elector as specified in section 3503.01 of the Revised Code and has cotnplied with all applicable election laws. (4) The person has been awarded a high school diploina or a certificate of bigh scLool equivalence issued for achievement of specified minimnm scores on the general ednca5onal development test of the Ainerican comicil on education(5) The person has not been convicted of or pleaded guilty to a felony or any offense involving tnoral turpitude under the laws of' th9s or any other state or the United States, and has not been convicted of or pleaded guilty to an offense that is a tnisdetneanor of the first degree under the laws of this state or an offense onder the laws of any other state or the United States that carries a penalty that is snbstantially equivalent to the penalty for a misdemeanor of the first degree under the laws of this state. (6) The person has been fingerprinted and has been the subject of a search of local, state, and national fingerprint files to disclose any criminal record. Such fingelprints shall be taken under the direction of the adrninistrative judge of the court of common pleas who, prior to the applicable qualification date, shall notify the board of elections, board of county cornmissioners, or county central committee of the proper political party, as applicable, of the judge's findings. (7) The person has prepared a complete history of the person's places of residence for a period of six years itnrnediately preceding the qualification date and a complete history of the person's places of employment for a period of six years irnmediately preceding the qualification date, indicating the name and address of each employet and the period of time employed by that etnployer. The residence and employrnent histories shall he filed with the administrative judge of the court of common pleas of the county, who sliall forward them with the mdings under division (B)(6) of this section to the appropriate board of elections, board of county comtnissioners, or county central cotnrnittee of the proper political party prior to the applicable qualification date.

(8) The person tneets at least one of the following conditions:

(a) Has obtained or held, within the four-year peliod ending immediately plior to the qualifiea6on date, a valid basic peace officer certificate of trainiug issued by the Ohio peace officet- training cornmission or has been issued a certificate of training purstrant to section 5503.05 of the Revised Code, and, within the fotrr-year period ending immediately prior to the qualification date, has been employed as an appointee pursuant to section 5503.01 of the Revlsed Code or as a full-time peace officer as defined in section 109.71 of the Revised Code performing Yies

311.01 Qualifications for sheriff; basic training course; continuing education.

(A) A sheriff shall be elected quadrennially in each comrty. A slreriff sllall ]rold office for a term of four years, beginning on the first Monday of January next after the sheriff's election. (B) Except as otherwise provided in this section, no person is eligible to be a candidate for sheriff, and no person shall be elected or appointed to the office of

263

 311.01

(X)UNTIES
\zs.

related to Ilie enforcemeut nlstatntes, o'dinanees, or cudes; (b) llas obttined or beld, widiio fJie tlnee ycm period ending iimucdi dclv prior to the qnalilicat;ou eLde, a valid basic peace officcr certidicatr oitranung issued bv the Oluo peace ollicer trainin,K couunission unel has been eu;ployed foi at lea,st the last threc ts.ns prior-to the qmaldic:diuu drtc as aii;ll hme laweolo;ecmeutolhcer, as defined in division (A)(I1) of sectiou 3901.01 ufthe Revised C;ode, perlunuing dnties related to the enforceincut olst:dntes, orditnwces, or codes. 1 (9) The persmn weets at least one of the folluwing croudition.s: (;) Ilasaleanthvu,yemsofsnpeiv;cmyexperieuceusa pe mc officer .rt the rank of corporul or aaove, or has beeu appointed pnrsuant to section 5503.01 of the Revi.sed Code au(1 .se rved at the r nik of serge-ant or above, tn the hve vcm' period encling imntcdiately p'iar to the cpialificati<m date; (b) H:is annpleted satisftctorily at Icacst two yeo.rs of post semndary education or the equivalent in semester or quarter honrs in a college or universihy authorizecl to confer degrees bv the Obio board of regents or the coinparable agency ofanother state in which the college or university is located or in a school that holds a certificate of registratiou issued by the state board of crvee.r colleges and 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) of this sectlon, may take all actlons otherwise necessmy to comply with division (B) of this section. If, on the applicable qnalif'icmtion date, no person has Inet all the requirements of division (B) of this sect-ion, then persons who have complied with aiid mezt the reqniretnents of division (B) of this section, except the reqnirenent of division (B)(2) of this section, shall be considered qnalified candidates under division (B) of this secfion. (D) Newly elected sheriffs shall attend a basic training coarse conducted bv the Oltio peace officer training coinmission pm'suauatto clivision (A) of section 109.50 of the Revised Code. A newly elected slreriff shall coniplete not less tham two weeks of this course before the first Mondav in Jmlua,y next after the sheriffs elecCion. While attending the basic training cotnae, a newly elected sheriff may, with the approval of the board of coanty connnissionei'.s, receive compensa6on, paid for froln fund,s established by the sheriff's connty for this purpose, in the same tnanner and mnounts as if carrying ont the powers and daties of the office of sltetiff. Appointed sheriffs shall attend the flrst basic training eonrse cronclueted bc the OIo peace officer training conunission pursuant to division (A) of sec6on 109.80 of the Revised Code within six months following the date of appointment or election to the office of sheriff. While attending the basic training course, appointed sheiiffs shall receive t'egular compensation in the same nianner and amounts as if ca;rying ont their regnlm' powers and dnlies. Five days of instrnction at the basic Uaining course shtill be considered eqnal to one week of worlc The costs of conclncting the basic training corvse and the costs of tne,ds, lodging, and travel of appointed and newly electecl slieriffs attending the comse shall be paid from state fnnds approp;iated to the connttission for this purpose.

(P.) h; each cdeud,tr ye v each sherif'f shall attend .^.'r sneccss lidl y co n ;p l e t e at least sixteen bonrs o f contia ^d ednc.ttiou appr<roed imder dtvisiou (B) of sec:tion109.80^ the Revised Code. A sherill who receives a waiver of'e contimnug eclucation requmement I?oin the eorpy ss hal coinplete tbe;erp;nen;rnt cd Ihe earliest t9me aftorthe i uat(s. d ist il li l ltv or cause ten n (F)(l) Eachpersonwhoisucandidateforelecttl oatoor who is nuder consideration fbr appoiutmett to tho off ol shc;iffshall svew beforetheadrninistra6vejudgeofthe court of connuon plea.s as to the tnith of any infonnatiea the person pros ulc s to verify the person 's qualifications fot 1 tLe o17ic-e. A petson wlio violates this reqnirementis gaf^ k o f fal si fication nn de r secti on 2921 . 13 o f th e R evisedCode , (2) Eacl; bonrcl of elect;ons shall certify whether otnpt a candidate for the office of slceriff who has filed a declaration of candidacy, a statement of candidacy, ora declaratioo of intent to be u wlite-In candidate meets the I qualifications specified in divisions ( B) and ( C) of tltis
secfirn;.
ip iinder division (C) o{ section 111980 oi the Revised n b ccause o f inec b ca l di s. d > ili[y or li )r o th er goo d eauses

(C) The office of a sherff who is required to mmp) y with (livisiou (D) or (E) ofthfs section and who fes to successfiillv 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 of candidacv, a statement of candidacy, or a declarationpf intent to be a write-in candidate, as applicable, in the case of a ptimary eleetion forthe office of sheriff; the last day on which a person niay be appointed to fill a vacancyina party 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 wldch avacarsv in the office of sheriff occars, in the case of zn appointment to sach a vacancy nnder section 305.02 of the Revised Code.

(2) "Newly elected sheiiff" means a person wlio didnot Itold the office of she;iff of a coturty on the date the persoc was 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 y 351 (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 vuing conr.se: confinninn edacation;waivec RC 109.80. Raoks to be delivered to vnccessor RC: .311 . 13. C on4 uts for food medicnl othc.r selices, coolc, RC 341.90 Inspcction 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 officer comnussionBiuic training program. OAC ch. 1(19:2-1. Fnemns requalifdcatlon progiani. OAC ch. 109:2-13. Yulice and fire pen.sion fund -

A-22

SHERIFF 311.01
t sherillsball attend,ytd cen hours of continnin t (B) of section t09.80of receives a waiver of the it from the comrnission 80 of the Revised Code u other good cause shall earliest tirnc after ^e ididate for election tn or tpoint;ornt to the offlce ntitilstrntivejudge ofthe ntth of any information erson's qualifications for his rcquirernent is guilty 13 of tlie Revised Code. 11 certffy whether or not herif'f' who has filed a nent of candidacy, or a -iu candidate meets the ns (B) and (C) of this ) is required to comply ection and who fails to pursnant to those divi. tn t. the last day on whieh a can file a declaration of acy, or a declaration of s applicable, in the ease of sheriff,the last day `edtofill avacancyina isherifi'under Chapter case of a vacancy in the s after the day on which ccars; in the case of an ler section 305.02 oftlte
]7eath benefit limd OAC ch. 742-19. Nlernberslup OAC edi. 742-1. Comparative Lagisladon She^ CA-Cal Gov Code 26fi1111 FL-FIa Stut. 903)1 IL--55 1LCS 5136001 IN-Btmrs Ind. Code Ami. :3fi-2-13-2 gy-KRS 70.01(1 MI_-MCLS 51.68 NY-NY C:LS County 650 PA-16 P.5'_ 4 1201 ALR Coostruction and eflect ofconstitutional or s'tattrtory pruvision disqualifying one for public oflice because of previous tcnure of affice. 59 ALR2d 716_ power to appoint sheriff for term cotnmenciog at or after expiration of tcrni appoiuting olficer or body. 75 AL112c1 1287. corpor:d or above: Wellinf,rton v. Mahoning County Bit of Elections, 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 complete eniployment history; Stute ex reL Grounda v. linclcint County Bd. of Elecfion.s, 117 Ohio St. :3d 116, 881 N.hL2d I252, 2008 Ohio 566, (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(I in dte eligibilitv reduirentcnt.s in RC .311.o1(B)(8)_'I'hus the board of electiorrv erred bvi certifyin}; the petltioner u.v a write-in candidate for s'heiff: Statc ex rrl. Welliugton Mahoniu}{County Bd. of Electiunx, 120 Ohia St. 3d 198, 897 N_E2d 641, 2008 Ohlo s5f0,(2005). A change in the educational requirements for candidates for s'heriff was not applied in an nnconstitutionally retroactive in:mner 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 Ohio St.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, fitunilton Clounty 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(I during the pertinent three-vear period complies with RC 311.01(B)(8): State ex rel. (ihance v. Malioning C:ounty Bd. of Elections, 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 to have lreld a rank specifying superofsor status. Perfonnance of dnties 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 valid dttring the relevant tiine perfod is sufficient compliance with RC 311.07.(13)(S): State ex rel. Haybum v. IGefer, 68 Ohio St. 3d 132, 624 N.E.2d 699 (1993). Altlrough respondent never completed the Ohio pece officer training council's basic training course, where the recrorci substantiates that lie received numerous certificates of specific training dtning his tenure as deputy sheriff and sheriff, as an auxilimv pofice officer for a county police department, and as a comttv auviliary depnty sherif3, respondent wtts qualified for his office under RC 311.01(B)(8): State ex rel. Yeaglev v. Harden, 68 Olhio St. 3d 136, 624 N.E.2d 702 (1993). Revised Code :311.01(B)(9) tnquires ffve years full-time law enforceinent expetience, not full-time law enforceinent employment: State ex rel. Altiere v. Trumbull County Bd. of Elections, 65 Ohio St.:3d 164, 602 N.E.2d 613 (1992). A countv board of elections has not onlvthe authoritv to review RC 311.01(B)'s qttaHffcatian requirements for the office of sheriff, but also the duty to do so whenever those qualifications are ch:illenged in a protest: State ex rel. Shumate v. Portage County Bd. of Elections, 64 Ohio St. 3d 12, 591 N.E.2d 1194 (1992). Bomds of'elections, not the administmtive judge of the coart of common pleas, should evaluate a candidate i qualifica6ons under RC 311.01. The administratn,e jndge has only a ministerial dnty to notify the board of the results of the Bngeiptint se:uch and foiward the residence and employment histories under BC .311.01(B)(6) and (7): State ex rel. Snider v. Stapleton, 65 Ohio St 3d 40, 600 N.E.2d 240 (1992). An administra5ve judge of a coiut of common pleas is not atrtlrorized to certify to the crountp board of elections that a candidate for the office ofcomtty .sheriff satisfies the quallfca timix set foith in RC 311.01: OAG No. 2001-026 (2001). Pursuant to RC .3,11.01(F)(2), a county board of elections is reSponsible for determining whethec on particular facts, a person

CASE NOTES AND OAG

INDEX Compadbllityol pnsitiuns Compensztlon County court bailifl' Eligibility
ProMbitlon Village mayor Wvver

Compatibility of positions A 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 county conrt. The clerk of a county court, whether lre is the clerk of courts ae6ng as clerk of the county court under RC 1907.10.1 or whether he has been appointed clerk under that section, may uot appoint the sheriff or persons who are servfng as deputy sheriffs, to serve as deputy clerks for the purpose of accepting bail eud appearance bonds: 1961 OAC No. 2066 (1961). Compensation When a countv sheriff's term of office pursuant to BC 311.01(A) includes only a part of a particular calendar yeac the sheriff is en5tled to a prorated portion of the annual compensation fixed for that year pursuant to RC 325.06 and 325.18, which portion should be calculated to reflect the number of days in that calendar year which are included in the slte-riff's ternn of offics (1980 OAG No. 80-054 and 1941 OAG No. 3955, p. 529 ovemrled): OAG No. 90-023 (1990). Revised Code 311.01(D) does not entitle a newly elected sheriff who attends a training course before taking office to be eompensated 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 appropriated for this purpose: OAG No. 89-034 (1989). County eowt bailiff A county court bailiff is a law enforcement officer for purposes

ns a person wllo did not y on the date the person

150; 93 v 351; GC 2823; t, 10-I-53; 141 v H 683 (Efl 670 (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 341.20 . entrles, RC 311.12. o,RC.319.07. 11. o peace officer trainiag
):2-I. AC cb. 109:2-1:3.

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 candidate did 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, 2008 Ohio 706, (2008). RC 311.09(B)(9)(a) has an unequivocal me:infng and cannot be liberally constnted. A ctmdidate is ineligible withont the re4edtwo years of supervisory expetience at the rank of

 311.02

COUNTIES

266 VI1
=fUrmer

satisfies the qualifications spcc:ified in RC 311.01(B) for the oflice 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 clocs uut qu.dlfy as law cnfmceinent eperienee foi pinposes of HC 311.01(B)(9). ( ollege or othe post-second.ay educatiou does not 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 luw enfuiceinent 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 of traininl, u a law enforceinent office" is not hmited to a peace officc, 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 the cpralificafion date, a valid certificute of trainingfor ;r posltion as a law enforcement offfcer compensated with governmental funs, meets the reqnirement for the position of countv sheril3set forth in RC: 311.01(B)(8). BC J11.01(B)(0) does not requfre that sucli person actnallv htu been compensated with governmental fimds cithar for training or for perfbrmance of his duties as a law enfmcement officer: OAG No. 88-048 (1988). Prohibition Laehes barred a prohibition claim against die board of ele,c-

premium fbr such boncl shall be paid by the board and charged to the geneatl hmd of the county. Such bonds with the approval of the board mrd the oath of offiee rec uued by sectlons 3.22 and 3.23 of tlie Revised Code, aunS Section 7 of Article XV, Ohio Constitntfon, indorsed thereon, shall be filed with the county auditor andkeptln his office. The boat-d mav lequire thc sheriff at aoy titne dunng his telm of officc, to give additional sureties on his bond, or to give a new bond. No lndge or clerk of aury colnt or attoniey at law shall be received as snrety on such bond. If the sheriff fails to give a bond within the time reguired, or fails to give additional sureties on such bond or a uew bond within ten days after he has received written notice that the board so reqnires, the board shall cleclare 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 ot Code Revision, 10-1-53; 129 v 1365. Eff' 10-12-61.

eb a`.gPpoini ^end of lected L 32 `f'Authri Whe 6solutf

nyacanc)

under I iteath Whe. pccurs i =6f the t 9 e offi

f^C firs

pven-m >lhe occ .'tElectim ; i?' Whe ;"s-elect "4wi;ich k sDC6 pe ?:appoinb sztiuezpfn y

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 tlurd persons rescdting from operation of motor vehicle by subor dinate. 15 ALR3d 1189. Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing personal injury or death. 60 ALR2rl H73. Personal liability of policeman, sheriff, or similar peace officer or Iris bond, for injury suffered as a result of failure to enforee law or arrest lawbreaker. 41 ALR3d 700. Public officer's bond as subject to forfeiture for malfeasanee m office. 4 ALR2d 1348.

fions; Carver v. Stanldewicx, 101 Ohio St. 3d 256, 804 N.E 2d 419, 2004 Ohio 812, (2004).
Village mayor A village mayor is not a"pcztce officer, as defined in RC 109.71(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 law enforcement officer, as defined in RC 2901.01(A)(11), vested with cluties related to the enforcement of statutes, ordinances, and codes. Whether a village mayor is employed as a law enforceinent officer on afull-time` basis, tts is required by RC 311.01(B)(8)(b), presents a question of fact that must be resohed on a case bv-case basis by a county board of elections: OAG No. 2001-026 (2001). AVaiver If an individual who lacked the certificafion and ezpeience requirelnents of RC .311.01(B)(8) and (9) for qualificution as sheliff in 1988 was elected or appointed to the office of sheriff in 1988 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 basic training 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 1992 election and all subsequent elections: OAG No. 90-112 (1990).

M" a (A) eanin Code. f (B)(1 may ap the c

3 11.03 Disability or absence. When the sheriff, by reason of absence, sickness, or other disability, is incapable of serving any process re quired to be served, or by reason of interest is incompe tent to serve it, the court of common pleas, if in session, or, if not in session, a judge of such court may appointa suitable person to serve such process or to perform the dnties of sheriff during the continuance of such disability Sncli appointee sliall give such bond as the court or judge reqtrires, conditioned for the faithfid performance of Ivs dnties, 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); 129y 1:365. Eff 10-12-61. Cross-References to Related Sections Filliug cacancy, RC 305.02.

^luch t comI pon tl rk's I case

^eriff erving usent eputie ^putie dge c Cputy. ^Z) b $Qde, t Nsion
OSE on. ^`(EC) (1

311.02 Bond.

The sheliff shall, within ten days after receiving Itis commission and before the first Monday of J:nruary next aftei- liis election, give a bond, signed by a bonding or surety company authorized to do businecs in this state and to be approved by the board of county commissioners, or, at the option of such slleriff, sig,ied by two or more freeholders having real estate in the v:ilne of double the aunount of the bond, over and above all encmnbrances to the state, in a sum not less than five thousand nor more than fifty thousand dollars, which sum sllall be fixed by the board, and such bond shall be conditioned for the faithful performance of the duties of his office. The expense or

CASE NOTES AND OAG

INDEX

rlff sman m, o ou; ^ny.

ceneedp.
AutlLritv of cmmN cnmmLsicmerr Drzah ol Inrumbenl shedff

(2)(a)
ejiuty
^On

i) Pl .^;.(4) at on ;

Generally d ^v General Code 2828 and 10 (RC 31103 an

A-24 ^

 731.32
Delay by injunction

MUNICIPAL CORPORATIONS
-Compliance with statute A signature on an initiative petition to amend a ch followed by the ward and precinct of the signer, ot does nat ^, ne can with s gnahrresStatetexNel. Poor vaAdrlisou^l32 a vahd and suffictnt Op. 4.59, 9 N.E.2d 144 (1937). Ohio St.477, 8 -Presumption of va6dity Under RC 731.31, no signature can be rejected Wtthout a lirtding of its rnvalidity, and any .signamre whic6 is not exammd and rejected for some plausible legal defect must be presd ume to he valid and counted as such State ex rel. Blackwell.tmc v Baojh -Sufficiency of affidavit ce with ti6ed copy otproposed es of directn P of clerk

If an election upon an initiative ordinance i.s delayed by an injrmetion, the tiine oisuch delay is to-be deducted; and an eleotion within the period, rs thus ascert;uned, and within the mne fixed by statute, is valid: Cincimiati v. Hillenbrand, 103 Ohio St. 286, 133 N.E. 556 (1921). Initiative petition -Compliance with statutes The initiative petition compliul with the fnll title and text provisions of RC 731.31: State ex rel. Hazel v_ Guyahoga County 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 did not require relection of a referenduin petiBon. The Ohio Constitution provides for liberal construction of provisions for inunicipal referendum: Shrtztnan v. Madison County Bd. of Elections, 93 Ohio St. 3d 511, 757 N.E.2d 297, 2001 Oltio 1624, (2001). Map requirement -Compliance with statute An initiative petifion of a zoning ordinance does not fail to comply with the requireinent of BC 731.31 that it contain a full and correct copy of the title and text of the ordinance, by its failure to include a copy of the map or any tnore reference to it than die letter designation of the several areas thereon: Drockton v. Bd. of Elections of Cuyahoga Cormty, 16 Ohio Misc. 211, 45 Ohio Op. 2d 173, 240 N.E.2d 896 (1968). Municipal petitions Neither RC 3519.05 nor 3519.06 requires circulator compensafion or elector-lmowledge stateinents in municipal initlative and referendum petitions: State ex rel. Sinay v. Sodders, 80 Ohio St. 3d 224, 685 N.E.2d 754, 1997 Ohio 344, (1997).

) ot council
^$ require^uen 'pmphanca wit er of clerk sture requirer kcompliance 3ption

59 Ohio Op. 198, 73 Ohio L. Ab. 204, 135 N.E12d 92 (CP 19,56), ^ Where a board of elections has checked the si na
petitions and dete'mined that there are a suf5ci nt numlgr thereof 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 stgtrqry a, were to the best of his knowledge and belief quaHfied to sign State 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 f witnesses to determine. Council may not circu;nvent its duty to w submit an amendment "forthwit bv unil dl necessareaymgft ys detertnination: 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 hde

6oation and c

ilicability

he provision gofaninitla
o the certi

tor or clerk
atlve petition

1tIII, 9: St 2 Ohio Op.

ority of cle gnatures municipal cl

;ignatures affn
1 ' ., ^tton

on its I

apparent on the face of the peti 5ons or whicli require the aid of

^gp i^.sv. Qurrk;

3E.2d 175 (1972 unicipal cl,

ignatures affr

ltlon of RC p; 2d 175, 13
ul municip al cl ^1,atures affixed 01.38(F): Sta

and text of a proposed ordinance is sufficient to authonze the statute in other respects are comphed with: Cinannati v Hillenbrand, 103 Ohio St. 286, 133 N.E. 556 (1921).
subirussion thereof to the people if the requirements of th8 :-^

Rezoning -Compliance with statutes Due to the increasing eotnplexity of zoning and planning
ordinances, a proposed ordinance's mere reference by street location and applieation nutnber to an area of land projected for rezon(ng meets the requirement of RC 731.31 that a referendum petition contain the number and a full and conect copy of the title of the tneasute sought to be referred: State ex rel. Neighborhoods v. Franklin County Bd. of Elections, 1996 Ohio App. LEXIS 4806 (1996). Signatures Under RC 731.31 it is essential to the validity of a signature on a petition of an elector of a municipality where registrations are by precincts that sucli signature be followed by the correct precinct of the signer: Lynn v. Supple, 166 Ohio St. 154, 1 Ohio Op. 2d 405, 140 N.E.2d 555 (1957). It is inandatory that the precinet of a signer of a referendutn petitiou, proudded for by municipal charter, be placed after his signature where the charter provision provides that as to signing, circulation, form and affidavits such petition be governed by general law and the failure to do so invalidates the petition: Lynn v. Supple, 75 Ohio L. Ab. 444, 134 N.E.2d 93 (App 1956). Failure of those wlio sign a referendum petition under this seetion to write after their names the name of the city in which the 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 a referendum petition to be stated in the petition by 9te petitioner, does not require that such signature should be on any particular date, and such signatures are valid if made at any tirne after the original passage of a resolution declaring the necessity of a street improvement and before the filing of the petition: Hmnilton v. Greevey, 9 Ohio App. 221 (191.7).

13 Ohio Op.

731.32

Copy of proposed ordinance or

Alicability < ere the cha

in features o: statutory provi "all other mai

measurefiled with auditor or clerk.

Whoever seeks to propose an ordinance or measure in"a mtmicipal corporation by ini6aUve petition or fles a ^ referendum petition against any ordinance or measure shall, before circulating sueh petition, file a certified coilt, of the proposed ordinance or measnre with the city auditor or tlre village clerk. As used in this section, "certified copy" means a copy ., containingawrittenstatetnentattestingthatitisatmea6d^ exact reproduction of the originaY proposed ordinance or
measure 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

power of refer
'Revised Code ^ent with respe,

fition or with res

"Tr to its circu 731.32 and 731 ;Nimon v. Sprir ' 2d 592 ( 1966)

,Application of e board of e idated the ref dtarter adopte

provisions:

Municipal inotor vehicle tax subject to referendum, RC 4504.06, 4504.17, 4504.171, 4504.17.2.
Words which shall be printed in red, RC 731.33. CASE NOTES AND OAG INDEX
Applicability Authority of cleik -Slgltatures Charter -Appliuability nf.Yatute -Applicatinn of statute -7Tnnsrnission of petitton

Yehoga County 44.2d 1063 (1991

ransmission o rere a municip

ttain the suffic

tfang the petition 'ptii involve: eton

ch is correctable k , 59 Ohio App 78),

^mPbance with m e city clerk/ftnc ofthe resolutu

ORGANIZATION
cilotpganoe with statute dia ^ Certtfled mpY of nL nn" CapYfFraposedord'sw e oFtt nm^cr Duttes of di re ctea p^q of counul y pjptg requirement 6 s tatu tr .Cowp9+tnce power of clerk
Sigoatare requirement Seietcenplianue

731.32

Crossmmn Communitles of Ohio v. Greene County Bd. of Elections, 87 Oliio St. 3d 132, 717 N.E.2d 1091, 1999 Ohio 308, (1999). -Certified copy of ordinance A copy of an oidinance or measure certi$ed as true by the clerk of council is a sufficient compliance witlt [his section: Hocking Power Co. v. Harrison, 20 Oliio App. 135, 153 N.E. 155 (1925). Copy of proposed ordinance VillaQe fiscul officer did not have a duty to certify the sufficiency and validity of an initiative petition where the petitioner did not file a precirculatlon certified copy of the proposed ordinance: State ex rel. Lewis v. Rolston, 115 Oliio St. 3d 293, 874 N.E,2d 1200, 2007 Oliio 5139, (2007). Where a cih= employee "certified" the attthenticity of ordinance.s attached to referendum petitions and it was undisputed that the documetts attached to those petitions were in fact true and accurate copies of the ordinances, such was sufficient under Ohio Rev. Code Ann. 731:32, as the statute clid not require a `certified copy' of the orrlinxmce to be signed by the city clerk of cotmcil as the official custodimi of the applicable records. Although Ohio R. Civ. P. 44 and Ohio R. Evid. 901(B) set out requirements 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 law statutes, they were not the onlv required tnethod pumsuant to Ohio Rev. Code Ann, 731.32. Ranldn v. Underwood, 2006 Ohio App. LEXIS 1098, 2006 Ohio 1237, (2006). Duties of director of finance Since the city director of finamce wus a pubHe official, the citv charter imposed ou the director of finawce the identical duties that the auditor formerlv had, and the director of finance was reqrtired to perforin "such other duties as may be required by the laws of Ohio,' the director of finance wau the official who was the de facto auditor with whom filing shoulcl be inade for purposes of RC 731.32: State ex rel: Unnamed Camnin. v. Council of the Citv of Brook Park, 1998 Oliio App. LEXIS 3730 (8th Dist. 1998). Duty of clerk The clerk of council does not have a chtty to certify referendum petitions to the board of elections where they are not acconapanied 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 council Once a peti8on for a chaiter amendment cantaining su&icient v.Ji<I signatmes i.s fJcd with either the county council under OConst art X. 4 or city council tmcler OConst art XVIII, 6 and 9, the onlv entitv with any duty of submitting the is'sue to electors is the council T re requireinent of BC 731 32 requiting filing of a precirctdaflon copy of u petition conflicts with the < c.onstituhon State ex rclVt'c]<ct.s. Stunmit CounTy ' Counctl 93 Ohio St. 3d ^26, 757 N E2d310, 2001 Ohio 1622, (2001). Filing requii-ement Trial canrt prnperly rletermined that referenduni petittons yverF not inr,dida#ed under Ohio Rev. Code Aun. 731,29 and 73 tJ32 where they wei e received bv :m emplovee who worked in thc city anchtor's ofhce, ulthough tlsey were not specifically deliveirdtotliemtditoi astherew.xnoevnlcnceofanyfraudand any other conehision would havc produced an absurd result by elevnfing statutary repnrements nver practical con.siderations. Runkiu v. llndervvood, 2006 Oliio App. LEXIS 1098, 2006 Ohio 12:37, (2006). Revo.cd Code r3132 requires in cities, that those who proposc a referendnnt on an ordin tnce must file a eertifted copy uf the orclinnnce vvith tlte citv anditor before cimulating the referendiun 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, averified copy of the proposed orclinance must be filed with the city

Venticatino Verificn$on and certtficafion

Applicability

The Drovis7ons o f R G 731 . 28 an d 7:31 . 32 , re l at i ve to th e gling of an Inifiative petitiou with tire city audltor or village clerk and to the certification of the ordinance or measure bv such mulitor or clerk to tbe board of elections do not apply to an mjtiadvepetition to nniend a city charterfiled putsuantto OConst ad 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 -Signatures A municipal eledc of council iioes have autliority to inialidate sll signatnres affixed to referenchun pait petitions where the part pe5tion 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, 392 N.E.2d 175 (1978). A municipal clerk of council does have authority to iuvalidette all signatures affixed to referendum part petitions circulated in violation of RC 731.32: Stste ex rel. Wutldns v. Quirk, 59 Ohio App. 2d 175, 13 Ohio Op. 3d 202, 392 N.E.2d 175 (1978). A municipal clerk of council has no authotity to invalidate signatures affi.xed to a referendum petition in violation of RC 3501.38(F): State ex rel. Wntkins v. Qnirk. 59 Ohio App 2d 175,13 Ohio Op. 3d 202, 392 N.E.2d 175 (19i8). Charter -Applicability of statute Where the chatter of a municipal corporation provides for eettrun features of the initiative and referendtun diffednav frmn the statutory provisions vvith relafion thc reto, and provides further Atat`all other matters relating to the qnestion of the esercise of the power of refetEndmn shall be reoulated by the pirovi.sions of the Revised Code of Ohio rela6ng to referendum pefltious,'but issilentwith respect to language to be contained on a referendum petition orwith respect to filing snch petitton with a village official prior to its circulttton such matters are contralled by RC 731.32 and 731 33, and BC 7314fis inapplicable: State ez roL Nunon v. Sprinndale, 6 Oliio St. 2d 1_ 35 Oliio Op. 2cl 1. 215 NE2d 592 (1966). -Application of statute The beard of el<ctons propuh applied B( 731.32 and aralidated the ref'eiendnni petition inasmuch as Aiticle I of the 4tScharter adopte<I JI st.tte laws that were not tncousistenttinth Obarter provisions: State es rel. ( ituen.s for Better Beachmood c C"yaltoga Cotmty Bd of Election.s, 62 Ohio St. 3d 167, 580 NE2d 1063 (I991).

-21ansmission of petition Mlere a mtmicipnl cbiuter reqnires the elerlc of comsll to first ascertain the sufflcienc y of a rcferendum retlBou before transmttting the petition to ntv conncil te clci^<s iefusul to trnnstnit ftbopetiflon involvcy the cxercise of discrefion, thc tiross nbtue ol Whf ch is eoaectable thrungh iuandanms: State es rel. Wutkins v_ Qt iuk 59 Ohio App 2d 175, 1.3 Ohio Op. 3d 202, 392 N. E.2d 175 '^ (1978 ). Complhnee with s t:d u te ^ The city clei Wf7n:mce director a nri g intJ si g natnre attestin g the eopyopthe resolution complied with BC i31.32: State ex reI.

 731.33

MUNICIPAL CORPORATIONS
b^7yr 33 Ohio slL. Ab^l 85 (CI 11940)^sreia v. Murray, 19 Ohio pP. Verification and certification There is nosubstantiail difference betweeirverification gnd certification of a copy of ms orclinance filed with a referendum petition: State ex rel. Hir.shler v. Fr;vier, 63 Ohio St. 2d 333^ 14 Ohio Op. 3d 418, 410 N.E.2d 1253 (1980).

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 be filed with the eity auditor6r village clerk m'eantindatory. Where a city has no official named auditor, these filingsnuut be inule with 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 or files a referendum petition against any ordinance shall before cfrculating such petition filenverified copy of the proposed ordinance or measure with the city msditororvillage clerk, is mandatory, and in the absence of coinplianee therewith no duty falls upon the city clerk to receive and file with tl'ie board of elections a referendum petition otherwise valid: State ex rel. Mika v. 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 subtnitted must be filed with the auditor; (b) it must upon its face bear the statesneut of someone that it is the very ordinancewhich is to be submitted to the electors; (o) the rigllt to initiate an ordinance is personal andahe cppyfiled must bear the name of soine person who sponsors it: Hopkins v. Marburger, 31 Ohio N.P. (n.s.) 171 (1933). -Compliance with statute Depositing a copy of the ordinance 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 face nor the certificate of anyone tliereon, is not a substantitd compliance witlr the statute even thouglr it be deposited there before the petitions are circulated and it be a true copy of the ordinance with regard to which initiative vote is desired: Hopkins v. Marbmger, 31 Ohio N.P. (n.s.) 171 (1933). Power of clerk The power of a municipal clerk.ofcouncil to ascertain the sufficiency of a teferendmri petition is not co- extensive vvitb that of a board of elections under RC 3501.11(K). The clerk of council possesses no judicial or quasi-judicial power in this reg.vd, but is liinited to an examination of the face of the petitiou: State ex rel. Watldns v. Quirk, 59 Ohio App. 2d 175, 13 Ohio Op. 3d 202, 392 N.E.2d 17,5 (1978). Signature requirement

At the top of eacli part of the petition menti oned in section 731.32 of the Revised Code, the following words shtill 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, Eff 10-1-53.

SulBclency ol'petition -Filing n,lluirement

Sufficiency of petition -Filing requirement gislative authority of Wlrere a petition has been filed with the le} a nnmiMpality requesting the passage of an ordinance subrnitHng a proposed charter amendinent to the electorate, and the legls. lative authoiity in fact passes an ordinance of submission by

unanimous vote of its meinbers, no inquiry may therea$er be made 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 filing petition..

Tlrepetitioners rnay designate in any initiative or referenduni petition a committee of not less than three of their iiutnber, wlro shall be regar-ded as fihng the petition. After a petition has been filed with the city auditor or village

RC 731.32 requirement of a signature affirming the truth of the proposed ordinance on the precirculafion copy of an initiative petition is a minimal requirement to prrotect the integiity and reliability of the initiative process: State ex Yel. Steele v. Morrissey, 103 Ohio St. 3d 355, 815 N.E.2d 1107, 2004 Ohio 4960, (2004). Strict compliance
RC 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). Verification The pmpose of requiring tliat a verified copy of a proposed ordinance be filed in advance is that citizens asked to sign initiative petitions inay detennine whetlier the petitions cireulated are bona fide, and a statement in wo5ng that the copy filed is in theforsn of language to be used on petitions circiilated satisfies 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

clerk it shall be kept open for public inspeetion for ten days. If, after a petition proposing an ordinance or other measure has been filed with such auditor or clerk, the proposed ordinance or other measure, or a substitute for the proposed ordinance or rneasureapproved by such colmnittee, is passed by the letlislative authority of the municipal corporation, the majority of the cominittee sha notify the board of ele-ctions in writingand such proposed ordiuance or rneasure sh-all not be submitted to a vote of the electors. If, after a verified referendum petition bas been Ned
agaiust any ordinairce or measure, the legislative authoiity of the municipal ^ corporation repeals snch ordinauce or measure, or it is held to be invalid; the board of elec6ous shall not submit such ordinance or measure to a vote ofthe electors. HISTORY: GC 4227-8; 104 v 238; Bureau of Code Revisiom Eg 10-1-53.

CASE NOTES AND OAG

INDEX Certiflcanon Consbvctinn

1963). Thesequirement of this section that a didy veiified copy of an ordinance shall be filed with the city auditor or village clerk before circulating a referendum Lietition, is mandatory and inust

QUO WARRANTO
j,nyllment is due; but alI its rights hereunder shall then be tertniuated." The nonpayment of the seoond instnlhnent at the I e provided will not sustain a forfeiture, or authorize a jndgrnent of ouster, under the terms of the grant: State ex rel. v io Trac. Buff Nort h ern O b & Co.,104O h io St. 245,135 N.E.

2733.03

58S (1922).
if a savings company is wrongfully payiug commissions for the sale of its stock, the remedy is quo wacranto, and not an aetion 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). -Insurance When 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 Auto Supply 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 contru.ts of insurance for the purpose of indeinnifving etnployers for whiclr authotity is given in general terms in CC 9510 (RC 3929.01). Indemnity insttrauce companies will be ousted fromn the frnnchise for writingindemnity insurance pohcies which do not contain the provisions required by GC 1465-101 (RC 4123.82), or which contain the provisions whieh are forbidden by GC 1465-101 (RC 4123.82): State ex rel. Turner v. Employer's Liability Assur. Corp., 95 Oluo St. 289, 116 N.E. 513 (1917)-Not-for-profit An attenipt by private citizens to incorporate as a public humane society is in contravenfion of law, and a quo warranto action tnay be brought by the attorney general of Ohio to cancel a respondent's cotporate status: State ex reL Brown v. Regional Public Scrvice Corp., 47 Ohio App. 2d 300, 1 Ohio Op. 3d 360, 3.5:3 N.E.2cl 851 (1975). Not-for-profit If a hospital, which is incorporated as a corporation not for profit, is operated as a snbterfuge on the part of its promoters fnr t6e purpose of deriving a profit imder gnise of a charitable institution, the remedy is by proceeding in quo warranto: 0'Bden v. Phvsicimns Hospital A.ssu., 96 Olrio St. 1, 116 N.E. 975 (1917). Pleadings The ride of pleading in an action in qao watranto is somewhat different froin the nile of pleading in an ordinaro civil case; quo warranto proceedings exJl for only a short form petltion, ,setting Poith one nr ntore of the provi.sions fonnd in CC 12304 (RC 27.33.02): SCtte es rel. Kearns v. OhioMidland 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 is not to tender un i.s.sue of fmct but simply to call uptm the defendtuit miporation ht shotiv its wturant or charter for exercising the privile7(es and fi'anchises mmmcdState 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)Procedure When, in un action iu rpio warranto, it is found and adjudged that a cotpora6ou Iras snolated B(: 27:3.31)2(A) by offending against a law providing for its own creation, liC 2733.211 requires thatjudgment be entered that the corpn-

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., 40 Ohio St. 3d 71, .5:31 N. E.2d 688 (1988). Wltat Oliio's yuo warranto .statute does, in effect, is to take the tiglrts (tlie assets) of the unincorporated association of inclivi(Iuals (the void-ab-initio cotporation) and places tltem (the rights) in the control of a tntstee or trustezs for the benefit of those creditors who did bu.siness with that unineorpontted association dwing the time it was acting as if it were a corporation: Ntontgomery Cotmty Residential Development, Inc. v. Nlontgomery County Board of Mental Retardatlon & Developmental Disabilities, 680 F. Supp. 1068 (S.D. 1987). Public utilities Quo warranto and not uijunetion is the reinedy for tesflng the validity of a franchlse of a pttblie utility, but if a public utility has removed its eqtupinent frmn the streets of a municipal corporation, it may be enjoined froin reconstntcting its eqaipinent in such streets without a vtilid franchise: Hardin-Wynndot Lighting Co. v. Upper Sandusky, 93 Ohio St. 428, 113 N.E. 402 (1916), [aftnned 251 U.S. 173 (1919).] Religious organizations --The issue of wltether a local chnreh is a part of a hierarchical, cliurch organization is properly cognizable in a quo warranto proceeding, and the utilization of a broad spectrtun of factual matters demonstrating the local olntrclr's Participation in the affairs of the natlonal church and an adherence to the national church's presctibed procedure before the dispute arose is the proper tnethod of rletennining the local church's affiliation 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 lands
Quo warranto is available to the state to protect its title to canal lands in possession of and claimed by corporate defendant: State ex rel. Bettmnn v. Miami Conservancy Dist., 125 Ohio St. 201, 180 N.E. 893 (1932). Quo warranto is the proper remedy to question the dght of a 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). Timeliness A qno warranto proceeding brought against a cotporation not complying with milk prices adopted by the milk marketing cnmmission, while the corporation was pursuing the statutory reinedy to review the commission's order denying a license to sell milk, was prenature and shotdd be cGsmissed, GC 10^40-10 (RC 917.22): State ex rel. Bricker v. Kroger Groceiy & Baking Co.. 127 Oh9o St 167, 191 N.E. I(19.3.3).

2733.03 jurisdiction and venue in quo warranto actions.

An action in qao wanramto can be bronght otdy in the snpreme cvnrt, or in the cotirt of appeals of the connty in whiclt the defendant, or one of tlte defendants, resides or is found, or, when the clefenclant is a corporation, in the connty in which it is sitnated otlias a place of btrsiuess. Wben the atlnrney general files the petition, snch acrion may be brougJit in the comt of appeals 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 conrt, O(m,at art IN2 2(13) Ohio Rules Original actions in snpreme cvnrt, .SCtI'r.tr6 X. Comparative Legislation Jnrisdicfion and veuue CA-Cal Code (:iv 1'roc 803 FIr -Flu. (:onst. Art . V 4, 5 IL-7:35 ILCS 5/18-,102 IN-Burns Ind. Coclc Ann_ ,34-17-1-1 KY-KRS 415.010 MI-MCLS 60021.7 NY-NY CLS Exec 63-b YA-421'.S. 7)1, Pa R.C.P No. 1112
snprnne trmrt ungiutJ jurlSdirtion in quo wurrutto proCeed-

iu};sy thc requiIcnieut thttt thr procreding nurst be broughtllt the connty in whfeh the deleudaut residcv- as wus held fn State cx rcI. Lowes v'fhompxun. ,34 OS 3(i.5, is [bux repcaled, so far us it relutes lu tlre suprrnie cnrut ,Slate ex rel. Turner v Ftrnder l06 Obio St 191, I40 N.E. 183 (1922) Venue \Nliere an ution u cuuuueucT^d in thc oon2et appellate rliettict Inrt In diewrong comrht the action .vill he transfereed to [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 of another ruunht.ser Ren,adtler ,_ State es reL I lagan, 90 Ohio S't. 1363, 107 N.P:. 758 (1914). An lction brouglrt bv the state on the relation of the attoruev geuerxl tu test the right of a raihvny cu;pcratJon to ocenpv Itmds ln Cmahoga oonnty whidt tue cl..... ed to belong to the state, mav be brought in tlte circuit court of Fran)din counh- Cleveb.m<I Trnninal rk V'alley R.R_ v. S'tnte cx rel. AtLy Gen_, 2;5 Obio St. 251, 97 N.E. 967 (1912).

CASE NOTES AND OAG

INDEX
C rurt of oonnnon plea llealaratnnjudy,nneot Nut-for-prnCit ReGgtous urganimtion.c

2733.04 Commencing quo warranto. When directed by the goveruor, supreme court,

Supreme cvurt nf ulrio

venue

Court of common pleas A court of common pleas does not have jnrisclicHOn af nn action in quo wturanto, such jumisdiction befng either in the supreme comt orthe court of appeals: Veterans of World War I 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 a corporate franchise can he tested is bv an action in qno warranto, the tnal court has jurisdiction to determine rights antong the pluties in an acfion fordeclsvatoryjudgmeMrOhio Hospital Assn, v. Commmiity- Mnt. Ins. Co., 31 Ohio St. 3d 215, 31 O6io B. 411, 509 N.E.2d 1263 (1987). Not-for-profit The only way an al]eged misuse or abuse of the cemeterv associa6on's charter pnvileges can be challenged is in a proceeding in quo warranto in the court of appeals or the supreme 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 #rom continrring to act in that role- it sought relief in the nahtre of quo wananto because it was a corporation crYated by athority of the state and the relief it sou,a,ht was orster, which was only available in a qrto wturanto rtction, so n comt of cornmon pleas had no jmisdiction ever such ttn action, under Ohin Const. att IV, 2 and 3 and RC 27.33.03, and orders issned bv a eourt of crommon pleas iu such an actlon were void ab initio. Greater Temple Christian Chnrch v Higgin,s, 2006 Oltio App. LEXIS .3205, 2006 Ohin :3284, (2006), Supreme Court of Ohio The legislature cannot limit the jurisdiction of the supreme court in quo warremto since OCon,st art IV. 2 gives the

secretari^ of state, or ,eueral a.ssembly, the attorney generail, or a prosecuting attorney, sl)all coimnence an action in qno warranto- When, rnpon complaint or othenvise, either of sucl) officers bas good reason to believe that anv case specified in section 279:3.02 ofthe Revise(f Code can be establJshecl by proof, lie shall commence snch action.
HISTORY: RS 6762; S&S 89, 1264, 1266; 36 v 68, 8; 50 v 267, 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 Substance of the Action

CASE NOTES AND OAG

INDEX

Aut6or[hnt Gmrnur

19

Authority of prosecuting attorney A person rnav serve simultaneously as an assistant prosecuting attornev^an(1 member of the let.^'slative autltomity of a statutor" citY, provided that as an assistant prosecul3ng attornev he doe.s not prepttre the counN budget or present it to the crnmn, budget conunission, substltute for the prosecuting attornev on the counbbudy+et conunisslon, or prosecute an action nnder BC 117.27 to 117.29, RC 733.73,RC 2735.04 nr RC 273.3,0.5 ugefnst himself as a metnber of tbe legi.dafive autharity- In addition, as an assistant prosecuting attornev he rn,re not adrdse or represent an etfitv on behalf of the prosecuting attornev in a Inatter or legal proceeding invoking the citv be serves as a mentber of its legislative authorih-. (OAC No. 83-0.30: OAC No. 70-053 OAG No. 70-022; OAC; No. 69-13:3: 1846-19(16 Official Opinions of the Ohio Attorney (=eneral, wl. 4- p. 746, questioned): OAG No. 99-027 (1999). An indi,ndmJ Inav hold simtdtaneonslv the positions of rusistant county prusecuting attornel' and administrotivehear-

 2733.06

COURTS - GENERAL PROVISIONS - SPECIAL REMEDIES

Kadlcr, 56 Olrio St 2d 116, 10 Ohio Op. 3d 307, 383 N.E.2d 119 (1978). Damages to ousted public official An onsted public official m:w assert a danrage claim for breach of employmenl Cmrtract in a conimon pleus court, and such uctiun need not await the coninienccinent or eonclusien of 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 office Person whu w:u elected to villut;e coimcil had u reasonable fime to oblain :m order expunging a felony conviction that disquaified him from au office of public trust. State ex rel. Powers v. Cmtis, 2003 Obio App. LEXIS 5453, 2003 Ohio 6104, (2003). Colli (19 0 oath 0 rega ings of 0 ex r 225

action mav be brought by the attornev genead ol Ohio on liis own reLttion to cmicel a respundeutv corponrte statas: Statecx rel. Brown v. Regionel Pnblic Safety Servicar Corp., 47 Ohio App. 2d 300, 1 Ohio Op. 3d 360, 35.'3 N.Pl2d 851 (197.5). Quo warranto procecnlings do not provicle un ade-quate remedy because, under Ohio law, such procc-rdings can be brought only ut [he discrction of thc uttorney genenil or .r prosecufing attorney on leave olthe conrk asd nnt as a matter of right: Lapidex v. ]Joner, 248 F. S'upp- 88:3 (E.D. Mich196.5). Discretion of court When 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 file a petit'ion in quo wurrento is necessary: but when he brings such action upon behtdf of an indmdmil, s2iclt leave is necessary, and the supreine court niay refuse to Itear .sach proceedings: State ex rel. Hogan v. Hunt, 84 Ohio St. 143, 95 N E. 666 (1911). Standing Only the attorney general wnd prosecufing attornevs have stancling to seek a writ to challenge the right to a nonpublicoffice: Stute ex rel. Hawthorn v. Rassell, 107 Ohio St 3c1 2$9, 838 N.E.2d 666, 2110.5 Oliio 64:31, (2005).

I' all puk offi def Oh car of 19! Joi Tu

Due process
Ohio Board of F.chtc:rtion member who was removed from his elected position was protided with due process where Ohio law provided for post-tennination judicial proceedings in the fornt of a quo warranto action even though lie did not avail hituself of those proceeclings: Brickner c. Voinovich, 977 F.2d 235 (6th Cir. 1992). Entitlement to office Action in quo warramto tmder RC 2733.01 was dismissed where itwu brought by an at-large council member candidate against the elected comicil member, as the aetion was premahire where the elected official had not yet taken office. The candi<late lacked standing under RC 2733.06 to bring the action, as he could not show that he was entitled to the ofree. 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 establish entitletnent to the office, judgment mav still be rendered on the issue of whether the respondent lawfiilly holds the office: State ex rel. Myers v. Brown, 87 Ohio St. 3d 545, 721 N.E.2d 1053, 2000 Olrio 478, (2000). Quo warranto is the proper action to test the actual right to a public office. However, before a partv is entitled to maintain an action in quo warranto, lie must not only show his own right to the office but be must also establish that another is aetually holding office. Quo warranto does not lie where no one has actuallv assttmed office: Steiniger v. Butler Cty. Bd. of Commrs., 60 Ohio App. 3d 122, 573 N.E.2d 1212 (1989)ToprevailunderRC 2733.06,arelatormustshow(1)that the office is being unlawfully held and exercised by tlre respondent, and (2) that relator is entitled to the of6ce: State ex 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, and where the controlling law requires a findiug that a relator would not be entitled to an office even if that office were determined to be unlav+fnlly held bv another, the relator has not presented a good faith claim of entitlement to the disptited office and the complaint in quo warranto must consequently be disinissed for lack of stancling: State ex rel. Halak v_ Cebula..50 Ohio App. 2d 334, 4 Ohio Op. 3d 285,363 N.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 reason does not fill stich vacancv within thirty days front the titne it occurs, the mayorhas a mandatoiy duty to fill the vacancy by appoinbnent, and if lie in the discharGe of such duty. without anv collusion witlt the legislative branch of the city, makes an appointment to tbe vacancy and his appointee quslifSes for the office under the terms of the charter, the appointee is legally enfitled to the offlce zmd has a tight umxlertlris sec5en to have another person oaste<l therefirom who is unlawfu]ly holding the office and exercising its fnnctions: St.rte ex t-el. Flask v

[USURPATION OF OFFICE]

R: 2C

2733.06UsurPation of office.

St

A person clniming to be entitled to a public office nnlawftxlly lield and exercised by another may bt-ing an action therefoy by hirnself or an attorney at law, upon giving 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
Applicvlrility Dz,nages to nusted puhlic ofncial Disqnalification fmm ollice Due process Entl[lement to ollice loulder of parties Open meetings Ixsv Standing of indiFddual

Applicability When an inmate clatmed t'hat a prosecutor and a judge, now retlred, initiated and presided ever a'sham" legal prosecution of him, this was not a proper claim for a wiit of quo warranto because 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 the citizen claimed to be entitled to the public olfice which a respondent hel(l, and this was not the inmates cl.um. State ex rel. Cross v Johnson, 2005 Oliio App. LEXIS 2632, 2005 Ohio 2806, (200.5). Quo warranto cannot be used to challenge the results of an election of a emndocninium association board: Wright v Kings Patb 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.

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 GC g 4666 and 4667 (RC 733.68 and 73370), inust be regarded as having refused to accept the office, and proceedHo in quo warranto to oust the inciunbent nwyor whose term of 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

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 prosecuting attorney. When the office of prosecuting attorney is vacant, or the prosecnting attorney is absent, interested in the action in quo warranto, or disabled, the court, or a judge thereof in vacation, tnay direct or pertnit any nlember of the bar to act in Iiis place to bring and prosecute the action.
HISTORY: RS 6765; S&C 1269; 36 v 68, 23; GC 12308; Bureau of Code Revision. Eff 10-1-53.

public office, he nmst show not only that he is entitled to the office, but also that it is unlmvfull y held and exercised by the defendant in the action: State ex rel. Heer v. Butterfield, 92 Ohio St. 428, 111 N.E. 279 (1915). The dght of an incumbent of a public office to such oHice cannot be attacked collaterally in a suit to enjoin the payment of his salnry: State ex rel. Strofe v. Vance, 18 Ohio N.P (n.s.) 198, 30 Ohio Dec. 359 (1914). Joinder of parties For 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 law Noncomphance 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 individual A private inditddual may not briug aquo warranto action unless he himself his rightful title to the office. Where relator's only basis for a claim is that he was runner-ttp in a council election, and a resultant vumancy would be filled by appointment, 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 state centr'aI committee of a political party inay not be qttestioned by 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 inditridual as a private utixen onlv when he personaly is claiming title to a ptiblic ofBce. in all otlter instances. snch action nntst be brought 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 to bring an ac5on in quo warranto, is not applictdile to a challenge to u uomnating petition, since plaintiff is not claiining to be entitlecl to a public office nnlnwfiilly held ancl exErcised by another': Marunze v. Board of Elections, 167 Ohio St..32.3, 4 Ohio Op. 2d 401, 148 N.E.2d 229 (1958). Revised Code 27:33.06 einpotveis ;m indivirlnal, claiming in good faith tutd upon reusonable grounds to be enNtled to a public office held :md exerc{.sed by another, to expeditloicsly bring an action in quo war7Witoupon his own inltlative in the name of the.statc. State es rel- Ethell v. llendncks, 165 Ohio St. 217, 59 Ohio Op. 298, 1:3.5 N.E.2d .362 (1956). Onder this sectirnn, relators elected to bourd, :md giving secmity for wsts, tnuv bring ^yno warra> to unst old member.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 action in quo wnrtnnto is fonud in C1C 12:307 (R(; 273:3.116), under whiclt one claimiug title to a publlc office mav bing

Practice Forms General Form of Complaint in Mandamus Conttuning Prayer for Peremptory or Alternative Writ in the First Instance 1, 1S Ohio Forms of Pleading and Practice Fornt SPla

CASE NOTES AND OAG

INDEX
Gnnerallv Audutrtty olpruyecutl Nonpuhlic oflice

Generally Revued Code 2733.07 grants a court discretion to appoint an attorney of its clroice to prosecute an action on behalf of 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 attorney County prosecutor cannot delegate tlte duty to bring a quo warrxmto action against a couporxtion to an otttsicle attorntey until that delegation lias been authodzed uncler RC .30.5.14(A): State ex rel. S:uNni v. Trumbull 1tvp. Volunteer Fire Dep't, 163 Oliio App.3c1603, 939 N.E.2d 938, 2005 Ohio 4903,(2005). Nonpublic office Only the attorney general and prosecutina attorneys have standing to seek a wnt to challenge the nght to a nonpublic office: State ex rel- Hawthorn v. Russell, 107 Oliio St. 3d 269, 8:38 N.E.2d 666, 2005 Ohio 6431. (2005).

PetiHon against person for usurpation of office. When an action in rluo warranto is brongltt against a person for usurping an office, the petition shall set forth 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 the defendant, and also on the right of the person averred to he so entitled, or only npon the right of the defendant, its justice reqnires.
All person.s who claim to be entitled to the smne office or franchise tnay be made defend;tnts in one eution, 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.

2733.08

QUO WARRANTO
in such action requires the respondent to answer on the third Saturday after the retum day, on motion such summons may be amended to conform to the statutory requirements under the provisions of CC 11363 (RC 2309.58): State ex rel. Heck v. Sucher, 77 Ohio App. 257, 32 Ohio Op. 578, 65 N.E.2d 268 (1946).
Defenses Although under this section, the answer may contain as many several defenses as exist, such defenses must also be in llke harmony with the statutory subject of action: State ex rel. Price v. Coluinbus, D. & M. Elec. Co., 104 Ol1io St. 120, 13.5 N.E. 297 (1922). Pendency of another action The pendency of emotlrer action is a bar only when the two actions are between the same patties and for the same cause of action: State ex ret. Maxwell v. Schneider, 103 Ohio St. 492, 134 N.E. 443 (1921).

2733.15

cutor v. Westerhold, 72 Oltio St. 3d 392,,650 N.E.2d 463, 1995 Ohio 86, (1995).
Revocation of corporate status An attempt by private citizens to incorporate as a public humane society is in contravention of law, and a quo warranto action may be brought by the attomey generzil of Ohio to cancel a respondent's corporate status: State ex rel. Brown v. Regional Public Safety Service Corp., 47 Ohio App. 2d300, 1 Ohio Op. 3d 360, 353 N.E.2d 851 (1975).

2733.15 Judgment when director of a corporation is illegally elected.

2733.13
pleading.

Court may extend time for

In an action in quo warranto an order may be made by the court, or by a judge thereof, extending the time within which a pleading may be filed. Such order does not 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.

When an action in quo warranto is against a director of a corporation, and the court finds that, at his election, illegal votes were received or legal votes rejected snfficient to change the result, judgment may be rendered that the defendant be ousted, and of induction in favor of the person who was entitled to be declared elected.
HISTORY: RS 6775; 70 v 176; GC 12318; Bureau of Code Revision. Eff 10-1-53. Cross-Referencesto Related Sections New election, RC 2733.16.

CASE NOTES AND OAG

2733.14 J udgment when office, franchise, or privilege is usurped.

When a defendant in an action in quo warranto is found guilty of usurping, intruding into, or unlawfully holding or exercising an office, franchise, or privilege, judgment shall be rendered that he be ousted and excluded therefrom, and that the relator recover his costs.
HISTORY: RS 6774; S&C 1268; 36 v 68, 15; CC 12317; Bureau of Code Bevision. Eff 10-1-53. CASE NOTES AND OAG INDEX
ConsentCO ouster Disquali6cation from office Fraudnlent reconnnendatlon Revocatlon of corporate status

INDEX Generadly lurisdiction

Generally Quo warranto is the only retnedy to ehallenge the title of a

de facto officer of a private cotporation, and the dght to a corporate office cannot be tested by mandamus or by injunction 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 board of directors of an insurance company is challenged in an action alleging misrepresentation and omission of material used in soliciting proxiesfor such election, it is not error for the trial court to find that the appropriate relief lies in the reinedy of quo warranto: Capri v. Johnson, .32 Ohio App. 2d 95, 61 Obio Op. 2d 93, 288 N.E.2d 604 (1972).

Consent to ouster For ouster by consent from office of councilman, and induction of relator in quo warranto, by consent, see State ex rel. Gluvna v. Kienzle, 102 Ohio St. 691, 135 N.E. 974 (1921j. Disqualification from office

Person 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 Ohio 6104, (2003), Fraudulent recommendation A member of a county veterans service commission who is appointed by a court of common pleas based on a fraudulent and unauthorized recommendation is subject to removal in a quo warranto proceeding: State ex rel. Huron County Prose-

Writ of quo warranto will be allowed to ottst board elected by minority interests, and board elected by votes of executor of a deceased owner ordered inducted into office, notwithstanding violation of by-law requiring notification of cltange of ownership: 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 four persons entitles such persons to be inducted into office in place of the old board of five <llrectors: State ex rel. Price v. DuBml, 100 Ohio St. 272, 126 N.E. 87 (1919). Jurisdiction
Where 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 common pleas lacks jurisdiction over the subject inatter of the action: Hendershot v. Conner, 48 Ohio App. 2d 335, 2 Ohio Op. 3d 314, 357 N.E.2d 386 (1974).

2010 SUPPLEMENT
uy public the .), (ii), and (iii) t perform any er of attoiney n affirmation. juirements of may perform sr of attoxney

3501.90
comply with section 3501011 [350 1OL1] thgh ..rou reasonable accommodation, including the use of
assistive 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.
General7y False statement in petition Laches Pzyor and payee statements Prohitition

aform under shall do both

ordance with is section for tature on aIl nominating nts signed by d Code; book for the question as gn petitions s behalf, at sence.

tion.

3501 .39 Grounds for rejection of peti-

(A) The secret ^ GeneraBy ary of state or a board of elections RC 519.12 aud 3501.39, not RC 3519.16, governed a shall accept any petition described in section 3501.38 board ainst of the thO protest gelections,tinot the a court ^of eommon p eas,s (1) foIlowing occurs: jnrisdiction over the protest: In re Protest Against Jerome A had Revised Code unless ainst of dle written protest ag one made peti the orlcandi- T. Zoning Referendum petition,162 Ohio App. 3d 712,834 dacy, and a held, namingdspecific objections, is fled, a hearing is N.E.2d 873, 2005 Ohio 4189, (2005). etermination is by H one e th election officials with whom the protest is filed that the petition Eal9e statement in petiHon is invalid, in accordance with any section of the ReviSed By significandy overestimating the acreage afected by the Code 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 objections, byd the elecry n considerably rezoning held, and agdetearb^ilation more property than actually impacted: State ex o rel. hMiller DiversifiedLLC Wd HoldL fficials with w e,... th igs County Bd. om v.oo protest is filedthat the petition of Elections 123 Ohio St. 3d 260, 915 N.E,2d 1187, 2009 violates any requirement established by law. Ohio 4980, (2009).

ion 3501.38 ode to the n petidons ded voter's nce of that his section a or other le Revised filed with h division
9eemed to r shall be f section I Code to mowing]y 9on on a d in the division 3501.38 e to the d on the itted an attorriey attorney . behalf, voter, in

(3) The candidate's c

th an di d acyore petition vio- Laches

lates the requirementsbf this chapter, Chapter 3513. of Extraordinary relief was barred on the basis of laches where the Revised Code, or any other requirements estab- the city delayed iling a protest until 119 days after the lished by law. irutiati4e petition wasiled with thity auditor and 56 (B) oth erwis h as Except aft e r te audit e city e provided in division oforceriied the $ petition to the board days of this section or section (C) Revised Code, a board o 3513.052 [3513.05.2] of the elections. The city then delayed another 26 days after the ectior sh all not ons protesbwas derued to alidate State ex rel. City ile an actionfor extraordinary relief: any declaration of can f eI did acy n om in atingtiti El under division (A)(3) of this section aftet thepeonections 123 Ohio St. 3d 439, 917 NE2d 263, 2009 Ohio fiftieth 5523, (2009). day prior to the election at which tlie candidate seeks Ujustified 102-day delay in fillng a protest against the nomination to of$ce, if the candidate filed a declaration sufficiency of the petition amounted to laches znd barred the of 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).

after the date of that filing deadline. y satisfies the requirements of RC

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 is rticul elections may invalidate the petition within fifteen da sdeclaration of candidacy andpetltion of a statewideacandidatea

election of a candidate in a charter municipal corpora- Payor and payee statements tion with a filing deadline that occurs after the seventy- Pursuant 3501.39 3,

(2) If a petition for the nomination or election of a OpimoncNoa2006-004a(2006). and 3501.381, and rejecting candidate is invalidated under division (C)(1) of this , `3' Peflflon if it does not. section, that person's name shall not appear on the Prohibition ballots 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 on prepared, the board of elections shall remove the name of that nerson RC ts 3513.31(I^eTi ^a"r^date was properly certified under f,,,. .>,,. t._n _ . . -^ uV cne extent practicable Temedy: State ex rel. Scherach not available as a in the time remaining before th 1 v e e ectmn. If the name Electtons, 123Lor is nnt Ohio sr aa ose ^, a3Il C ounty Bd, of
1`iOU neIOre tha dav,.rF6,. 04a, 1zu(j9). .__."" 1, zuva Vhio 71_ ___ , , --'- u- pcrson are vnid an.] ^h..n __.

HISTOHY: 141 v Il 555 (Eff 2-26-66); 143 v H 405 (Eff "h^ g^mOt ^ 90i Private 4-11-91); 146 v H 99 (E$ 6-22-95)
Effect of amendments 151 v H 3, effective May 2, 2006, in (B), inserted "division (C)

canse of action for

151 v H 3, 1, eff. 5-2A6. , 149 v H 445. Eff 12-23-2062; ho ahon of the election faw^',

of this section o{,, and added (C

).

mea either of th of the ns violationo llowing: election lacv" ef (a A ny o f theoown g flli types o f conduct in or about a polling place or a place of registration or election:

(A) As used in this secti on: (1) "Harassment in

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, 15:353 FL-Flu. Stat- 51 Illl.-N^. IUI 5606- 1IIIS6I1S Itrl(I ILCS j1 5/I3-I6.1,5/INJ.L LN-13iuus lud. (:nt3c Auu- ^ 3-S ^3:5 KY-KIiS 1 1 17.1-15. 117.?65 Ml-NiCLS 108.537- I65.7971) NY--NY (a.5 ILlec j 6-164 PA-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 is tviitten in on Ii,dlot SG ALI32d 1035. Law Review BturGclc c Takushi: deatL. uf I)t.nald Doel< as .L [>alitieal k^rc Note.31 CAP. U.L. tiec 49T (191)31.

3513.05

INDEX

GeurcJlc Pmtr.vt,e o

id:

Generallv It ts nnt necevs.ur,to pibside swite-in sFace nn piimeutielection btdlots Ini the olFice oF inember of tic stutv crutral committrc of u holitic:J ttartcin Ohio. or delequtu or altornate to the natioinJ cuucmution nf u hnlitical p:uh: but sncli weite-in slmce nnist 6c ItmsideJ tbr tho ufiicc oF ntemher of tlle conuttcentnd cvmmittro of snah politlcal I>:vh-r 19711 OAG No. 7Il-I)1I I I97 OI. ^ TheofAeeufntrnihcroftho conntccentrnlconmiittceufu pohtical parhin Ohio. boink a pnhlia ul}ice, miut Jppear nn the 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[rs cast for t^ligihle mrite-in c'.wdidxtccs c'ml 6e tvno[r'd. 97(1 OAG No 7(I-III I (1970). Protests against wtite-in cxmdidateti Thc prolee't .i, ^stiavt x srcoud tvrite-in nwdidutc Ibr tlje inavor:d race cva.s nut timrlc: SCite r, rrL LcncIi o. (]nimKl Ctu 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 wn local ndt- Ibra Ixntest Ivucrdinr I" fbrv thc huurtl ofvloctinia to challonqc tho c,ilidite uf :i ^rrih-iu r:mdiducv, th'- uiti:d apP" - t l ui li8apltii -J 6c tLe hu u I is Iin:J uba nl all, "dinus of fraud c v'rnlttion- ulmsr uI disc it tiou nr c'lv.u tliai s;;ud nf stuhites nrnpplie:dde IrLul Isrm;siuus- IiC 31 351 :3 Ild.l: Poster r Bourcl of T;Irctiouz- 53 OIiSo Ahp. 3d 21:3, i 06io Of. &I 282,378 Nb:2d 13iI (19-, :1

to he vo[rd fir .)t a,priman= ele^ctitum, eueptprrsons tlc.siring to become joiut c.mdidates for the ofHces of governur und lieutsnmrt gocernor und eseept as othermse prucitlc-cl in section 351:3,051 [351:3.05.1] of the Hctisetl Code, shnll, not later titwi fimr p.m. uf thr seveutr-littlt d:tc bctbrc the duv uf the primalNolcr[irn), orifehc priinan elcctiun is u prc_tiiclcnti;d pritnmy eliction, not Iater than fonr p.ul. of' the .sisticth d:tv heli>re the cLrv of tlte Eresidentlal piimurv clection, file adecl:tr.diuu ulcamdiclaca mld petition uud p.ry the fecs retluil-etl nnder clhisions (A) zmd (F3) of sectirnt :3.51:3.10 of tlie Re\iscelCode. Tlle decl:trntiou of eandichtev and :tll sep:u-ate petition papers shall be filed at the smne time as one instrmnent. When the offices are tu be voted for at a pliniarv election, persons desiring to bcconie jointcmididutes fbr the oFficvs of ,^orentor:wd lieritenmlt guvernor sliull, not later than fom- p:m, of the sccenh-fifth clcnhefore the duc of the prini.uti election, contpk with section :351:3.04 of the Revisecl Cocle. Tlle proshec2ice joint candidates' cteclaration of enndidzec aneI all sepantte petition papers of c:uidiclacies shall be filed at the same time a.s one utsti-umeut. Tlte .secretw,- of stute or a boarcl of elecfious shnll nut accept filr fflinv a declurution of cautliducv and petition uf a pei-san seeking to heconti> a ctmdiclate if' tlntt l>crson, for the sumr election, Il,u ct6reachfilecl a de claration of cundicLicc or a declartrtion uf intent to be :t rvrite-in amcliclnte, or has hecome a cauldifLtte btithe Iillin,L of a cncancsmxler section :3513:311 of thc 13evised Cnde fi)r uuv fecIeral, state, or cotnihu$Ice, if the declaratiou of c:nulidacv is fm- a state or cunnh oflice, or Ibr :ntc nnndcipaloi- tosvnship office, if the dcclarrtion of canclitlacro is filr a mmnicipul or tosanship nffise. If the declaration of candiclaawdecl:ne.s a eandiclctec cvllich is to bc subinittcd tu electors tln-onohont the entire ,stttte, the petition, inclndiuL+ a I>ctitiutt fnr (oiut
cm)didate,s foi- the officrrs of govcnior wnd lientcn.mt ,t;ot:ernur, shull be signed bv at Icast one t6ousttnd qnelified elector-s wlio ine iueinl>ers of thc ti.unc polit ic.J partc as tlic candidatc ur joint candidates, antl t6c clecLuation of cundidac^and petitinn slrtll be filed witL the 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 tltrre thonsund olcctoi:s. Fecept as othcnvisc l)rmided in this hwagraph, if t6c drrlwution of ccuuGducs is uf unc thut is to hr

3Jr1.3.QJ~ Filing of declaration of camdidacy xnd Pclition; protests; ccrtification of hnllot forms. Exc6 lcrsun dnsiring Io hvcuuic n cmldidtdr liir a party naninutiou or Inr rloctiun to.m ufftcv or hositiun

snbmittrtl unlc to clectorv withiu u tGstricC pulitlcal subdivi.vLou- or Iwrfiou tlicrcof, tht^ Iletitiun s6;tll ho si}[nccl hc not lesa^ fhan lifh(Itt:diflcd electorx 'Ndio ure nien)bors of t6e ,swur politicul pwts' a.a tho liolitical pwtcuf a-liic6 th" c:uitlitlatc is mcinbri: If dic clrclcu.dion of cantlidctc7is for ptirLtuoniintttinn :rs a cwiilithdo for montber of ILr lioklntivv mithurih nf a iurtnicip.d curtwration clrtted Itc wwd, thc Ixtition sLull I)c ,<itiuod hv nulIr.sv tLan hvrntv-livc' tlrntdificd clecturs trlm art, iuomhoi-s of tLc polilicttl I>arte nf Mucli tlir cantlitltdc iv;t irtnbcr.
No suc6 hctitinn, cscopt tLo I^rti[inn ti ac`.wditlctcv thn[ is to Lo snbiui[totltn cloc[nr.v thiunqhunt [6t cntirr xtatc, ,alrJl hc uccctrir(I fnr filiug if it aphvurs tu coutuin

 3513.05

ELE,C'1'IUNS

130

1J

on its faoo si, I 'natnres oimore than dnrr times tlie iuiniiwuu mioilier ol n'wnatm'cs. Whcln u petition ol a caudidate h;u been acreptcd fnr Nlqt; bv zt hoartl of clcctions_ the petition shull not he tlecmrtl invalid il. ultou verificatiou nl.siUandisres cont.dnrd iu the petftinn, the bomd of electious fiodR the nnmbor ol sit;natw'es ucceptod e\ceeds tlircc times the uiniinnno umuber nfsignatures rcyuircd. A board olf elcctiotis nmv discontinne verifiing, signativc-s ou petitinns wht-n the mmmber ol verified sifmtttnies eynuls the miniumni n'<psired mmiber of <1nuNfied sil,nuitnres. 11the decltnution ofcitndidacr deelare, n c,mdldicv fix parh^ notninatitin or fur election as a a.mdiede of;m interniecliate or minor partp, the mininnim uumber of siu 'nntnres on .snch petition is onc-hulf the mhilmmu Inmober provided in this sec6on, except that, when the cmididacy is one 1i>r election as a memhe- of thc state cenirnl conmtittee or the c tnhcentral crni unittec of a polific.d party, tLe minimmm nrnnber sLall he the sanie lor an intermedinte or niinoi- part.u fn v major parh^ If a declaratlon ofcmidiclacyis one for electfon as a inentber of the s-tate centi-al connnittee or the comth^ centi,tl conunlttee of a political partt: the petition shall be si,ied by five qutdified electors of the district_ conntv, ward, township, or precinct withni which electors mav vote for sucli candidate. The electors sir,miul; suclt petit5on sltall be membeis of the s<nne political parh^ as the politic.d party of m=hich the cmdidate is a member. Fo- pnrposes of .signing or circnlating a pet'ition of cancLdnex- for party nominxtion or clec5on, nn elector is considered to be a mei nber ofapolitical parh- if the elector voted in that pmtvs primanelection within the preceding hvo calendm- vews, or if the electoi- clicl not rote in an}' otlher party %s prim.vy election within the preceding two calendar vears. Ifthe clecluration of candidacv is of one that is to be submitted only to electors within a comity-, or withinka district or snbdiNision or part tliei-eof smaller thmi a connh; tlrepetition shall be filedN.-itli theboard of elections of the counh. If the declaration of candidacv is of one that is to be snbmitted onlp to electors of a district or subdivision or part thei'eofthat is situated in more than one countv, the petition sliall be filed with the bomd of elec45ons of the cotmtv ^vithin which the major port9on of tlte popnlation the-eof, as ucertained bv the next precediug federal censns, is located. A petition shall consist of sepmate petition papers. each of which sliall contain signatnres of electors of <mlv one comrtv. PeBtions or separate petition ptpers containing simiattues of elector.s of mrn^e than one conntv shall not therelrv be declared invalid. In ca,se petitibns or separate petitlon papers contuininy siKnattve s af electors of inore thxn one conntv are filed, the bomrl slmll cletermine the cronntc frotn which the m.qorih, of signattn-es came, and onlv signahnes foin snch conntv sltall lre colmte,d. Signatm-es f4om nu other connty sliall be invalid. Each separate pefitlon paper slmll be eirclilated bc one person onlv, who shall he the candidate or a joint candidate or a meiiiber ol the same political party as tlte candicLxte or joint candicttes, and each separate

petitiou palxl .sh:tll ie "Iov,-rnod kthe rnhs net forth in scrtion 3.501.38 of ihe Re^isecl Codc.
'Pho zccrehtrv olstute shall prowpdhtrwiswit tu each boantlanchscparutr pctitiuu pttpcra ofite li potition ll uccuml>auviyi u docl.untinu uf t:uuliducv Iilyd saith the secmt.u'c ol stute a3 hurltort to coidain si,c,niahin's of cleotois 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 separ.de pctition papers ol cach petitiou acrumpunving a

dcrl:mttiou ofc.nldiducv liled witli it a,v pnrport to amtaiu si,ymutures ol rlr( Wrs of the cumihof each snch hourd. 'Che board of a comihNvit6iu which the major portion ol lhe popnlutionnfa snl)divuion, sitnated iu more t11m1 one cnnht is locatrd, sliall prompth-transmit to tlie boilrd ol caeh other county withiu %N'hich a portiou ol stich suh<lmsiun is located such .cepuratr petition papers of cach petition accompanriny+ a declaration of c:mdidacc Illed with it as pmhort to contain signatnrcs of elector.s of the portion of sneh snbdivision in the eonnK ofeach such hoard. All petition papers .so transmitted to a board .wd all petitlrnis accompmnin,^ de clurtLLions of candidacv filed s+ith a hu:nd shall, nndcrproperre,^d;dions, be open to lntblic hispecfirm imtll fonrp_m. of the sevenfieth day before the dmof tlie neat prlmm-y electiou, or if that nea-t primm-v election is apresidential piim.n^ election, the fifh^-fiftli dnv befise that presideiBal piimary election. Each board shall, not later tham the sixtveighth <lay befbre the dmof that prinuu-N clectlon, or if ehe primmrN election is apresidential printarNelection, not Ittter thim ttie fifh third daN hefore sndi presidential primarc election, exaniine and dete nnnie the vulidit< orinval9ditv of the signutnre,s on the petition papers so transmftted to or filed NNith it.unLshall retnrn to the secretml of'atate all petition papers h:msmitted to it by the secretan, ofstate_ togethe' with its certificst6mt of its deterniinafion as to the v,diclitv or imalidih+ of signatmes tltcreon, ancl sh.dlretnrn to each other board all peti5on papers transinitted to it b\, snclr board, togetherwith its certilicafion of its dcternyination xs to the valiclihoi- im-ali<lith of the simnattnes tliereon. All other mutters aftectinE the s'abdihy or invttlidihof snch petitiorn papers shall be detenuined bv the secretmnof state or the board with svhom sneh petilion papers were liled. Protests afiainst the cmtdidacm of anc peison filin^ a dccFaration ol cmididac for psrtc nomination or for election to xn office or positlon, as proxitled in this section, maY be filed bv auy qtmlified elector who is a memher ctf the sante political partus the candidate and who is eligible to vote at the prin,uv election for the candidate N+bose declaration of cmididamthe elerctor objects to, ol bN the tontrolling cnunnittce of that political partv. Tlteprotest slsulI be in writin^, and shall be filed not later th.m fonrp.w. ol the sixh-tbnrth dav before the dav of the priman election, or ifthe piimwrN election i.s a pre.sidcntial pimaiNelectlrnn, not later thLut four p.m. of the fortv-ninth dmbefore the clnc of the^ presidential prinuN election. The protest shall be filed Nndth the cleotiun oflicials Nvith whoin the declaration of candidacv and petition wa.s filed. Upon

a ti fi p d

c t

A-^,5

30

131 PRIMARIES; NOMINATIONS

the filing of the protest, the election officials with wlroni it is filed shall promptlv fix the time for heaing it, and shall forthwith ;nail notice of the filing of the protest aud the tune fixed for hearing to the pe.rson wllose culdidacy is so protested. They shall also forthwith tnnil notice of the 8nie fixed for sncll hearuig to the person who filed the protest. At the tinie fixed, such election officials s1mtl hear the protest and determine the validity or invalidity of the declaration of canclidacy and petititm. If they find that 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, ot- has not fillly complied with this clmpter, ttle candidates declaration of candidacv mld petition shall be determined to be invalid and^sh.ill be rejected; othelwise, it shall be determined to be valid That determination shall be fittal. A protest against the candidacy of any persons filing a declaration of candidacy for joint party nomination to the offices of governor and lientenant governor sh.ill be filed, heard, and determined in the sane nlanner as a protest agafnst the candidacy of any person fiting a declaratlon of candidacy singly. The sec-etary of state shall, on the sixtieth dav before the day of a pimary elecHon, or if the primary election is a p-esidential primaty election, on the forty-fifth day hefore the day of the presidential pimary election, celtify to each board in the state the forms of the official ballots to be used at the pri;naiy election, together unth the nanles of the candidates to be printed on the ballots whose nomination or election is to be determined by electors throughout the entire state and who filed valid declarations of candidacy and petitions. The board of the most populons county in a district comprised ofmore than one connty bnt less than all of the coImties of the state shall on the sixtieth day before the day of a p;imary- election, or if the primary elect3on is a presidential p;i;nary election, on the forty-fifth day before the day of a presidential primary election, celtify to tlte board of each connty in the district the names of the candidates to be printed on the offieial ballots to be nsed at the primarv elecHon, whose nomination or election is to be determined only by electors witilin the distiict and wllo filed valict declarations of candidacy and pefitions. The board of a connty Ncdthin which the major portion of the popnlation of asrbdivision smaller than the county and sihlxted in rnore than one countv is located shall, on the sixtieth day before the diiy of a prtina;y election, or if the prinlarv election is a presidential primarY election, on the forty-fifth day before the day of u presiclen6til prinlary election, certify to the boarcl of each county in which a portion of that subdivision is located the names of the candictates to be printed on the official ballots to be used at the prima;y election, whose nomination or election is to hedeterinined oniv by electors within that sttbdivi,sion and wllo filecl 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 H 1062(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 (Eff 12-2993); 146 v S 9(Eff 8-24-95); 148 v H 157 (Eff 9-20-99); 149 v 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 478570;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 tnade minor 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 question or isstte, RC 3513.10. Fornl of declaration of candidacv; 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 independent 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, 8550 FL-Fla. Stat. 99.092, 99.095 IL-10 ILCS 5/7-10 IN-Bnrns Ind. Code Ann. 3-8-2-1 et seq KY-KRS 118.125, 118.165 MI-bICLS I68.5.53 NY-NY CLS Elec 6-1:30- 6-132, 6-1.44 PA-25 P S. 2872.1, 2872.2 Researc6 Aids Declaration of cmndidacy: 0-,jur3d: Elect 75. 84, S6-90, 03-95, 262, 2&1, 265 Am-Jur2d: Elect 2.35-237 ALR Mandatnry or directav character nf.sta6rtory prnvision as h; 6me of filing cundidate's applieation or certiflcxtte of noinin:t6on befk)re Frimarv or election. 72 A.L.R, 290. NonreGistration as affectlng one^s qualificatinn to hold public officr. 123 A.L.R 1117. Residence or inhetbituncy within district or other polifical unit for which lie is elected or appointed as a neces.smv gnafification o6 officer rncandidatc, in absence of express protdsion 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 -nnbdivdsiou snrdllerth.m u coimhwithiu thc mcanni};of this thun oue ollicv in the mne ckr6un. 94 AI.li3d 557j

CASE NOTES AND OAC

INDEX

C^nrwit^tlinn,dih CnurJlv Caudid.irr lor n Cw^did^^ov ^^I' Cirul:ei^r .(:nllvirrid itt:Irl< De:ItL , d awdldvtr I)ntv nf Il.c ii ia,urou )al,etlu.. pnn'oti Fulor regimrntluu ol cwJidatr
Ir.Jse ny;istr:eirni iL f rirzd,ttnr

sectiuu dc.^'pito t6t-wa, Ir.,phic:d arruiut-luded iu secL district, wirl ull cuudidates ftling tlcclarutioua of cantlitluc)' Ibr nominat'iun hv clectiuu to the nflict- ulreprretutul'ivt- ta the ,re-ner:d it .scinlilc must lile petifPaur eniitainbt{ niffieient cij;nttbtres to meet the re,^uireinents u1thut .vectlou a8 they upplvto r.wdid:LLes'tu 6e e t-ctc^d Iium :t comth' ur u cnuL+resyimwl dish9ct sm;dlor tlr.tu u connh: 1966 (lA(: Nu. (i 96(i)-

Imou^p:'tiblr Jts^Lu:^n" nI ut rtuI JiJLuiI

ludicinl ollieis f nlll^ lal IY91t'\\

Candidacy for mulHple offiee.v Tlie .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 uoB wit6tlruvvm, a decdxrutlon of c:mdiilucv for uominutiou to the ofOce oiUnited Statns reprosentafive at tlt(. vamtprinruv cle.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 arrny A decl u dton tf c'm[hd v lot tht office of tomti, t n tneer mdan tccompun'ing pttittonpreuutttibvoronlnhtlfufa petson in thc umv, ntn uot Ic tl6 bt itjectad fw flling metok becaiue an uidei of the secret.v of Nvw piohtbits a persan in die armv f(m) Lecrmiinn a cmwdidate: 1944 OAG No.66'3.5(IcJ44).

vl^l ! I I I f,^l t
Ne i ti liar u ott dk I i L Itrq t rutal7vrriw<ILdmr firsidoucv nTluirrnirnt

SlRning of wnrv- tlrm onr prtitLin Inr St:Lnfl:vll 151 r( '\It\\' Il\ I)II.LIYI SvvitrLing of panirs
'lima litr iuvalttb,ition

MRu

'17me lor rcmuv:J fruw 6.dloi PJrito-in cnndiJatr

ConstituHonaGty Ohio.stututes seel.ina. intcr alia, to prevent'raiding" oone partr bv mentbers of arrodfer parh, mnd seekini?, to preclncle can(lidates f)roni ulterinq t9i eir political pattv affiliati ons for opporttmistic reusons, did not iucidiousk discriminate so as to infrioqe USC,:onst amend I and X1V: Lippitt ,- (:ipollone, 60 OhioOp.2d:3fiJ. 337 P. Sapp. 1405 (N.D. Oliio 1971). Generally of Beeised Code :3b1.3-05 re<pums that the declaration of candldacc and tdl separate peti5on paper.s be filed at tltesame time as onc ins'tnunent: State e, rel. IvlcDlil}an ^c Aslttabnla Ch'. 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. Because appellee did not File his m:cster form at tLe sante time as he filed hi.s part -petitions svith the bowrd of electious_ lie was not ertitled to h:tce Jris nwne pLued on the ballot in the priman election for mnnicipal judge: State ex trl. Senn ,: Board of Elections, 51 Qhio St. 2d 173.5 Oloo Op. 3d 381, 365 Nl E.2d 879 (1957). A candidate fornomfnation at a prinuun' eleMion mac n"ulce , as in:mv separate cleclaration.a of candidacr as there are separate petition p;q>ers. sn lonr as there is no conflict: State e,, rel- Kav c. Board of ElecBtrns, 112 OlLio App_ 4 15 Ohio Op 2d 29fi 167 N.E.2d 112 (1960). A wut of mtmdamus vndll not be issned vvlLere the bnard of elections coustrned and applied tlru sectlon in accordance with its uahv;d uncl fimdmnent:d meaning: State es rel. Burstaller v. Bom'd of Electlmvs, 1.49 Ohio St 19:3. :36 OILio Op . 541, 78 N,1.2c1 :352 (194S). U n lt r this section t6e determfnntinft of a bo:nxl nf clec4ions whether mlator hud fnllv complietl vvdtlt the Imv relatin,k to primmy elections ;md wllether his decltu;tTion of canditlacG was 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).

-Collnternl attack W6ere tlie circulator of .t autdidnte:s petition is reni.stered orith tlie bourd of electlon.s aud the recorcls ofthe bo,nd of elec5oox represent snch omdator to he a quali fied elector the quLdiAcaHons of such ciretdator a.s a qnLdified electur cunnot be attacked collaterulk in a proceedin. 1, bef6re tlie bnard of elecfions based npon u protest to the petition eo circtduted far and filed bc .snch c;Lididate: State es rel. 13ass v. Board of Elections, ,1.55 Ohio St.:34S, 47 Ohio Op. 201. 105 N.E.3d 414 (1952). Death of candidate A boarrl of elections is withmrt anthorihin l:m, to remove or caase to be renioced itont the hallot tn be x<vted ,tt'a printiuv election tlte uume of't decrsed peaon vvhose dezrth occtrrred uftar 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 elecNon Besised Cocle 3501.11 rerlnires boards of elections to review esamine and certih'tlhe sufficiency and x^tltdill of petitions mtd nominahng papers. RC 351:3.05 provide.s for protests ol declmations of eandid:te, filyd in ptimzuv eleetimis und declams that the decl.sion of a board of' eleci'ion,s as to a protest is flnal. A stntuto' prrrte.st is:m adeqnate trmedv thctt will preclude is.sn:mce of'art eKtttordinanvTit. Therefare, n re}ator must file aprotest on telerant issues before biintn,ing un action for un extraardinaewtit based on tho,se isares: State ex rel. Shumtde v. Pottare U.N. 13d. of Election,s- 64 Ohiu St. :3d 12, 591 N.E.3d 1194 (1993)_ Election protest Thet'e is no mmnnei pi escrihecl br stabute in "hich a bo;nd of elccfions nnt conduct u ltcariqg, un u protest to a deelarat'ion of cmcliducv and petition for noirrtnatiou ut a pritnarv eJectiun. Auc reasontdvle investigati<m condncted in [;ond fuith satislfes the stntntorv recpnreinents tbetebc State c, ml. h:n' z Board of @:lec4ion.a. 11_ Oliio App. 4, 15 Ohio Op. 2d 296, 167 N.6..2d 112 (1960). False regis67ttion of eandidate NVltere 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 he was born in Ohio, wherens, he was born iu Ireland, und, upon heaiing, it is established that his pa'ents immigrated to An>ericn about the time he was born und that he could not cletermine with ceitaintv wbether he was born before or after their mn'ival in Ohio bntthut h9s honest belief at the fime of his said registration was thathe w.u born in Ohio.md itis fiirther estublCshed that his futher becvune a nattualized citizen of Ohio in 1892 when the candidate was seven vears of .iee, the botnri of elections is rcqtured to overrule the protest and sns'tain the declaration of cancliclncv: Shtte ex rel. MaC)owan v. Row'd of Elections, 157 Ohio St. 428, 47 Ol>io Op. ;323, 195 N.E.2d 639 (19.52). False registration of circulator Where the petition of a candidate for the office of clelegate to the national conventlon of a political part' is cireulated bv one svho is registered svith the honrd of elections u.s an elector with tlte reqnired re.sidence qtutlificntlons, and the candidate whose petition is so circulated Ims no knowled,ge of facts which would disquulifv the circulator of the petition and relies upon the registration records of the board of election.s as indicatinn that snch cireulatm' is a qualiffed elector, and the petltlou so circulated is filecl as required bv Inw at least ninetv days prior to the date of the prinnmv election, said petiHon cmnot thereafter be rejeeted by the board of elections and the candidate involved therebc be di.sqnalified as a candidate through a decision of the board of elections, mude upon a snbseqnently filecl protest that the circulator of the petition had mude false nnd nntrue staten>ents as to her place of bitth and citizenship in connectiou with 1>er ie-ish^adon: State ex rel. 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 person A person cannot lawfnflv file, in connec8on with the same pri>narv election, declarations of cnndidacv to become a candidate for nomina8on to two or niore incompatible offices; and, aonseqnentl}, a boarcl of electlons shoudd rejeetaseconcl declaration of ctmdidaay of a person >vho has already filed a deelaraCon of crmdidacv in connecfion evith the same primary election, if s>rch second declaration of ctuididacv is for nominatton to m> office >vhich is hncompatlble svith the nue desi(,n>ated in the flrst 1948 OAG No- 2922 (1948). Judicial ofHces Neither pnblic policv nor electirni laws were v9olated where a candidute withdrew a precinus'Ivi cerh'fied petitinn for a court of appeals ludoship xnrl Rlerl u petition for a comn>on pleas Indgeship State ex rrL O7onnell c Cuvahog, C;h Hd: of Elections. 1:36 Ohin App. 3cl 584, 7:37 NlE.2d 541 (2000). Judicial review In view olthe mancLtte of the Ic islative braneh of the govenment in thi,s section that the decision of u partlc,Jar hoarrl or anthnriRshtdl be finul, the sttpron>e crourt h,tv nn ight to <tttempt to set aside a deci.sion nmde bv a bmud of ielectiona where fimrd or,Gross irre^m, darih has n"t intervened. This is ptrtrc>da>Iv bi>e where a purcl>political qnestion is involved: 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 vo6ng residcnce of a c.mdidate svill not be dishirbed bv u coint nnless the eeidcnee befhre tbe board wits snch as to re^fnire as a m,ttter of I.nv a drtennina6nn that the candidntr, voting re.sidenm wtu not as statrnl in his doclw.ition of candidacv In other wnrd.s, if there was snhstantiul evidence to vastWn that decision, the deci.siun of tLe board must I>e xnsteunod. In soch an iustancr>vhere tben-is no cluim of anv frand or curruption on the pait of the board, this court cwmot say that the board

3513.05

abnsed its di.screfion: Sttte ex rel. Klink v. Eyrich, 157 Ohio St. 1338.47ObioOp.198,105 N.E.2d 399(19.52). In the absence oP finud or bad fafth, the courts maY not overnde a finding of a board of elections, having jurisdiction of the subject inattet to the effect that a declaration of candidncv and peti5ou of a candidate for nomintion to a public office is valid, where no protest- agiinst snch declaratlon und petition was filed w4th such board within the time required bv .stattde: Pierce v. Brushart, 1.53 Ohio St. 372, 41 Ohio Op. 398, 92 N.E.2d 4 (1950). Most populous county The phrase_ 'most popnious county of such district,` as used in RC 3513.95, refers to a couuty not wltollv situated in the dishict, where the portlon in the disttict is most popudons: State ei re1. Clantpittv. Rinwn,165 Ohio St. 139. 59 Ol>io Op. 161, 133 N.E.2d 369 (1956). Nomination requirements The signature of a ean(lidate on his own no>ninalling peti@m1, as a si^>er of that petition, cannot be included in determinfno whether sncl> petition contains the >nlnimmn ntunber 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 111 1979). The necessitv for tl>e statement in the circvlators affidavit as to hfs political affiliation is indicated by language used in this secflon requiring the petition ci rciilator to be a member of the same political parN sis the candidate, and by' the form of the nonrinating petition paper as contained in RC .351.3.07: Stateex rel. Feim>.son v. Brown, 173 Ohio St.:317, 19 Ohio Op. 2d227, 187. N.E.2d 890 (1962). Probibition Prohibition is an appropriate proceeding to prevent a board of elections from placing a candidate's name on a ballotwhere sucl> nune inav not lavvfullv be placed thereon. In a prohibition proceeding, nohvitlvstanding this section that the determinttfion of a hoard of elections as to the validity of a decaarution of candidaey ".shall he final," a murt may in effect ieverse such a decfsion where the tmdisputed fncts are such as to require a clifferent decision us a inatter of law: State ex rel. Iltgin.s v. Bromvn, 171) Ohio St..511, 11 Ohio Op. 2d322, 166 N.E.2d 759 (1960). Protests generally The boaul of electionSClid not abtcse its discrefion or clearly disregmd applicable law in clenying a protest to a candidates eliglbiliN for t'he office nfcoironer: State es rel. Walls v HarcGn Ctv. 13d.Off P:lecfions, 156 Ohio App. 3d 55 (2004). Retnedies The cehicle for challenfdng .t canrlidates qntJifications, p u tici dm-Iv reside ncv; is a protext. An eleetion conte.vt mav not he nvedusavchiclefi>ras.sertinganw>tfinelyprc>test:Portisv. Smnmit Cty- 13d. of Elecfions, 67Ohio St.:3d .590, 621 N.E.2d 1202 (199.3). Revised Cnde 3513.65 e.sttblishes the statutoiy remedv for proseceti ng a cwididaqv for partv nominxtims. A pttrtv who ignores this remcclv cannot later obtain relief throneh a mand:unns action vicel:iqq to reqnire the board to declare the eleckd candidatc i eemdidae"void and to (nmpel the board to issne a certllicxte of nominntion placing relator on the ballot: .Stute cs rel. I,ippitt v. 6d. af E:lection.s, .56 Ohio St. 2d 70, tll 06io Op. 3d 193..341 N.It.2d 1129 (1978). Requirements for candidacy I'ur,snunt to IiC Q(l :351:3.05 and .351.3.26.1, a hoard of elrctinns muy nntcerfifvas vulidthe petition ofa candidate for conntv office who doe.s not reside in the connty in which lie seelcs offiee: OAG No. S4-025 (1984).

 3513.05.1
Re.sideney requiromenl

ELE(;T1ONS

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 Imrtr at7ilialion ond srhetLr-r t6er svem rtl3isternl av elrrlurs, Ilu rlcini ailetl; t6e proteetuiN svrrr tluulilicd to lilo u lxotcn'I mider ( 111lulit^. Cotle^ Auu ,.51:3.115 6 cuixr tLev tarre meiolx-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, -Ohiu St. :!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 Ar6o Iiles e pctition ta nm for cnnNr oflicv inust Iw u m.sidcnt of the ouunN. TLvrc is. liosrerc i no >,etueml ittlinrrnitut 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

[ 3513.05.1] 3513.051 Connry

central cnnunittec may determine that candidale.s for committec need nof file petiHon. (A) Tltt- cumtt\vcntrol cowuiittoc o( u ltulitical
hurts' io it p;trlicnlot cunuhniav tlcteroiine, uot Ialer t61m uuw Innidn-d hvtvhdacs prior tu Ilir ucct priunm eltrtiou ot whicL c:mdiduten linmwiubor oltllr cunntv codrul conmiittcv are t-Icctcd, Ihet oac6 Iteixou dlsirin,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 roqtirrcl llc 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' xn deterniiues, cuch pers'un desiring to hecvmio n c-:mdidute for elec6rnl as e metnbwr ol dtc connta ccutrnl canniittee of th;tt pctrtriu tlmt cunnhis rnut retlnirrtl to 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:J

An electnr nnttsif,n titr pt-titlou wLic6 uccvnipnniv.e a decluration of cmtdidacc of morc thun onr c:mclidate ofvnch pers'owfs pulific.d parh' for a partlcnlur cnmlh oflicr: 1541 OAC No. 1983 (1940)- [1938 C)AG p. 6S4, aspiooeJ ancl follmved] Standard of review by bom'd A boarcls recew of a oaudiclacv nnder IiC 1 351.3.05 is limitetl to RC: C:lrtpter :351.4. It does not iuchidc- possiLle vlolations 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 1359 1998). The stmtdard ior resieving technic:J defects in decluratlan of cantliclaev aod peGtion pape's is sv6ether tLe defect emdd etnae a.sig-lier to be cleceived or mi,slead: Stutc ex rel. C;reen c'. 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 vqt RCVf} 351:3.05 anc1351:3.19.Tlnrtsvheream:n'ori.selected,t ,t membe' of one flarh- bnt Pnbliclv ss9tches to anot6er flmty and cotes in its primaries. lie is 'xffiliated'scItlt the secqncl parhfor 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 d of electlons mey iiot innalfdate a decdara5on of emididacT or nominnt'vig petltion after the fi%eth dcq' 6efore u primun' election: State es rel. 13arbarger c Cm'aho,a Ch'. 13d. of ' Elections. 75 Ohio St. 3,1 44, ffl N.f;.?tl GBJ (-1996). Titne for removal from ballot An acfion seelting to hnre a jodfciul emtdidate remoced froin the ballot based on noucrnnpfimnce cvith IiC: C 3J01.01 was not timelv filetl porsutmt to tiC 35111,39 and 3.51.3.0.5. \Vhitmau 1-. tlwniltoo (;h-. l3d of Elections, 97 Ohio St. .3d 218, 300^ Ohio-5cJ3:3, S78 N13.9d 33 (2003). Write-in candidate Whem there are no name.s printed nn the h:dlot for tm offitr at a f>iinwrv clecfion, u wiite-in candidnte recrivint; the inost votes frnthnt of4ice who receives more ^"'tes'tLun wuiJd 6ir--e been rcqiured to iwvr Itis oame Ininterl on the prinran 6allnl' pnrsnaot to RC: 35113.05 is entitled to hncr hi.s nume fllaeed 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).

purh- ill a pen-ticnl:trcomlh6us deten i iined pneen.nit tn divi.sinn (A) of this section thut each per,sou clo.siting to become a enntlidate for electiou ac u mrmber olt)ie uonntccentral coimuittec of th;tt pmtc in thnt conntv is not reqnned to Rle a petition ty.s reynirecl bc section '351:3.05 of tltc Hecised Codc, t6e cumlhcentrnl conunittee of thut political parhin that colmhrnav snbseynvntlv detennine that eucL petson dexiriuj; to beconte ct cundidute for election us- a niember ol' the connhcentiul connnittce of that p:uiv in thut connb slydl lile thut petition. Tlte conutvi central cnnmlittee shall tnalce that cletermin:dion not luter tlmn one hnndred hventv days plior to tlle nrrt prim,unelection at which cundidates for mendber of the connto central comwittee ure elected. Aftertlle committre nrukestlmt determina6on, etuh person desilin^ to hecnnlc' ^a cnnclidate for election ns a member of the cunntvi central conunittee of tLat Inutc in that comtth' .shall file the petil3on retlnircd hr section :3513.05 oltlle Recised Code mxl shall meet all other applicul>le reqnirements of, 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 rrobibitions concerning seeking tnore than one office or position at sarne election. (A) No person sholl scelc nonlinatiou or clection to mw of the follos\drng of}ices or po.sitions at tlie scunr clec8on bv filing u decluratiun of cnndicLuN mtd petition, 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 bc the filling of aa sucancptnnder ,strtion :351:3311 or 3513.31 olthc Revised Codv: (1) Tvo mmurc .shttc ufice.s: (2) 7lvo or morr crountv ollicY-s:

PRIMARIES; NOMINATIONS
ruty ates tical later nary unty esir^r of that ired not n. If y so nditral ired ;hall that tical t to g to the ty is tion rtral may y to the inty ttee one tion ctr-al that anitral the sed snts

3513.05.2

nomination is a federal office, tlre secretary of state shall deterrnine the date on which the person first (4) A federal office and a state or county office; sought to become a candidate for each of those offices (5) Any combination of two or more municipal or by filing a declaration of candidacy or a declaration of township offices, positions as a meinber of a city, local, intent to be a write-in candidate or by the filling of a or exempted village board of education, or positions as vacancy under section 351:3.311 of the Revised Cocle. a mernber of a governing board of mi educational Ttie secretary of state shaill order the board of elections service centerof each cowrty in wliich the person is seeking to appear (B) The secretary of state oi- a board of efections on the ballot to disqualify that person as a candidate for shall not accept for filing a declaration of candidacy and each office for which the person sought to become a petifion, a declaration of intent to be a write-in candicandidate after the date on wlrich the person first date, or a nominating petition of a persou seeking to sought to becoine a cmrdidate for any of those offices. beconie a candidate if that person, for the same If the secretary of state determines that the person eleetion, lras already filed a deelaration of eancllchrcy, a sought to become a candidate for more than one of declaration of intent to be a write-ui candidate, or a those offices on the same date, the secretary of state norninatlng petition, or lias beconre a candidate sliall order the board of elections of eacli county in through party nomination ut ai primary election or by which the person is seeking to appear on the ballot to the filling of a vacancy under section 351.3.30 or disqnalify thatperson as a candidate for eacli office that 3513.31 of the Revised Code for: would be listed on the ballot below the highest office (1) Anv federal, state, or cronnty office, if the dectafor which that person seeks nomination, according to ration of candidacy, declaration of intent to be a the ballot order pi-escribed mider section 3505.03 of write-in candidate, or nominaturg petition is for pt state ttie Revised Code. Each board of elections so notified or countv officc; (2) Any municipal or township office, or for member , shall vote promptly to disqualify ttie person as a

(3) A state office and a connty office;

of a city, local, or exempted village board of education,

or for member of a g_overning board of an educaflonal service center, if the declaratfon of candidacy, dechvatfon of intent to be a write-in candidate, or nominating petition is for a municipal or toumship office, or for member of a city, local, or exempted village boai-d of education- or for member of a governing board of an educational service center.

candidate in accordance with the order of tlie secretary of state.

r to me etiite, ate by or

(e) If each office or the district for each office for which the person is seeking nomination is wholly within a single connty and any of those offices is a Federal office, the secretmy of state sheill notify the boardof elections of that county. The board dier shall vote prmnptly to disqualify that person as a candidate for (C)(1) If the secretaiy of state detei-mines, before each office that is not a federal office. (d) If one or more of the offices for which the the davofthe primary election, that a person is seeking nomination to more than one office at that election in person is seel.ing nomination is a state office and any of violation of division (A) of this section, the secretary of the offices for which the pei-son is seeking nomination is a federal office, the secretruy of state shal.l order the state shall do on.e of the following: board of elections of eaclr conntv in which the person (a) If each office or the clistiict for each office for is seeking to appear on tbe ballot to disqnalify that which the person is seeking noinination is wholly within person as a candidate for each office that is not a a single ewnnty ancl none of those offices is a federal office, the secretary of state shall notify the board of federal office. Each hoard of electlons so notified sha.ll vote promptly to disqualify the person as a candidate in elections of that conntv. The board then shall deteraccordaiice with the order of the secretaiv of state. mine the date on wbich the person first songht to (2) If a board of elections determines, before the become a candidate for each of those offices by filing a declaration of candidacy or a declaration ofintenttobe -day of the primary election,tlrat a personis see-ldng nomination to more than one office at that election in a write-in candidate or by the fllling of a vacancy under violation of division (A) of this seetion, the board shall seetion 351:330 of the Reviscd Code. The board shall do one of the following: vote promptly to disqualify that person as a candidate (a) If each of}ice or the district for each office for for each office for which thc person sought to be.come a candidate after the clate on wliich the peison first wliicli the person is seeking nomination is wholly within that county and none of those offices is a federal office, sou ght to become a candidate for anv of those offices. the board shall clortermine the date on which the person If the board determines that the person songhtrto become a candidate for more than one of those offiees' fii-st sought to become a canclidate for- each of those of8ces by filing a declaration of candidacy or a declaon the same clate, the board shall vote prnmptly to ration of intent to be a write-in candidate or by the disqualify that person as a candidate for each office that filling of a vacancv nnder section 3513:30 of the would bc listed on the ballot below the lrighest office Revised Code. The board .shall vote prornptly to disfor whieh that person seeks nomination, according to cpxalify that person as a candidate for eaclr offlce for the ballot orcler presciibed mrder secBon 3505.03 of 9ie Revised Code. wliich 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 deteroffice with a district larger than a single connty and ininesthattlrepei-son.songhttobecomeacandidatefor none o4 the offices for wliich the person is seeking iriore than one of those offices on the smne date, the

 3513.05.2

ELECTIONS

136

board shall vote promptly to clisqualifv that person as a candidate for each o$ice that would be listed on the ballot below the highest office for wltich that person seeks nomination, accorcling to tlre ballot order prescribed nnder seceon 3505.03 of the Revised Code. (b) If one or inore of the offices for which the peison is seeking noinination is a state office or an oflice with a district larger than a single county and none of the offices for which the person is seekjng nomination is a federal office, the board sliall notifv the secretary of state. TSe secretary of state then shall determine the date on which the person first sought to become a candidate for each of those offices by filing a declaration of candidacy or a declaratlon of intent to be a write-in caudidate or by the filluig of a vacancy under section 3513.30 of the Revised Code. The secretary of state shall order the board of elections of each county in which the pei-son is seeldng to appear on the ballot to disqualify that person as a candidate for eacli office for which the person songht to become a candidate aRer the date on which tbe person first sought to become a candidate for any of those offices. If the secretary of state deternrines that the person sought to become a candidate for more than one of'those offices on the saine date, the secretary of'state shall order the board of elections of each county in which the person is seeking to appear on the ballot to disqnalify that person as a ca.ndidate for each office that would be listed on the ballot below the highest office for which that person seeks nomination, according to the ballot order prescribed under section 3505.03 of the Revised Code. Each board of elections so notified shall vote promptly to disqualify the person as a eandidate in accordance with the order of the secretary of state. (c) If eacli office or the district for each office for which the person is seeking nomination is wholly within a single county and any of those offices is a federal office, the board shall vote pnmply to disqualiFy that person as a candidate for each 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 of the offices for which the person is seeking nomination is a federal office, the board shall notify the secretary of state. The secretaiy of state then shsill order the board of elections of each cormty in which the person is seeking to appear on tbe ballot to disqualify that persou as a candidate for each office that is not a federal office. Each board of elections so no[ified shall vote proinptly to disqualify the person as a candidate in accmdance witb the order of the secretary of state.
(D)(I) If the secretary of state detei-mines, afterthe day of the primaiy election and before the dav of the general election, that a person is seeldng election to more tlitui one office at that e-lection in violation of division (A) of this section, the secretary of state slrall do one of the following: (a) If each office or the district for eacli office for wlrich the person is seeldng eleciion is whollv within a single county and none of those offieesis a federal office, the seeretruy of state shall notify the board of elections of that counry. The board then shall deter-

mine the of'fices for whicli the persori seeks to appear as a canclidate on the ballot. The board shall vote promptly to disqualify that persou its a candidate for eacli office that woiild be listed on the ballot belowthe highest oflice for which that person seeks election, according to the ballot order presei9bed muler sectlon 3505.03 of the Revised Cocle_ If the person songht nominafion at a primvy election and has not yet been issued a certificate of nomination, the bom-d shall not issue that certificate for that person for any office that would be listed on the ballot below the higliest office for which that person seeks elec5on, according to the ballot order prescribed rmder section 3505.03 of the Revised Code. (b) If one or more of the offices for which the pcrson is seeking election is a state office or an office with a district latgeithan a single coanty and none of the offices for which the person is seeldng election is a federal office, the secretary of state shall promptly investigate and cletermine the offfices for whicb the person seeks to appear as a candidate on the ballot. The secretary of state shall order the board of efections of each eounty in which the person is seeldng to appear on the ballot to cllsqualify that person as a candidate for each office that would be listed on the ballot below the highest office for which that person seeks election, according to the ballot order prescfibed under sec-tion 3505.03 of the Revised Code. Each board of elections so notified shall vote promptly to disqualify the person as a candidate in accordance with the order of the secretary of state. If the person souglit noinination at a primary election and has not yet been issued a certificate of nomination, the board sliall not issue that ceitifrcate for that person for any office that would be listed on the ballot below the highest office for which that person seeks elecflon, accorefing to the ballot order prescribed under section 3505.03 of the Revised Code. (c) If each office or the district for each office for whicli the person is seeking election is wholly within a single county ruad anv of those off'ices is a federal office, the secretaiy of state shall notify the board of elections of that eounty. The board then shall vote proinptly to disqualif}y that person as a candidate for each office that is not a federal office. If the person souaht nomination at a primmy election and has not yet^^been issued a certificate of nomination, the board shall not issne that certificate for that person for any office that is not a federal office. (d) If one or more of the offices for whielr the person is seekin g election is a state office and any of the offices for which the person is seeking election is a federal office, the secretay of state shall order the board of elections of each countv in which the person is seeking 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 no6fied shall vote promptly to disqualify the person as a candidate in accordance witb the order of the sea-etaiv of state. If the person sougbt nomination at a primarv electior and lias not yet been issuerl a ce-Eificate ofliomination, tho board shall not issue that certificate for that person for any office that is not a federal office.

A-41

137 PRIMARIES; NOMINATIONS

3513.05.2

pear vote = for v the tion, _tion ught een not that ffice the the the ffice e of isa 'ptly the The s of ron for the ion, lion ions -son the at a tifithat Ibe iCh der ice. for in a ice, ons r to hat ion da hat ta the the sa the on hat
t a

(2) If a board of elections detennines after the day to appear on the ballot to disqualify that person as a of 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-omptly more 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 witli nomanationtat a p imary election and has r person s iot yet do one of the following: (a) If each office or the district for each office for been issued a certificate of irornination, the board sha which 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 ezuididate , the board shall deternvne the offices for whi eh the (E) p person seeks to appear as a candidate on the ballot. The under division (C) or (D) of this section, that person s slic>11 vote proinptly to disqualify that person as a naine shall not appear on theballots for any office for allots 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 of seeks election, according to the ballot order prescribed elections shall reinove the name of the disqualified nnder section 3505.03 of the Revised Code. If the candidate Froin the ballots to the extent practicable in person sought nomination at a primary election and has the time remaining before the election and according not yet been issued a certificate of nomination, the to the directions of the secretary of state. If the name board slrall not issue that certifrcate foi- that person for is not rernoved from the ballots before the dav of the any office that would be listedon the badlot below the electloii; the votes for the disqualified candidate are highest 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 in person 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], 3513.2.55 state. The secretary of state promptly sliall investigate [351325 .5], 3513.257 [3513 25.7], 3513.250

and determine t h e o ffi c es for which the person seeks to

appear as a candidate on the ballot The secretary of Code prohibits, and the secretary of state or a board of state shall order the board of elections of each county electimrs shall not di.squalify, a person from being a in which the person is seeking to appear on the ballot candidate for an office, if thaY person timely withdraws to disqualify that pei-son as a candidate-for each office ,^ a candidate for any offices specified in division (A) of that would be listed on the ballot below the bighest tlris section for which that person first songht to office for whichthat person seeks election, according to become a candidate by filing a declaration of candidacy the ballot order prescribed under section 3505.03 of and petition, a declaration of intent to be a write-in the Revised Code. Eaclr Uoard of elections so notified candidate, or a nominating petition, by party nomina shall vote promptly to c7isqualif}f the person as a tion in a primary election, or by the filling of' a vacancy candidate 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 the ballot below the higllest office for which that person state board of education, member of the general seeks election, according to the ballot order prescribed ed Code. asseinbly, elrief justice of the supreme court, and under section 3505.03 of the Revis office Jr' ()e(Timely ^withdraw.s'^^me.ms either of the followis seeking i election is wholly within whkh the a office that county and any of those offices is 2 federal offlco, F ing: Withdrawin candidate before the applicu^ai the board shall vote promptly to disqualify that person (a) g as 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, or and has oot yet been issued a certificate of ttomination, nominating pefition for the si,ibsequent office for wbich the 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 appltcaperson is seeldng election is a state office and any of the ble deadline for the 611ina of a vaamcy nnder section offices for which the person is seeking eleclion is a 3513.3(1 or 351.3.31 of the Revised Code, if the person federal office, the board shall notify the secretary of is seeking to become a candidate for a subsequent shall order the board of office at the same election nnder eitlier of those state. The secretary of state elections of each county in which the person is seeknig sections.

[ 3513 . 25 . 9] , or 3513 . 261 [3.513.26.1] of tlle Revised

,all

nd he for

 3513.06

ELECTIONS

]38

t118TORY:14) 11445.E1i12232002;150 vH262, 1,uff- tliat snch IxeNinns clcotion was unc at wliic'h his 7-04; 151 v li 66, (S 101.01, tll J 2905. c:mdidacr conyilied with tLis sectinu. 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. Phe rffrctictr Ate is yol b,^ 1612.03 ol1.51 v I I 66

151 r 1166 _ elh ctnt^ .Septewhc i 29, 2(I(15msrrted ( A)(4) utlcyinnwhd Innac-r (A)Il) i (5); imciltd Irderv.d and Cross-RePerencen tu Related Sccfions 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),nlstrtcdmideout lf16us^^ufiicvsisa ni inrejoeti( .nlcvrrcnmnlxt-LLCOrLu,udufrlee4ioae Ictlci:d olTc -; iu 1(:)(I)(1)) :wtl (211IA .wd b)(I)(61 cmd h(' 3501:39 I2i(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 "1( 1(1)(cl and Id), (?)(e) md (cl). (D)(I c) uncl ldl. :w<I .351:335.1 t of omuo un statc-ment of vwiditlac.v. IiC (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. Ohio Constitutiun

CASE NOTES AND OAG Genernlh'

'fLe secretar, of shlte ha.s the anthunhtn find invalid a dedm'ation of c.wdidaec iilr nomimctien to the offliee of governor Illed ls u persoo mho hac presiou.slc filed, mld not withdruscu, a declnratloe ol eantlidacv for noniination to the ` oflice nilJnited States represenCltive nt the stane Uriinmn elec-tlon (1J48 OAG No_ 2923. p. 129 nud 1993 OAG No. 9:3-05?, upproced'an(i fullowed): OAG No.2(102-010 (2002).

Nanies of cwididutos un b.dlut_ OConst art V. 1 2;t Research Aids (:hange of c.wdidate's nwuc.

O-Jur3d: Hlrct 7^S

Am-Jur2d: Elect 1 301)

CASE NOTES AND OAG

INDEX

3513.06 Effect of chanp,e of name on declarxtion of candidacv. If unv per.sou desiring to bea nr a candidate filr pnblic office has llad a change of nwne wdthin five vecus innnediatelvprecedinK tlte filing of tlle person:s declaration of caudidacv, the persons declartttion of canclidacv and pe66on shall both contain, immecliatelc folloHnng the person's present n,nne, the person's fo)mer mmrles. Anv pel-sorn vvho has been elccted nnder the person'e cllanged name, withont submission of the person's fonner name, sh,tll be immediatelv'snspended from the office atld theoffice declareda.uated. aiid s)lall be liable to the state for anc salmz-he has received while holclirlg snch office. The rJttorney general ill the case of candidates for state offiees, the prosec3lting attorniev of tlle most populons comltv in adi.strict in the case of candidates for district ofTices, and the prosecnting attornec oftlle colultv in tLe case of :dl other celnclidutes shtdl institnte neces,san, action to enfnrce this section. This sec8on does not applV- to a clum^e of name bv reason of maniage_ to a randidate for a statc ofBce Nvho lras once conipllecl with this seclion end who ha.s previonslr lleen elected to a.state office: to It candidate for n district office sti'ho has once colnplied witll this sec6on tmcI who h.u previc lsh lreen elected to a state o)- (listrict oflice; to a canclidate for u connh oPlice who has once complied with this sectiou and Ir,t.s prevlou,slv been elected to a state, district. or cronnh- office; to a cancl(date fm.r municipal office udJCl Il ws once con) (olied knth tllis srction and llas previou.sls been elected to a mnuiopal office: or to a cundidate for a township oYllce w6o has once complied tidth thi.s section : md Ims previoush, been elected to a townl.ship ofAce; prrn'ided

(L^nrmllr Aitliorih-odhi,urclidilydion" Uw ^,f umiJh^n mune

Generally A ean(Ildate is nnt neeessarik dlsqvalified under HG )3.513.0G bv Ilix nse of hvo dilferent nanlrs, bnt here the cemcVdate:s otmi statement contnldict's his pres'eat positlon: State rc rel. Kierrison , 13oard ofN:leatiuns. 63 Ohiu St. 2d 33G. 17 Ohio Op. :3d 3r11.410 N E2d 764 (19R(1). \4'huc .1 person. m the siGning ol c declm:ction uf candidacv and petitiou for nominatton to a pablic office- used a name which he ha(I adopted cmd ln which hr Ilud hvun hreneinik l.iloe,n in thc camminihin which lle resiclyd tur imanvi cears Loth before und ;iRer the enuctnlent ofthis' section end GC: 4,-85-H(Ia (HC 3.513.2H), mui iilr morc thao ten cears hefbre the filhii;ofsnch dedm ^tian of enn<fitlacv andprtitou, the fact that doring the saine period of time he v.ced anothet nanle Dn certdn ocea.sion.s' dues not mcdce such sigrnin); n change of name critldn the Inuriesv and meanin2 ol.sach sectirnls: 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 ^rho is conlnlonk 6iloscm as `Flunlc H. Kcarndsign nn accepttmce of candidacr felr the office of colmcilmun of the citv of C:olnnibils us'Franl: Il. I(ew'n.s_- the nmuinaBinfr 1>etttion of such persnn, if rcgidar in all other lrspccts, is rJid, enon thonKh 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:n on thc b:dlot ln tbe ensning Iniinan'rlection sllanlctbe-Franlc H. Kearns": 1941 UAG No.><IN_fi(19-11). Autlrolity of board of elections Bowd of rlectiuns did nol adn'r its discrctiun ur vlearlr disrck utl appliealnlc I.w hc,stnkin(, l uwdid,tttCs ebamed aew nnddlc namefi-lml thc h,tlloC.Stutc cr ref. NWillel c. ('nv^Iholrn Ch. 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 election at which the candidacy is to be considered. The protest shall be in writing and shall be filed not later than four p.m. of the fifty-seventh day before the day of the election. The protest shall be filed with the board of elections with which the declaration of intent to be a write-in candidate was filed. Upon the filing of the protest, the board with wlvch it is filed shall promptly fix the tiine for hearing it and shall proceed in regard to the Irearing in the same manner as for hearings set for protests filed under section 3513.0.5of the Revised Code. At the time fixed, the board shall hear the protest and determine the validity or invalidity of the declaration of intent to be a write-in candidate. if the board finds that the candidate is not an elector of the state, district, county, or political subdivision in which the candidate seeks election to office or has not fully complied with the requirements of Title XXXV [35] of the Revised Code in regard to the candidate's candidacy, the candidate's declaration of intent to be a write-in candidate shall be deterinined to be invalid and shall berejected; other,tvise, it sliall be determined to be valid. The determination ofthe board is frnal. The secretary of state shall prescribe the form of the declaration 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); 149 v H 445. Eff 12-23-2002; 151 v H66, 101.01, eff. 9-29-05; 151 v H 3, 1, eff. 5-2-06.

the United States shall also file witll the secretary of state by that sixty-second day a slate of presidential electors sufficient in number to satisfy the requirements of the United States constitution. A board of elections shall not accept for filing the declaration of intent to be a write-in candidate of a person seeking to become a candidate if that.person, for the saine election, has already filed a declaration of candidacy, a declaration of intent to be a write-in candidate, or a nominating petition, or has become a candidate througli party nomination at a primary election or by the filllng of a vacancy under section 3513.30 or 3513.31 of the Revised Code, for any federal, state, or county office, if the declaration of intent to be a write-in candidate is for a state or county office, or for any municipal or township office, for metnber of a city, local,or exempted village board of education, or for member of a governing board of an educational service center, if the declaration of intent to be a write-in candidate is for a municipal or township office, or for member of a city, local, or exempted village board of education, or for member of agoverning board of an educational service center.

No person shall file a declaration of intent to be a write-in candidate for the office of governor unless the declaration also shows the intent of another person to be a write-in candidate for the office of lieutenant govemor. No person slrall file a declaration of intent to be a write-incandidate for the office of lieutenant governor unless the declaration also shows tlre intent of another person to be awrite-in candidate for the office - of goverrror. No person shall file a declaration of intent to be a write-in candidate for the office of govemor or lieutenant governor if the person has previously filed a declaration of intent to be a write-in candidate to the office of governor or lieutenant governor at the same priinary or general election. A write-in vote for the two carididates wlro file such a declaraHonshall be counted as a vote for them as joint candidates for the offices of governor and lieutenant governor. The secretary of state shall not accept for filing the declaration of intent to be a write-in candidate of a person for the office of govemorunless the declaration also shows the intent of another person to be a write-in candidate for the office of lieutenant govenror, shall not
accept for fil'nig the declaration of intent to be a write-in candidate of a person for theoffrce of lieutenant governor unless the declaration also shows the intenYof another person to be a write-in candidate for the office of govemor, and shallnot accept for filing the declaration of intent to be a write-in candidate of a person to the office of governor or lieutenant governor if that person, for the same election, hasalready filed a declaration of candidacy, a declaration of intent to be a write-in candidate, or a nominating petition, or has become a candidate througli party nomination at a primary election or by the frlling of a vacancy under section 3513.30 or 3513.31. of the Revised Code, for any other state office or any federai or county offrce. Protests against the candidacy of any person filing a

Effectof amendments 151 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 candidacy and petition; protests; certification of ballot forms. . . . IEach person desiring to become a candidate for a party nomination or for election to an office or position to be voted for at a primary election, except persons desiring to become joint candidates for the offices of governor and lleutenant govemor and except as otherwise provided in section3513.051 [3513.05.1] of the Revised Code, shall, not lafer than four p.m. of the seventy-fifth day before the day of the primary election, or if the primary election is a presidential primary election, not later than four .p.m.of the sixtieth dav before the day of the presidential primary election, file a declaration of candidacy and petition and pay the fees required under divisions (A) and (B) of section 3513.10 of the Revised Code. The declaration of candidacy and all separate petition papersshall be filed at the same time as one instmrnent. When the offices are to be voted for at a primary election, persons desiring to become joint candidates for the offices of govagnor and lieutenant govemor shall, not later than fourlp.m. of the seventy-fi(th day before the day of the primary election, comply with section 3513.04 of the Revised Code. The prospective joint candidates' declaration of candidacy and all separate petition papers of candidacies shall be filed at the same time as one instmment.

declaration of iintent. to be a write-in candidate may be filed by any qualified elector who is eligible to vote in

77 2010 SUPPLEMENT
The secretaryof state or a board of elections shall not accept for filing a deelaration. of candidacy and petition of a person seeldng to become a candidate if that person, for the same election, has already filed adeclaration of candidacy rrka deelaration of intent to be a write-in candidate, or has become a candidate by the fillingof a vacancy under, section 3513.30 of the Revised Code for anyfederal, state, or county office, if the declaration of candidacy is for a state or county office, or forany municipal or township office, if the declaration of candidacy is for a municipal or township office. . . . If the declaration of candidacy declares a candidacy whichis to be submitted to electors throughout the entire state, the petition, including a petition for joint candidates for the offices of govesnor and lieutenant, governor, shall be signed by at least one thousand qualified electors who are members of the same politicalparty as the candidate or joint candidates, and the declaration of candidacy and petition shail be filed witli the secretary of -state; provided that the secretary of state shall not accept or file any such petition appearing on its face to contain signatures of more than three thousand electors. Except as otherwise provided in this paragraph, if the declaration of candidacy isnf one that is to be subnutted only to electors within a district, political subdivision, or porflon thereof, the petition shall be signed by not less than fifty qualified electors who are members of the same political party as the political party of which the candi,date is a member. If the declaration of candidacy is for party nomination as a candidate for member of the legislative authority of a municipal corporation elected by ward, the petition shall be signed by not less than twenty-five qualified electors who are members of the political party of which the candidate is a member. No such petition, except the petition for a candidacy that is to be submitted to electors throughout the entire state, shall be accepted for filing if it appears to contain on its face signatures of more than three times the minimum number of signatures.When a petition of a candidate has been accepted for filing by a board of elections, the petition shall not be deemed invalid if, upon verification of signatures contained in the petition, the board of elections finds the numbet of signatures accepted exceedsthree times the minimum number of signatures required.'A board of electiong may discontinue verifying signatures on petitions when the number of verified signatures equals the minimum required number of qualified signatures. If the declaration of candidacy declares a candidacy for party nomination or for election as a candidate of an intermediate or minor party, the minimum number of signatures on such petition is one-half the minimum number provided in this section, except that, when the candidacy is one for election as a member of the state central committee or the county central committee of a political party, the minimum number shall be the same for an intermediate or minor party as for a major party. If a declaration of candidacy is one for election as a member of the state central committee or the county

3513.05

central committee of a political party; the petition shall be signed by five qualified electors of the district, county, ward, township, or precinct within which electors may vote for such candidate. The electors signing such petition shaIl be menibers of the same political party as the political party of which the candidate is a member. For purposes of signing or circulating a petition of candidacy for party nomination or election, an elector is considered to be a member of a political party if the elector voted in that party's primary.etection within the preceding two calendar years, or if the elector did not vote in any other party's primary election within the precedingtwocalendaryears. If the declarationof candidacy is of one that is to be submitted only to electorswitlun a count}; or-within a district or subdivision orpart thereof smaller than a county, the petition shall be filedwithtlie board of elections of the county. If the declaration of candidacy is of one that is to be submitted only to electors of a district or subdivision or part thereof that is situated in more than one county, the petition shall be filedwith the board of elections of the county within which the major portion of the population thereof, as ascertained by the next preceding federal census, is located. A petition shaIl consist of separate petition papers; each of which shall contain signatures of electors of only one county. Petitions or separate petition papers containing signatures of electors of more than one county shall not thereby be declared invalid. In case petitions or separate petition papers containing signatures of electors of more than one county are ffied, the board shall determine the county from which the majority of signatures came, and only signatures from such county shall be bounted. Signatures from any othercourity shall be invalid. Each separate petition paper shall be circulated by one person only, who shall be the candidate or a joint candidate or a member of the same political party as theeandidateor joint candidates,and each separate petition paper shall be govemed by, the rules set forth
in section 3501.38 of the Revised Code. The secretary of state shallpromptly trarumit to each board such separate petition papers-of each petition accompanying a declaration ofcandidacy filed with the secretary of state as purport to contain signatures of electors of the county of such board. The board of the most populous county of a district shall promptly transmit to each board within such district such separate petition papers of each petition accompanying a declaration of candidacy filedwith it as purpoit to contain signatures of electors of the county of each such board. The board of a county within which the major portion of the population of a subdivision, situated in more than one county, is located, shall promptly transmit to the board of each other county within which a portion of such subdivision is located such separate petition papers of each petition accompanying a declaration of candidacy filed with it as purport to contain signatures of electors of the.portion of such subdivision in the oounty of each such board.

A-45

 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 a petitions accompanying declarations of candidacy filed p rotest against the candidacy of any person filing a with a board shall , un der proper regu l ations, be open to declaration of candidacy singly public inspection until four p.m.of the seventieth day The secretary of state shall, on the sixtieth day before before the day of the next primary election, or if that the day of a piimeuy election, or if the primary election next primary election is a presidential primary election, is a presidential primary election, on the forty,fifth day the 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 the eighth 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 printed not later than the fifty-third day before such presiden- on the ballots whose nomination or election is to be tial primary election, examine and determine the valid- 'deterinined by electors tbroughout the entire state and ity 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 district secretary of state all petitiori papers transmitted to it by comprised of more than one county but less than all of the secretary of state, together with its certlfication of the counties of the state shaIl on the sixtieth day before its determination as to the validity or invalidity of the day of a primary election, or if the primary election signatures thereon, and shall return to each other is a presidential primary election, on the forty-fftb day board 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 the tion as to the validity or invalidity of the signatures names of the candidates to be pnntedon the official thereon. All other matters affectin the validitor ballots to be used at the primary election; whose invalidity ation orgS' nomin be detenninedonly by election is to of such petition papers shall be detennined electors within the district and wlio filed valid declaraby 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 major Protests 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 is election to an office or position, as provided in this located shall, on the sixtieth day before the day of a section, may be filed by any qualified elector who is a primary election, or if the primaiy election is a presimember of the same political party as the candidate dential primary election, on the forty-fifth day before and who is eligible to vote at the primary election for the day of a presidential primary election, certify to the
the. candidate whose declaration of candidacy the board of each county in which a portion of that elector objects to, or by the controlling committee of subdivision is located the names of the candidates to be that political party. The protest shall be in writing, and printed on the official ballots to be used at the primary shall be filed not later than four p.m. of the sixty-fourth election, whose nominatiomor election is to be deterday before the day of the primary. election, or if the mined only by electors witlun that subdiidsion aiand who primary 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 H shall 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, 7-12-85); 141 Tleolarationof eandid3cy and petition was filed. U bll 1, , 3( Eff 1-1-90) ; 143 v v S$45, 1, 3(Eff 5-2-86); 143 v H 36, p 1 3(Ell H 37, 1(Eff 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 (Eff 12-29-93); 146 v S 9(Eff 8-24-95); 148 v H 157 (Eff 9-20.99);149 whom it is filed shall' rom tl fix the time for heariri it, 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

bi om an el tic or th thi 35

g v H 3, 1, eff. 5-2-06. protest and the time fixed for hearing to the peison

whose candidacy is so protested. They shall also forthelection officials shall hear the nrntect and r7PtP,,,,;,,o the validity or invalidity of the declaration of c an didacy

Effect of amendments

with lnail notice of the time fixed for such hearing to 151 v H 3, effecttve May 2, 2006, conflrmed the amendment the person who filed the protest. At the time fixed, such , by 151 v H 66.

tov or aa ser

Practice Manuals and Treatises

and petition. If they find that such candidate is not anAnderson's OMo Civil Practice with Forms elector 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 OAG or election to an office or position, or has not fully . r .,n.
. .... ...... ......1,..,., 1..1 ..a.,.....awa ucwrrauwi

of candidacy and petition shall be determined to be Generally

lnvalici and sha(1 be reierYed- n+hen,dca ;r eh-11 he rro<ests determinerl -Fn ha -1i.7 Th.,^ .7^t ........:....u,._ ..t._n _ ^=^^ucucy requtrement

fmal. ^ . . . . - _ A protest against the candidacy of any persons filing

sha pet dat bec elet dec non thrc the 351
C ratit writ or c

of candidacy for joint party nomination to Defectiyadeclrtiove nomi nati ng petition could not be cured by the offices of governor and lieutenai.it govenior shall be submitting an affidavit at a subsequent time. BC 3513.0521

G enera ll

79 2010 SUPPLEMENT
does not prevent the application of RC 3513.261 and (2) Any municipal or township office, or for member 3513.05 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 educational has been wled invalid: State ex rel. Canales-Flores v. Lucas service center, if the declaration of candidacy, declaraCty. Bd. of Elections, 108 Ohio St. 3d 129 (2005). . tion of intent to be a write-in bandidate, or nominating Protests 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 of burden of showing, that a county oard of elections clearly education,or for member of a governing board of an disregarded the applicable law by deeming a protest to her educational service center. candidacytimelypursuanttoOhioRev.CodeAnn. 3513.05, (C)(I) If the secretarybf state determines, before she was not entltledto mandamus relie under Ohio Rev. the da y of the that a king person is see Code Ann. 2731.04, wherein she sought to compel the P rim arT election, y board to place her nameon the ballot; the protest arrived by nomination to more than one office at that election in mail to the board prior to the expiration of the filing deadline, violation of division (A) of this section, the secretary of b ut was not ate-stampe d unt d .aher the expiration thereof. . state s h all do one of the followmg rt d State ex rel. Martinez v. Cuyahoga Cty. Bd. of Elections; 2006 (a) If each office or the district for each office for Ohio App. LEXIS 1556, 2006 Ohio 1665, (2006). which the person is seekingnomination is wholly within , a single county andnone of those officesis a federal Residency requirement RC 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.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 a applies only to candidates who file a declaration of candidacy declaration of candidac or a declaration of i ntent t b and petition, not to candidates who replace an original a write-in candidate or by the illing of a vacancy under nominee who has withdrawn: State ez rel Addis M CI v c enen, section 3513.30 of the Revised Code. The board shall 119 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 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. If the board determines that the person sought to or position at same election become a candidate for more than one of those offices (A) No person shall seek nomination or election to on the same date, the board shall vote promptly to any of the following offices or positions at the same disqualify that person as a candidate for each office that election by filing a declaration of candidacy and peti- would be listed on the ballot below the highest office tion, a declaration of intent to be a write-in candidate, for which that person seeks -nomination, according to or 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 the

[ 3513.05.21 3513.052

3513.31 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

(5) Any combination of two or moreamunicipal P those offices ,, or sought to become candidate for each of townshtp offices, positions as a member of a city, local, by f`iling a declaration of candidacy or a declaration of or exempted village board of education, or positions as intent to be a write-in candidate or by the filling of a a member of a governing board of an educational vacancy under section 3513.30 of the Revised . Code. service center. The secretar of state shall order the board of eleci ytbns i i (B) The secretary of state or a board of election s o f ea h hih c h person is see ki to appear c coun ty m w t e ng shall not accept for filing a declaration of candidacy and on the ballot to disqualify that person as a candidate for petition, a declaration of intent to be a write-in candi` "each office for which the nerson sou ght to become a date, or a nominating petition of a persan seeking to candidate after the date on which the person first 1^; 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 P declaration of intent to be a write-in candidate, or a sought to become a candidatefor more than one of nominating petition, or has become a candidate those offices on the same date, the secretary of state through party nomination at a primary election or by shall order the board of electionsof each county in the filling of a vacancy under section 3513.30 or which the person is seeking to appear ontheballot to 3513.31 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 office ration of candidacy, declaration of. intent to be a for which that person seeks nomination, according to write-in candidate, or nominating petition is for a state the ballot order prescribed under section 3505.03 of or county office; the Revised Code. Each board of elections so notified

 3513.05.2 PAGE'S OHIO REVISED CODE ANNOTATED shall vote promptly to disqualify the person as a candidate in accordance with the order of the secretary of state. (c) If each office or the district for eaclr office for which the person is seeking noinination is wholly within a snigle county and any of those offices is a federal office, the secretary of state shall 'notify the board of electionsof that county. The board thenshall vote promptly to disqualify that person as a candidate for each 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 of the offices for which the person is seeking nomination is a federal office, the secretary of state shall order the board 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 shall vote promptly to disqualify the person as a candidate in accordance with the order of the secretary of state. (2) If a board of elections determines, before the day of the primary election, that a person is seeldng noiniriation to inore than one office at that elecflon in violation of division (A) of this section, the board shall do one of the following: (a) If each office or the district foreacli office for whiclr the person is seeldng nomination is wholly within that county and none of those offices is a federal office, the board shall determine the date on which the person first sought to becoinea candidate for each of those offices by filing a declaration of candidacy or a d'eclaration of intent to be a write-in candidate or by the fil].ingofa vacancy under section 3513.30 of the Revised Code. The board shall vote promptly to disqualify that person as a candidate for each office for which the person sought to become a candidate after the date on which the person first sought to become a candidate for any of those offices. If the board determines that the person sought to become a candidate for more than one of those offices on the same date, the board shallvote promptly to disqualify that person as a candidate for eacli office that would be llsted on.the ballot below the highest office forwhich that person seeks nomination, according to the ballot order prescribed under section 3505.03 of the Revised Code.
(b) If one or more of the offices for which the person is seekingnoinination is a state office or an office with a district larger than a single county and none of the offices for whichthe person is seeking noinination is a federal office, the board sball notify the secretary of state. The secretary of state then shall determine the date on whiclr the person first souglit to become a candidate for each of those offices by filing a declaration of candidacy or a declaration of intent to be a write-in candidate or by the filling of a vacancy under section 3513.30 of the Revised Code. The secretary of stateshall order the board of elections of each county in which the petson is seeking to appear on the ballot to disqualify that person as a candidate for each office for which the person sought to become a candidate after the date onwhich theperson first sought to become a candidate for any of those offrces. If the

secretary of state determines that the person sought to become a candidate fdr more than one of thoseoffices on the same date, the secretary of state shall order the board of elections of each county in which the person is seekirrg to appear on the ballot to disqualify that person as a candidate for each office that would be listed on the ballot below the lvghest office for which that person seeks nomination, according to the ballot order prescribed under section 3505.03 of'the Revised Code. Each board of elections so notified shall vote promptly to disqualify the person as a candidate in accordance with the order of the secretary of state. (e) If eacli office orthe district for each office for which the person is seeldng nomination is wholly within a single county and any of those offices is a federal office, the board shall vote promptly to disqualify that person as a candidate for each office that is not a federal office. (d) If one or inore of the. offices for which the person is seeking nomination is a state office arid any of the offices for which the person is seeking nomination is a federal office, the board shall notify the secretary of state. The secretary of state then shall order the board of elect3ons of each county in which the person is seeking to appear on the ballot to disqualify that person as a candidate for each office that is not aederal office. Each board of elections so notified shall vote promptly to disqualify the person as a candidate in accordance with the order of the secretary of state. (D)(1) If the secretary of state determines, after the day of the primary election and before the day of the general election, that a person is seelcing election to more than one office at that election in violation of division (A) of tlus section, the secretary of state shall do one of the following: (a) If each offrce orthe district for eachoffice for which the person is seeking election is wholly within a snigle county and none of those offices is a federal office, the secretary of state shall notify theboard of elections of that comity. The board then shall determinethe offices for which the person seeks to appear as - a candidate on the ballot. The board shall vote promptly to disqualify that person as a candidate for each office tlrat would be llsted on the ballot below the highest office for which that person seeks election,
.according to the ballot order prescribed under section 3505.03 of the Revised Code. If the person sought nonrination at a primary election and has not yet been

issued a certificate of nomination, the board shallnot issue that certificate for that person for any office that would be llsted on the ballot below the highest office for which that persop seeks election, according to the ballot order prescrilind under seclion 3505.03 of the Revised Code. (b) If one or more of the offices, forwhich the person is seeking election is a state office or anoffice with a district larger than a single county and none of the offices for wlrich the person is seeking election is a federal office, the secretary of state shaIl promptly investigate and determine the offices forwhich the person seeks to appearas a candidate on the ballot. The secretary of state shall order the b6ard of eleetions of

0.

81 2010 SUPPLEMENT

3513.05.2

P'i

each county in which the personis seeking to appear on according to the ballot order prescribed under section the 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 the highest office for which that person seeks election, person is seekingelection is a state office or an office according to the ballot order prescribed mider section with a district larger than a singlecounty and none of 3505.03 of the Revised Code. Each board of elections the offices for which the person is seekdng election is a so notifiedshall vote promptly to disqualify the person federal office, the board shall notify the secretary of as a candidate in accordance with the order ofthe state. Thesecretary of state promptly shall investigate secretary of state. If the person sought nomination at a and determine the offices for which the person seeks to primary election and has not yet been issued a certifi- appear as a candidate on the ba]lot: The secretary of cate of nomination, the board shall not issue that state shall order the board ofelections of each county certificate for that person for any office that would be in which the person is seeking to appear on the ballot listed on the ballot below the highest office for which to disqualify that person as a candidate for each office th at person seeks election, according to the ballot order that would be listed on the ballot below the highest prescribed under section 3505.03 of the Revised Code: office for which that person seeks election, according to (c) If each officeor the district for each office for the ballot order prescribed under section.3505.03 of which the person is seeking election is wholly within a the Revised Code. Each board of elections so notified single county and any of those offices is afederal office; shall vote promptly to disqualifythe person as a the secretary of state shall notify the board of elections candidate in accordance with the order of the secretary of that county. The board then shall vote promptly to of state. If the persori sought nomination at a primary disqualifythat person asa candidate for each office that election and has not yet been issued a certificate of is not a federal office. If the person sought nomination 'nomination, the board shall not issue that certifrcatefor at a primary election and has not yet been issued a that person. for any office that would be listed on the certificate of nomination, the board sballnot issue that ballot below the highest office for which that person certificate for that person for any office that is not a seeks eleetion, according to the ballot order prescribed federal office. under section 3505.03 of the Revised Code. (c) If each office or the district for each office for (d) If one or more of the offices for vrhich the wbich the person is seeking election is wholly within person is seeking election is a state office and any of the offices forwbich the person is seeking election is a that county and any of those offices is a federal office, federal office, the secretary of state shall order the the board shall vote promptly to disqualify that person boardof elections of each county in which the person as a candidate for each office that is not a federal office. is seeking to appear on the ballot to disqualify that If the person sought nomination at a primaryelection person as a candidate for each office that is not a and has not yet been issued a certificate of yomination, federal office. Each board of elections so notified shall the board shall not issue that certificate for that person for any office that is not a federal office. vote promptly to disqualify the person as a candidate in (d) If one or more of the offices for whichthe accordance with the order of the secretary of state. If person (s seeldng election is a state office and any of the the person sought nomination at a primary election and has not yet been issued a certificate of nomination, the officesffor wtdch the person is seekdng election is a board shaIlhot issue that certificate for that person for federal office, the board shall notify the secretary of state. The secretary of state shall order the board of anyoffice that is not a federal office. (2) If a board of elections determines, after the day elections of each county in wbich the person is seeking to appeai on the ballot to disqualify that. person as a of the primary election and before the day of the carididate for each office that is not a federal office. general election, that a person is seeking election to Each board of elections so notified shall vote promptly more than one office at that election in violation of to disqualify the person as a candidate in accordanoe, division (A) of this section, the board of elections shall with the order of the secretary of state. If the person do one of the follrnaing: sought nomination at a primary election and has not yet. (a) If each office or the district for each office for been issued a cerlificate of nomination, the board shall which the person is seeking election is wholly within not issue that certificate for that person for any office that county and none of those offices is a federal office,+ that is not a federal office. the. board shall determine the offices for which the (E) When a person is disqualified as a candidate person seeks to appear as a candidate on the ballot. The under division (C) or.(D) of this section, on or before board shall vote promptly to disqualify that person as a the sixtieth day before the day of the applicable-^candidate for each office that would be listed on the election, or, if the election is a presidentlal primary ballot below the highest office for wbich that person election, on or before the forty-fifth day before the day seeks election, according to the ballot order prescribed of the presidential primary election, the board of under section 3505.03 of the Revised Code. If the elections shall remove the person's name from the person sought nomination at a primary election and bas ballot for any office for which that person has been not yet been issued a certificate of nomination, the disqualified as a candidate according to the directions board shall not issne that certificate for that person for of the secretary of state. When a person is disqualified any office that would be llsted on the ballot below the as a candidate under division (C) or (D) of this section highest office for which that person seeks election, after the sixtieth day before the day of the applicable

A-49

 3513.06

PAGE'S OHIO REVISED CODE ANNOTATED

Effect of amendments 151 v I-I 3, effective May 2, 2006, oontlnned the amendment

election, or, if the election is apresidential primary election, after the forty-fifth day before the day of#he presidential primary election, the board of elections shall not remove the person's name from the baIlot for any office for whicb that person has been disqualified as a candidate. The board of elections shall post a notice at each polling location on the day of the appllcable election, and shall enclose with each absent voter's ballot given or mailedafter the candidate is disqualified, a notice that votes for the person for the office for which the person has been disqualified as a candidate will be void and will not be counted. If the name is not removed from the ballots before the day of the election, the votes for the disqualified candidate are void and shall not be counted. If the natne is not reinoved from the ballots before the day of the election, the votes for the disqualified candidate are void and shall not be counted.

by 151 v H 66; and rewrote (E).

Generally RC 3513.052 does not prevert the application of RC 3513.261 and 3513.05 to bar a second nominattng petition for the same office at the same election after the first noininating 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 nameon declaration of candidacy.

CASE NOTES AND OAG

Use of maiden name Where a potential candidate for a judge position brought a (F) Any vacancy created by the disqualification of a mandamus action under Ohio Rev: Code Ann. 2731.04, person as a candidate under division (C) or (D) of this seeldng tocomp8l the eounty board of electionsto place her section may be filled in the manner provided for in naine on the ballot, her request for a writ failed where she did seotions 3513.30 and 3513.31 of the Revised Code. not meet her burden of proof of showing that she had a clear (C) Nothing' in this section or section 3513.04, legal right to relief and that the board had a olear legal duty to 3513.041 [3513.04.1], 3513.05, 3513.251 [3513.25.1], previde that relief; the candidate had used her maiden name 3513.253 [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 marriage exemption of Olrio Rev. Code Ann. 3513.06 did Code prohibits, and the secretary of state ora board of not apply. State ex rel. Martiriez v. Cuyahoga Cty. Bd. of elections shall not disqualify, a person from being a Elections, 2006 Ohio App. LEXIS 1556, 2006 Ohio 1665, candidate for an office, if that person timely withdraws (2006). as a candidate for any offices specified in division (A) of this section for which that person first sought to become a candidate by filing a declaration of candidacy 3513.07 Form of declaration of eandiand petition,a declaration of intent to be a write-in dacy; petition for candidate. candidate, or a norninating petition, by party nominaThe form of declaration of candidacy and petition of tion in a primary eleotion, or by the filling of a vacancy a person desiring to be a candidate for a party nomimider 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 the state board of education, meinber of the general assembly, chief justice of the supreme court, and justice of the supreme court. (2) "Timely withdraws''means either of the following: (a) Withdrawing as a cmididate before the appllcable deadline for filing a declaration of catididacy, declaration of intent to be a write-in candidate, or nominatingpetition for the subsequent office for which the person is seeldng to become a candidate- at the same election; , . (b) Withdrawing as a candidate before the applicable deadline for the filling of a vacancy under section 3513.30 or 3513.31 of the Revised Code, if the person is seeldng to becotne a candidate for a subsequent office at the same election under either of those , sections.
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.

nation or a candidate for election to an office or position to be voted for at a primary election shall be substantially asfollows: "DECLARATION OF CANDIDACY
PARTY PRIMARY ELECTION

I, .................... (Name of Candidate), the undersigned, hereby declare under penalty of election falsification that tny voting residence is in ............... precinct of the .......... (Township) or (Ward and City or Village) in the county of ............ . Ohio; that my votuig residence is ............... (Street and Number, if any, or Rural Route and Number) of the ...:................ (City or Village) of ...,:....... ; Ohio; and that I azn a.qualified elector in the precinct in which my voting residence is located. I am a member of 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 or position of .......... ) for the .......... in the state, district, (Full term or unexpired term ending .......... ) county, city, or village of ................. at the primary election to be held on the .......... day of ......... ..:...

 3513.06 PAGE'S OHIO REVISED CODE ANNOTATED 82

t

election, or, if the election is a presidential priinary election, after the forty-fifth day before the day of the presidential primary election, the board of elections shall not remove the person's. name from the ballot for any office for which that person has been disqualified as a candidate. The board of elections shall post a notice at each polling location on the day of the applicable election, and shall enclose with each absent voter's ballot given or mailed after the candidate is disqualified, a notice that votes for the person for the office for which the person has been disqualified as a candidate will be void and wIll not be counted. If the name is not removed from the ballots before the day of the election, the votes for the disqualified candidate are void and shall not be counted. If the nanie is not removed from the baots before the day of the election, the votes for the disqualified candidate are void znd shall not be counted. (F) Any vacancy created by the disqualification of a
person as a candidate under division (C) or (D) of this section may be (illed in the manner provided for in sections 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 Revised Code prohibits, and the secretary of state or a boardof elections shall not disqualify, a person from being a candidate for an office, if that person timely withdraws as a candidate for any offices specified in division (A) of this section for which that person first sought to become a candidate by filing a declaration of candidacy and petition,-a declaration of intent to be a write-in candidate, or a nominating petition, by party nomination in a prirnaazyelection, or by the filling of a vacancy under section 3513.30-or 3513.31 of the Revised Code.

Effect of amendments 151 v H 3, effective May 2, 2006, confirmed the amendment

by 151 v H 66; and rewrote (E).

Generally RC 3513.052 does not prevent the applicatlon of RC 3513.261 and 3513.05 to bar a second nominating petition for the same office at the same election after the first nominating 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 on declaration of candidacy. CASE NOTES AND OAG
Use of maiden name
. Ni?here a potential candidate for a judge position brought a mandamus acHon under Ohio Rev. Code Ann. 2731.04, seeldug to compel the county board of elections-to place her name on the ballot, her request for a writ failed where she did not meet her burden of proof of showing that she had a clear legal right to relief and that the board had a clear legal duty to provide that relief; the candidate had used her maiden name on the candidacy declaration, although she used that as well as her marriednameon assorted legal documents, such that there was no clear abandoninent of her maiden name and the marriage exemption of Oluo Rev. Code Ann. 3513.06 did not apply. State ex rei. Martinez v. Cuyahoga Cty. Bd. of Elections, 2006 Oluo Yrpp. LEXIS 1556, 2006 Ohio 1665, (2006).

c
N

3513.07 Form of declaration of candidacy; petition for candidate. The form of declaration of candidacy and petition of a person desiring to be a candidate for a party noinination or a candidate for election to an office or position to be voted for at a primary election shall be substantially as follows: "DECLARATION OF CANDIDACY
' PARTY PRIMARY ELECTION

(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 the state board of education, member of the general assembly, chief justice of the supreme court, and justice of the supreme coult. (2) "Timely withdraws"means either of the following: . . . . (a) Witlidrawing as a candidate before the applica ble deadline for filing a declaration of candidacy, declaration of intent to be a write-in candidate, or nominating petition for the subsequent office for which the person is seeldng to become a candidate at the same election; , (b) Withdrawing as a candidate before the applicable deadline for the filling of a vacancy under section 3513.30 or 3513.31 of the Revised Code, if the person is seeking to become a candidate for a subsequent office at the same election under either of those sections. . . . ' 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.

I, .................... (Name of Candidate), the undersigned, hereby declare under penalty of election falsification that my voting residence is in ............... precinct of the .......... (Township) or (Ward and City or Village) in the county of ............ . Ohio; that my voting residence is ............... (Street and Nutnber, if any, or Rural Route and Number) of the ...:................ (City or Village)of ...::....... ; Ohio; and that I am aqualified elector in the precinct in ivhich my voting residence is located. I am a member of 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 or position of .......... ) for the .......... in the state, . district, (Full term or unexpired term ending ..........) county, city, or village of ....:........:... at the primary election to be held on the .......... day of ......... ..:...

A-51.

2010 SUPPLEMENT and I hereby request that my name be printed upon the 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 saidofficeor position, I will qualify therefor, and that I will support and abide by the principles enunciated by the ...... :... Party..Dated this .......... day of ...:...... . .......
........................................................ (Signaturebf candidate) WHOEVER COMMITS ELECTION FALSIFICA-

3513.19

ment

RC peufvst rel. o St.

The secretary of state shall prescribe a forin of declaration of candidacy and petition, and the form shall be substantially similar to the declaration of candidacy and petition set fortb in this section, that will be suitable for joint candidates for the offices of governor and lieutenant govemor. The petition provided for in this section shall be circulated only by a member of the same political.party as 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 (Eff 3-10-78); 138 v H 1062 (Eff3-23-81);143 v H7 (Eff 9-15-89); 146 v H 99 (Eff 8-22-95); 148 v H 495 ( Eff 5-9-2000); 149 v H5. Eff 8-28-2001; 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

TION IS GUILTY OF A FELONY OF THE FIFTH DEGREE.

PETITION OF CANDIDATE

;ht a 1.04, her did aear ty to ame II as that the did of

We, the undersigned, qualifiedelectors of the state of Ohio,whose voting residence is in the county,city, village; ward, township, or school district, andprecinct set opposite our names, and members of 'the ......:............. Party, hereby certify that ................... (Name of candidate) whosedeclaration of can didacy is filed herewith, is a member of the .......... Party, and is, in our opinion, well qualified tb perform the duties of the office or position to which that candidate desires to be elected.
Street City, and Village or Signature Number Townslrip Ward Precinct County Date

151 v H3, effective May 2, 2006, except amendments permitting and authorizing an attorney in fact to sign
election documents oii behalf of a disabled voter, effective June 1, 2006, in the paragraph beginning "(Name of circulator of petition)", added "or of an attorney in fact acting pursuant to section 3501.382 of the Revised Code" to the end; and added "of circulator's permanent residence in this state" to the end of the "Address" entry on the form.

. 3513.09 Signature of candidate. or at-

365,

(Must use address on file with the board of elections) .:.. .............. ..... ......... . . . . ........................... ....................... . . . ...............................
.............. (Name of circulator of petition), declares under penalty of election falsification that the circulator of the petition is a qualified elector of the state of Ohio and resides at the address appearing below the signature of that circulator; that the circulator is a member of the ........... Party; that the circulator is the circulator of the foregoing petition paper containing ............. (Number) signatures; that the circulator witnessed the affixing of every signature, that aIl signerswere to the best of the circulator's knowledge and belief qualified to sign, and that every signature is to the best of the circulator'sknowledge and belief the signature of the personwhose signature it purports to be or of an attoniey in fact acting pursuant to section 3501.382 [3501.38.2] of the Revised Code. .......... ........:. . . ......... t....... (Signature of circulator) ....................................................

torney in fact.
If the petition required by section 3513.07 of the Revised Code to be filed with a declaration of candidacy consists of more than one separate petition paper, the declaration of candidacy of the candidate named need be signed by the candidate, or of an attorney in fact acting pursuant to section 3501.382 [3501.38.2] of the Revised Code, on only one of such separate petition papers, but the declaration of candidacy so signed shall be copied on each other separate petition paper before the signature[s] of electors are placed on it.
HISTORY: 'GC 4785-72; 113 v 307(339), 72; 114 v 679(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; 151 v H 3, 1, eff. 5-2-06.

l of mior be

See provisions of 4 of 151 v H 3 following RC 3501.38. Effect of amendments

151 v H 3, effective May 2, 2006, except amendments permitting and authorizing an attorney in fact to sign election doeuments on behalf of a disabled voter, effective June 1, 2006, inserted or of an attorney in fact acting pursuant pursuant to section 3501.382 of the Revised Code", and made minor stykstic changes.

(Address of circulator'spermanent residence in this state) (If petition is for a statewide candidate, the name and address of person employing . circulator to circulate petition, if any)
WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FELONY OF THE FIFTH DEGREE

3513.19 Challenges.
(A) It is the duty of any judge of elections, whenever any judge of elections doubts that a person attempting to vote at a priinary election is legally entitled to vote at that election, to challenge the right of that person to vote. The right of a person to vote at a primary electlon may be challenged upon the following grounds:

A-52

 3513.26.2

ELECTIONS

166

167
Reised elections sh and validity .3513.26.= "examfne al the petition other mato petifion pal or the boar written pro nominatint; protest and protest and and such d a board of c the noanina ineligble t cletermine such board corruption, or legal prc review: Stal 193, 57 Oh Protest A. elect pursuant tt board of e pursuant t candidate N party to s defendemt: 41 Ohio 0

mcnt of ctndidncv: State cx reL 1'Lillipv v I.or:tiu (;ty: t3d, of Llections. 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 cYnnplinnee wit6 the form of the statenieit of c.mdid.tc^,: State ez rel. Osboni v_ Faiiiicld (:N. ISd. of Elections, 65 Olliu S't..3d 194, 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 OLiu S't- 3d 5:3, 514 N. E.2d 709 (1987). Void pefi6un A 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 is scrking election nt the };enenil election in Noveinbc-r to x fldl tenn 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 bp the eleators for snch candidate for a htll term as judge olt6r cumitv cowt is ineffective; stmh f;morzble cate can uat be crmstrned to be an election of the candidute for an nnespired term .vhere ehe quesYron presented on the ballot was elec4ion for u fidl term: 1965 OAC No. 65-7 (1965).

{f

[ 3513.26.2] 3513.262 Processing of petitions; public inspection; protests. The noniinating petitions of all candidates required to be filecl before four p.nr. olthe dav before the day of the prim.uv electiotr immediately preceding the general elecBon sltall be processed as follows: If such petition is filed with the secretary of state, he sh:dl, not later than the fifteenth dtrv of Jnne follo,ving the fillng of snch petition, or if the piim:nn^election was a presidential pdmmy election, not laterthan the end of the sixth week after the dav ofthat election, transmit to eacli boai-d such separate petition papers as pmport to contain signatures of electors of the counq- of snch bom-d. If such petitlon is filecl with the board of the most populous county of a district or of a countv in wlrich the major portion of the popultition of a subdivision is located, such hoard shall, not later tlran the fifteenth day of June, or if the primary election was a presidential primaty election, not later thxn the end of the sixth week after the day of that election, transmit to each board within such dishiet snch separate petition papers of the petition as putport to contain signatures of electors of the countv of sucli board. All peSHon papers so transmitted to a bo:u-d ancl all notninating petitions filed with a board shall, ttnder proper reb tlations, be open to public inspection fiotn the fifteentli dav of June until fonr p.nr. of the thii-tieth dav of that month, or if the primarv election was a presidential primaty election, from the end of the sixth weelc after the election nntil fotu-p.m. of the end of the seventli week afher the election. Each boar(I shall_ not later than the next fifteenth day of Julg or if tbe primnary, election was a presidential juimarv election, not later thau the end of the tenth week after the dttv of that election, exatnine and detertnine the sufficiency of the simntures on the petition papers transnitted to ot filed witli it, and the validitv of the peti5ons filed with it, and sh;ill rehtnr to the secretaiv of state all petition papet-s transmitted to it by him, toaethei- with its certification of its detertnination as to the vtdiditv or invalidity of signatttres tlrereon, and shall return to

each other botrrd ; Jl petition papers trnusmitted to it by sncll other Iroard, as pruvidcd in this .sectiun, toyether with its certification ofits de.ternrfnatiou as to the validity ot- invaliditv ofsigmatnree thereon. All uther ntatters affecl the validitv or invaliditv of such petitiou papers shall be determined by the .secrettuyof state or the bourd yvitli whom snch petition pupers were filed. Written protest.s against nornnratingpetitions xiav 1>r filed bv airy qualified clector eli},+ible to vote fitrthe candid<tte whose nomin,rting petition he objects to, rnot laterthan fonrp.m.ufthc tldrtieth davol July, oril the ptimarv election was a presielentiel prinmiY election, uot later than thc end of the hvelftli week after the day of that elec4ion. Such protests .slrall be filed with the election officials with v,^hoin the nominating petition was filed. Upon the filing of .sncli protest, the election officials with stlroni ltis filed shall prompAy fis the timc :md placre for hetuingft, and shall forthwttli m,ul notice of the filfng of sueh protest ssnd the time and place for heming i t to the pe rson vrhose nonr iuation is protestcd. Thec shall alsn fortlnvith mail notice of the tinre and place fixed for the hearing to the person who filed the protest. At the time fixed, suclt election oflicials shall hemthe protest and determine tlie validih orinvalidith^ ofthe petition. Such determination shtdl^be final. A protest against the nominating petition filecl bv joint candidates forthe offlecs of governor tm(1 lieittenant governor shall be filed, hea'd, and (letermined in the samne manner as a pirotest against the nominating petition of a candidate wdio files bv bimself.
HISTORY: 125 v 711 (Eff 1-1.54); 135 v H 662 (Eff 9-27-74); 13S v H 1062 (p8f 3-23-51); 141 r 11 524 ( Eff 3-17-87); 145 v S 150. Eff 12-29-93.

Petition flve remed

cannot ma Elections,

229 (1958)

11

Cross-References to Related SeeHuns Rejection of petifions. IiC .3501.39. Research Aids Proce.ssin, ofpetitions; protests: O-Jur3d: Elect ( 103. 105 AurJnr2d: Eleet ^ 222

[ 3
cessing c The ac to be fil before tli cessed as if such sltall proi petition I electors c If suc]r which th vision is I the boar-< suclt sub papers of of electol

i+

CASE NOTES AND OAG

AirtIiontv Id hatrcl
Dnt,- of board of rlrcbons 1'rotr.vt

Authority of board The board ofelections did not abnse it.v discrction or detulc disregmcl apPlicable law in deminG a protest to a candfdate3 eligibi lity for the office of coroner: State ex rel. Walls- l.1 I:u-clin C:R. 13d. Of Elections, 156 Ohio App. 3d 55 (2004). The determinution of a bo;vd of elections ^,dth respect to a protest against a nomrnuti n+ petition is not uppc alable: State ex rel. Moss c. Bd, of Elections.89 Ohio App- 2d 115. 23 (7hio Op. 3d 324, 4.32 N.E.2d 210 (1980). Duty of board of elections A hoard of elections ia under a m,mdatoiti dnR_ under RC 3501.11 and 3513.2$.3 to detcrmine the vadidih' of nonifnating petitions whetfter or not a pmtest is filed against them nnder this section: 1956 OAG No. 6919 (1956).

All pe elections. board of open to tieth day

board sh. the day mine the papers tr

A-5

PRIMARIES; NOMINATIONS
Revised Code 3501,11 provid'urg that each board of electioos sludl "review, examine, and certify the sufficiency and validity of petitions and noinutation papers," and RC 3513.26.2, which provides that each board of elections shall examine anc7 determine the sufBciency of the siz,natrres on the petitiou papers transmitted to or filed with it"; that -all other matters affecting the valirlity or invalidity of such petition papers, shall be cleterminerl by the secret,uy of state or the board with whoin such pefltion papers were filecl"; that written protests with the election officials with whom the nominating petition was filed"; and that, npan filing of such protest and after uotice, -s'uch election officials shall hear the protestanddeterminethe,^edidityorinvalidityoftlrepetitiod and'such determination shall be fimd": authorize and require n board of elections to conduct a hearin.g ou a protest apalnst the noininatinn petition of a candidate who is alleged to be inelieible to as.stne the office sought, if elected, and to deternune the validity of such petition; and the decision of such board is final and, in the absence of allegations of fratud, comtption, abuse of discrefion or a edear disregard of stattttes or legal pro^-isians applicable tlhereto, is not 6ubject to judicial review: State es rel. Fhnm v. Board of Elections, 164 Obio St. 193, 57 Ohio Op. 402, 129 N.E.2d 623 (1955). Protest An elector, who files a protest with a boatd of elections pursuant to this section which protest is overrtded by such board of elections, can appeal to the common pleas com't pursuant to I1C Chapter 2506 If such an appeal is filed, a candidate whose peti8ons are being challenged is a necessary party to sueh an appeal and must be joined as :t party defendant: 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 adininistrative remedy of filing a protest to the nominatina petitions, cannot maintain an action in mandannts: Malnnze v. Board of Elections, 167 Ohio St. 323, 4 Ohio Op. 2d 401, 148 N.E.2(1

3513.26.3

invalidity of petitions filed with it, and shall rettnii to each other board all petition papers transinitted to it by such otber board, together with its certification of its detenmination as to the validity or invalidity of signatui-es thereon. All other tnattet_s aElectina the vtdidity or invaliditv of sncb pelition papers shall be determined by 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 for the candidate wbose nominating petition he objects to, not hrter than the sixty-fourth day before the general election. Such protests shall be filed with the etectiou officials v^itlr whoin the notninating petition was filed. Upon the filing of snch protests, tlre electiou officials with whom it is filed shall promptly fix the Hnie and place for hearing it, and shall forthwith mail notice of the filing of such protest and the time amd place for hearing it to the person wlrose nomination is protested. Tbey.slutll also fotthwidt tnail notice of the titne and place fixed for the hearing to the person who filed the protest. At the time and place fi,eed, such electiou officials shall hear the protest mrd determine the validity or invalidity of tlre petition. Such determination shall be final. HISTORY: 125 v 713(788) ( EPf' 1-1-54); 133 v S 19 (Ell
10-30-69); 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, 105 Am ,Jar2d: Elect 222

229 (19.59).

[ 3513.26.3] 3513.263 ProN,eessing of nominating petitions; protests. The nominating petitions of,all cattdidates reqnired to be filed before four p.m. of the seventy-fifth day before the day of the general election, shall be pro-

CASE NOTES AND OAG

INDEX
AutLuritv of haard nF rlect I)evJ.vaHrni of eran<Iidacy 'Rne Itndt.dinos

ces.sed as follows: If sttch petition is filed xvith the secretary ofstde, he sb,11p 1 , transtnit to ench board snch separate rom)tlv Authority of boarcl of elections peHtion papers as pmTorts to contain sib xtures of' The purpose of tlti,t section is to ^et the bo.ad to act electors of the connt^ of snch boartl. validity to an invdid promptly. It was not desioned to tniv2 If such pe6tion is filed with the board of a connty in petition where not acted upon by the hoard within a definite which the mujor portion of the poptdation of a subdiperiod of tinie: State es rel. Svete v. 13oard of Elections, 4Ohio vision is located, such board sltall pranptly transcnitto St. d 16, 33 Ohio Op. 3d 139, 212 N.E.2d 420 (1965). tx oaicwhich other portions of , I bl f e ich conntv in o . l,
' 1 ^ ^ ocated sach scparate pefition ' .. Stich SnlX iv^S^on uE
. Drrtirin of eandidacy e cl2 p tpers of ihe petition a.s purl) ort to conffiin signahtres Where the record of the he.uing before the bo.ucl of

of electors of suclt aotutty eleenons disclnses subscmn^J evPdencc. snppornny the fnding 1 ,t..,l. .n ,.,. ^f r nrhda<<_ sud^
Atl pettnon papers su ) 1 findinu will not be disturbed by thesnprema conrt: State ex board of elec6ons shall, nncLer proper regnlation, be el. Klinl. v, Eyrich, L57 Ohio St. 338, 4i Ohio Op. 198. 10.5 NE^d499(1952) . open to public inspection nntil four p.m. of the seven- " ''

elections, and all mmnm^eting pettttons hlec witi a

ac tieth daybefore the day ot such qeneral e l ectton.E ^1t board shall, not later than the sixty c.ighth day before the day of sncb s,Teneral election eeunine and deerrnine tlie sufficiency of the signatures on the petition papers transmitted to or filed with it and the validity or

Time limitations The 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
Revised Code 3501.11 providing that e:uh board of elections sliatl "review, examine, and certify the sufficiency and 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 on the pefifion papers transinitted to or filed with it"; that'all other matters affecfing the validity or invediclity of snch petition papers, sltall l>e determined by the seeretatv of state or the board evith whom such petition papers were filed"; that written protests `with the election officials with whom the nominating petition was filed"; and that, upon filing of such protest and after notice, "such election officials shall hear the ptrotest and deternnine the validity or invalidity of the petiflon and "snch determination shall be final"; authoiize and require a board of electlons to conduct a hearing on a protest against the nominafing petition of a candidate who is alleged to be ineligible to assume the office sought, if elected, and to determine the smli<$ty of sueh petifion; and the decision of such board is final and, in ttie absence of allegations of &aud, eorruption; abuse of discretion or a clear disregmd of statutes or legal provisions applicable thereto, is not subject to judicial reeiew: State ex rel. Flvnn v. Board of Eleetions, 164 Oliio St. 193. 57 Ohio Op. 402, 129 N.E.2d 623 (1955). Protest An elector. who files a protest with a board of elecfions pursuant to this section whicli protest is ovenmled by such board of elections. can appeal to the common pleas court pursuant to RC Chapter 2506 If such Lm appeal is filed, a candidate whose petitions are being challenged is a necessary party to such an appeal and inust be joinecl as a party defendant: 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 administrative remedy of fiting a protest to the noininating petltion.s, cannot maintain an action in matndamus: Maranze v. Board of Elections, 1.67 Oliio St. 323, 4 Ohio Op. 2d 401, 148 N.E.2d 229 (19ss).

3513.26.3

invalidity of petitions filed with it, and shall return to each other board ali petition papers trmisinitted to it by such other board, togetlier with its ceriification of its determination as to the validity or invalidity of signatiires tliereon. All other tnatters affecting the validity or invalidity of such petition papers shall be deterrnined by 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 for the candidate evhose nominating petition he objects to, not later than the sisty-fourtly day before the general election. Such protests shall be filed witli the election officials with whom the nominating petition was filed. Upon the filing of such protests, the election officials witli whom it is filed shall promptly fix the time and place for hearing it, and sliall fortliwith mail noHce of the filing of such protest and the tilne and place for hearing it to the person wlrose noinination is protested. They shall also forthwith mail notice of the titne and place fixed for the lrearing to the person wlro filed the protest. At the time and place fixed, sach election officials shall hear the protest and deterrnine the validity or invalidity of the petition. Sucly determination shall be final.
IiISTORY: 125 v 713(788) (Eff 1-1-54); 133 v S 19 (Eff 10-30-69); 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, 105 Am-Jur2d: Elect 222

[ 3513.26.3] 3513.263 Processing of nominating petit3ons; protests. The nominating petltlons of al candidates required
to be filed before four p.m. of the seventy-fifth day before the day of the general election, shall be processed as follows:

CASE NOTES AND OAG

INDEX

Authority of bozrd of elections Dedaratlon of aanclidxcp

Thne IlnuhRiuns

If such petition is filecl with the secretary of state, he

slrall promptly transinit to each board such separate petition papers as purports to contain sibiattues of

electors of the county of suci board.

If such petition is filed with the board of a cormty in wliich the major portion of the populatioo of a subdivision is located, such board shall promptly transmit to the board oP each county in which other portions of such snbdivision are located such separate petition papers of the petition as purport to contain signatures of electors of sucli county. All petition papers so transmitted to a board of elections, and all rrominating petltions filed with a board of elections sliall, under proper rer^nslation, be open to public inspection un6l four p.m. of the seventleth day before the day of snclt general election. Each board shall, not later than the si;dy-eighth day before the day of such general election examine and deter mine the snfficiency of the signatures on the petition papers transmitted to or filed with it and the validity or

Authority of board of elections The purpose of this section is to get the bourd to act promptly. It was not desi+yred to give validity to an invalid petition where not acted upon by tbe board within a defhnite period 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 candidacy of Where the record of the hearing befnre the board of elections discloses srbstantial evidence supporting the finrloig of the board appmving a declaratlon of candidacy, such finding wfll not be di.sthn-bed by the snpreme court: State ex i-el. (Clink v. Eyrich, 157 Ohio St..338, 47Ohio Op. 196, 105 N.E.2d 399 (1952). Time limitations The 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
Research Aids F:ilsification or destruction of ballots: O-Jur3d: Elect 303

ELECTIONS 326
official, or in a matter in relation to which an oath or statement under penalty of election falsificatiotr is -autho3izedba law, inc9uding a statement required for verifying or filing any declaration of candidacy, declaration of intent to be a write-in candidate, nominating petition, or other petition presented to or filed vjth the seci-etary of state, a board of elections, or any other public office for the purpose of becoming a candidate for any elective office, including the office ofa political party, for the purpose of submittiug a question or issue to the electors at an electioil,or for the purpose of f'orniing a political party. Whoever violates thissection is guiltyof election

Am-Jur2d: Elect 469

3599.34 Destruction of election records

before expiration of time for contest.

No person, from the tiine ballots are cast or voted until the titne has expired for using them in a recormt or as evidence in a contest of election, shall unlawfully destroy or attempt to destroy the ballots, or perinit such ballots or a ballot box or pollbook used at an election to be destroyed; or destroy, falsify, mark, or write in a name on any such ballot that has been voted. Whoever violates this section is guilty of a felony of the fifth degree.
HISTORY: GC 4785-224; 113 v 307(410), 224; Bureau of Code Revision, 10-1-53; 139 v S 199 (Eff 1-1-83); 146 v S 2. Eff 7-1-96.

falsification, a felony of the fifth degree. Evety paper, card, or other docmnent relating to any election matter that calls for a statementto be inade under penalty of election falsification shall be accompanied by the following statement in bold face capital letters: "Whoever cotntnits eleetion falsification is guilty of a felony of the fifth degree."
HISTORY: GC 4785-226; 113 v 307(411), 226; Bureau of Cude 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 (Eff 3-23-81); 147 v S 116. EfP 12-9-97. Cross-References to Related Sections

The effective date is set by section 6 of SB 2. Cross-References to Related Sections Penalty, RC 2929.11.

Research Aids Destruction of ballots or records: O-Jur3d: Elect 303 Am-Jur2d: Elect 469, 475
ALR Admissibility of election ballots in quo warranto proceedings. 71 ALR2d353.

Penalty. RC 2929.21. Perjury, RC 2921.11. Research Aids Perjuiy:

O-Jur3d: Elect 287,.288 CASE NOTES AND OAG

INDEX

3599 .35 Proxies not tobe given by

party representatives; irnpersonation of representatives. I

Countv charter amendnnents Petition

Relation to other Iaws 9tancLng

No party cotnmitteeperson or party delegate or alternate chosenat an election, or a delegate or alternate appointed to a convention provided by law, shaIl give or issue a proxy or autbority to another person to act or vote in that person's stead. No person shall knowingly or fraudulently act or vote or attetnpt to impersonate, act, or vote in place of that coinmitteeperson, delegate, or alternate.
Whoever violatesthis section is guilty of a tnisdemeanor of the first degree.
HISTORY: GC 4785-225; 113 v 307(410), 225; Bureau of Code Re^ision, 10-1-53; 147 v S 116. Eff 12-9-97. Researeh Aids Offenses: O-Jui3d: Elect 304 Am-Jur2d: Elect 327

County charter amendments lv'onconflicting provisions, such as tbe election falsification statement provisionsof RC 3501.38(J) and 3599.36, apply to 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). Petition Allegedly false statements in a petition for recall of a

mttnicipal offieer under RC 705.92 do not ptmvide a basis for an injunction against the election, since there is no requirement tliat the petition contain the'-trutli: Langley v. Fetterolf, 89 OuoApp. 3d 14, 623N:E.2d 577 (1993). Relation to other laws Under 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). Standing Because 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 eonstitutional provision and because declaration of candidacy inust be

3599.36Election falsification.

No person; either orally or in wiiting, on oath lawfullyadministered or in a statement tnade under penalty of election fxlsification, shall knowingly, sta#e a falsehood as to a tnaterial matter relating to an election in a proceeding before a court, tribunal, or election

326
. or is for :laing the ier ate cal iue of ion

OFFENSES AND PENALTIES

signed before. petifioos can be signed or circulated, 'voter" plaintiff is precluded from advancing candidacy, the court Gnds that plaunHffs have standing in this inattec Zielasko v. State of Ohio, 693 F. Supp. 577 (N.D. Ohio 1988).

3599.40

sueh conviction is for the same offense or not, is on such second conviction d ilty of afelony of the fourth degree, and in addition, shall be disfranchised.
HISTORY: GC 4785-230; 113 v 307(412), 230; Bureau of Code Revision, 10-1-53; 126 v 575 (Eff t0-6-55); 147 v S 116. Eff 12-9-97. Cross-References to Related Sections Penalties for fetony, RC 2929.11. Research Aids Second offenses:

Disobedience of subpoena concerning violation of election laws. (A) No person having been subpoenaed or ordered to appear before a grand jury, court, board, or officer in a proceeding or pr-osecution npon a complaiut, information, affidavit, or indictlnent for au of'fense under tur election law sllall do either of the following: (1) Fail to appear or, Iraving appeared, refuse to answer a quesHon pertineut to the matter under inqu.iry or invest3gation;

3599.37

O-Jur3d: Civ Sen 191; Elect 286

my
Ae
m-

3599.40 General penalty.

tal
is
, of !29 Eff

(2) Refuse to produce, upon reasonable notice, any material, boolcs, papers, documents, or records in tlmt person's possession or under- that person's control. (B) Whoever violates division (A) of this section, unless the violator claims thevi,olators constitnflonal riglrts, 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:

Except as otllerwise provided in section 3599.39 of the Revised Code, whoever violates anv provision of Title XXXV [35] of the Revised Code, rmless otberwise provided in such title, is gnilty of a misdeineanor of the first degree.
' I3ISTORY: GC 4785-232; 113 v 307(412); 232; Bureau of Code 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, 302 Am-Jur2de Elect 487

O-Jur3d: Contpt 34; Elect 285 Am-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.

CASE NOTES AND OAG

INDEX
Anthorftv of electlons umunissio Filing Reqniremeents

3599.38 nlegany

influencing voters.

(A) No election official, witness, challen ger, deputy

sheriff, special depttty sheriff, or police officer, while performing that person's duties related to the casting of votes, shall do either of the following: (1) Wear any badge, sign, or other insignia ot- tlring
Authodty of elections commission Neither OConst art 11, 28 nor uny other constitutional provision prohibits the elections commis'sion from taking jurisdiction of an alleged violation of the election laws which occurred prior to the effective date of AmSub SB No. 46, which e-stablislied thecommission. The elections commission has stanttorv authmity to investigate a statement of expenditures which was filed nn June 19.1974- The investigaHve procedm'es set fbrth in AmSuh SR No. 46 is farelapplieahle to an investigation, after the effective date of that act, of an alleged violation whiclr occurred before its effective date, in order to determine whether the election laws as they re.ulon s'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 which occurred after January 1, 1973; the one-year liinitation of former RC: .3.599.40 applies to thosewhich occurredbefore that date: 1974 OAC No. 74-087 (1974). Fding A candidate for office who fails to file a statement of expencBtnres as retlnired by RC 3517-10 within the time prescribed by that section is snhject to the ,specific penalty provided io RC 3511.1 t for fuihtrc to file within the pre.scribed period, bnt is not snbject to the penalty provision of RC: :3599.40 for.snch faflure: 1962 OAC No. 2875 (1962).

indicating tbat person's prefere-nce for any candidate or for any qtiestion submitted at an election;
(2) Influence or attempt to influence any voter to cast the voter's ballot for or against any candidate or issne submitted at an election. (B) Whoever violates (livision (A) of this sectlon is gailty of a misderneanor of the first degree.
HISTORY: GC 4785-228; 113 v 307(411), 228; Bureau of Code Revision, 10-1-53; 147 v S 116. Eff 12-9-97. Research Aids Offense.s by electlon ofAcitds: O-Jur3d: Elect 298 Am-Jur2d: Elect 469

a As ro

a n al e

3599.39 Second convicHon under election laws.

Any person convieted of a violation of any provision of'Citle XXXV [35] of the Revised Code, who is again convicted of a violation of any such provision, whether

57

Peace Officers Basic Training Program 109:2-1-12

consider include but are not limited to: illness of either the individual or his immediate family; emergency employment situations; or other valid reasons such as transportation failure. The executive director shall rule on that request within fifteen calendar days of his receipt of the request. If the request is granted, theexecutive director shall approve in writing the method of completing the training. (2) If the request to complete the course is denied by the executive director, the individual may request a hearing before the Ohio peace officer training council as provided in sections 119.06 and 119.07 of the Revised Code. The council shall conduct the heanng as required by sections 119.01 to 119.13 of the Revised Code. (C) There shall be no excused absences from the firearms training; domestic violence training; crisis intervention training; missirig, abused, and peglected children; laws of arrest; search and seizure; and cultural sensitivity portions of the basic course; or any other topic designated by the Ohio general assembly or the council. (D) The commander shall be responsible for maintaining an accurate record of attendance for each individual attending the basic course. He shall forward such records to the executive director, where they shall be available for authorized inspection. HISTORY: 1993-94OMR 155 (A), eff. 10-1-93 1987-88 OMR 574 (A-TF 109:2-1-08), eff. 1-1-88; 1987-88 OMR 574 (A-TT 109:2-1-10), eff. 1-1-88; prior PC-1-09
CROSS REFERENCES RC 109.73, Powers and duties RC 109.74, Promulgation of rules and regulations by attomey general RC 109.75, Executive director

RC 109.77, CertiScate of training for peace officer, liquor control investigator, bailiff, or criminal investigator; training in domestic mattcrs, crisis intervemion; exceptions; prohibition

109:2-1=1I Examination (A) No person shall participate in the final written examination who has been evaluated as unsatisfactory for the driving, 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 individual recommended for certification. Prior to January 1, 1989, the assembling of examination material, and the preparation, supervision and grading of the examination shall be the responsibility of the commander. The commander shall forward the examination results and a copy of the examination to the executive director. The individual examination papers shall be 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 addition to any examination given by a commander, prepare, conduct, and score a final examination for each person completing the basic course. The results of this examination shall be made known to the commander within five business days of the date administered. No person shall be recommended for certification by a commander unless he achieves a minimum score of seventy per cent. Persons failing to achieve a minimum score of seventy per cent shall be given one retest. This test shall be given within two weeks of the date of the first examination. The results of the test shall be made known to the commander within five business days of the date administered. Students who fail the retest shall not be permitted to take the final written examination again until they successfully complete another peace officer basic training course.

109:2-1-10 Notebook Each individual in the basic course shall maintain, as one of the requirements for certification, an adequate notebook during the course and shall submit such notebook to the commander for inspection. The notebook shall be evaluated as satisfactory or unsatisfactory by the commander. The notebook shall contain appropriate entries of pertinent material covered during the classroom sessions of the basic course. Among the factors to be evaluated in the notebook are: sufficiency of course content, organization, appropriateness of material, regularity of entries, neatness, accuracy and legibility. HISTORY: 1987-88 OMR 575 (A-TF 109:2-1-09), eff. 1-1-88

HISTORY: 1990-91 OMR 179 (A), eff. 8-21-90

1987-88 OMR 575 (A-TF 109:2-1-10), eff. 1-1-88; 1987-88 OMR 575 (A-TT 109:2-1-12), eff. 1-15-88; 1981-82 OMR 384 (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 schools RC 109.77, Certificate of training for pcace officer, liquor control investigator, bailiff, or criminal investigator; training in domcstic matters, crisis intervention; exceptions; prohibition

1987-88 OMR 575 (A-TT 109:2-1-11), eff. 1-1-88; 1981-82 OMR 383 (A), eff. 3-1-82; prior PC-1-10
CROSS REFERENCES RC 109.73, Powers and duties RC 109.74, Promulgation of rules and regulations by attorney general RC 109.75, Executive director RC 109.751, Approval of schools; attendance of undercover drug agents

109:2-1-12 Certification before service, re-entry requirements and notice of employment and termination (A)(1) No person shall, after January 1, 1966, receive an original appointment on a permanent basis as a peace officer unless such person has previously been awarded a certificate by the executive director attesting to his satisfactory completion 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 to perform the functions of a peace officer or to carry a wcapon in connection with his peace officer duties unless such person has successfully completed the basic course. (B)(1) Persons certified by the Ohio peace officer training council after January 1, 1966, or those who possessed the status as a peace officer on January 1, 1966, who terminate their employment from a department, will have their training eligibility reviewed upon reappointment to a department by the executive director of the council. (2) A person defined as a peace officer and holding a commission as a railroad police officer on August 19, 1976, under the provisions of section 4973.17 of the Revised Code shall not be required to complete the training required under this clka^je-- . . (3) All peace officers who were exempted from the basic training course, by virtue of possessing peace officer status on January 1, 1966; or exempted from training because of holding a valid commission under section 4973.17 of the Revised Code on August 19, 1976, except as noted in paragraph (B)(7) of this rule, shall take the mandatory basic training course, for certification upon re-entry. This requirement may be successfully met by presentation of documented proof of training equal to or exceeding the minimum basic requirement at the time said credit is sought, provided that to be acceptable as equivalent training, the training must have been received in a method that is approved by the executive director. (4) The executive director shall review the documents relative to the training previously completed and where the training is deemed to be equivalent training, shall grant credit for that portion of the training. The officer will be required to successfully complete all training for which he cannot provide documents. When this required training is completed, the officer will be certified. (5) Should the executive directorrefuse togrant credit for training previously completed, the applicant may request a hearing before the Ohio peace officer training council. Said hearing shall be held in compliance with sections 119.01 to 119.13 of the Revised Code. (6) No credit shall be given under this rule for experience which is not part of a formal training or education program. (7) All peace officers employed by a county, township, or municipal corporation of the state of Ohio on January 1, 1966, and who have completed at least sixteen years of full-time active service as such peace officer, may receive an original appointment on a permanent basis and serve as a peace officer of a county, township, or municipal corporation, or as a state university law enforcement officer without receiving a basic training certificate signed by the executive director. (C) All persons who have previously been certified by the Ohio peace officer training councit and have had their employment as a peace officer terminated for less than one year may maintain their eligibility for re-appointment as a peace officer. In the event specialized training has been mandated during the period between the date of original appointment and the reappointment date, said individual shatl be required to successfully complete the mandated specialized training upon re-entry into employment as a peace officer.

(D) All persons who have not been employed as a peace officer for one year or more but less than four years shall, upon re-entry into employment as a peace officer, attend a refresher course prescribed by the executive director. This course and appropriate examination must be approved by the executive director and shall meet the criteria set forth in these rules for the cunduct of a basic training course. (E) All persons who have not been employed as a peace officer for more than four years shall, upon re-entry into employment as a peace officer, complete a basic course. (F) Any person who has been certified by the Ohio peace officer training council and has been elected or appointed to the office of sheriff shall be considered a peace officer during the term of office for the purpose of maintaining a current and valid basic training certificate. Any training requirements required 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 auspices of the Ohio peace officer training council and who is appointed as a peace officer in Ohio may request credit for that portion of the basic training course described in this rule which is equal to that previously completed. Training or education which will be accepted would include, but is not limited to, that training or education certified by another state, another government agency, military service, the state highway patrol, a college, university or other educational institution. (2) The applicant shall provide to the executive director documented evidence of the training. The executive director shall review the record of the prior training or education and make a determination of the training or education that shall be required and that prior training or education for which credit will be given. (3) The applicant may request a hearing by the council on the ruling by the executive director relative to any additional training. Said hearing shall be held in accordance with the provisions of sections 119.01 to 119.13 of the Revised Code. (H) Every person who has been re-appointed as a peace officer shall cease performingthe functions of a peace officer or from carrying a weapon unless he has received, within one year from the date of his re-appointment, a certificate from the executive director attesting to his satisfactory completion of the above training requirements. (1) The executive director may extend the time for completion of the training requirements based upon written application from the individual and the appointing authority of the individual. Such application will contain an explanation of the circumstances which create the need for the extension. Factors which may be considered in granting or denying the extension include, but are not limited to, serious illness of the individual or an imtriediate family member, the absence of a reasonably accessible training course, or an unreasonable shortage of manpower within the employing agency. The extension shall generally be for ninety days, but in no event may the executive director grant an extension beyond one hundred eighty days. (2) Should the executive director deny the request for an extension, he shall notify the individual in writing, with a copy to the appointing authority, and shall send this notice by certified 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 the reasons for the executive director's action, cite the law or rule directly involved, and state that the party will be afforded a hearing if he requests it within thirty days of the time of mailing the notice. A copy of such notice shall be mailed to attorneys 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, council shall immediately set the date, time, and place for suchhearing and forthwith notify the party thereof. The date set for such hearing shall be within fifteen days, but not earlier than seven days, after the party has requested a hearing, unless otherwise agreed to by both the council and the party. The council shall conduct the hearing in conformance with the 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 the determination to grant or deny the request. (I) This rule shall not be construed to preclude a township, county, or municipal corporation from establishing time limits for satisfactory completion of the basic course and re-entry requirements of less than the maximum limits prescribed by the council. If a township, county, or municipal corporation has adopted timelimits less than the maximum limits prescribed above, such time limits shall be controlling. HISTORY: 1993-94 OMR 156 (A), eff, 10-1-93 1990-91 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 general RC 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 or appointed county coroner may retain his peace officer basic training certificate when he suxrenders his commission as a specialdepury sheriff. OAG 98-033. ^

record of the Council, but only those reports and recommendations approved and adopted shall be published. HISTORY: Prior PC-1-13 CROSS REFERENCES
RC 109.71, Crcation of Ohio peace officer training council; members; 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 chafrman. In the ahsence of apennanent secretary, a temporary secretary shall be appointed by the chairman. The secretary of the Council shall prepare a writtenrecord of the proceedings of each meeting of the Council. A copy of the record shall be fomarded to each member of the Council and the Attomey General of the State of Ohio within a reasonable time following such meeting.

HISTORY: Prior PC-1-15

CROSS REFERENCES
RC 109.71, Creation of Ohio peace officer training council; members; deBnitions

109:2-I-16 Explanation of the basic training course The general content of the basic course shall be as set forth in this rule. Reasonable latitude is to be permitted in order that the individual instmctor may develop his particular subject in his own way, and to permit the use of instructional methods and materials which he deems to be most appropriate and effective. Howevez, all required hours and al] student performance objectives for each topic in every unit must be taught. The course topic entitled cultural sensitivity must be scheduled 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 training, the academy's expectations for them, and the importance of 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 justice-four hours. Learrring goal: The student will understand the basic philosophies and principles of American criminal justice. (4) The criminal justice system-four hours.

109:2-1-13 Appointment of committees; reports In accordance with provisions in Section 121.22, Ohio Revised Code, the chairman may call members of Council to meet in executive session. The chairman may also appoint such committees as nray be necessary to study and research any matter affecting or pertaining to the work of the Ohio Peace Officer Training Council. The committee shall make written reports and recommendations supported by the reasons therefor to the Council, which reports shall become a permanent

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(d) The "associate of individualized study" is a degree awarded for the successful completion of an individually planned degree program designed by a student with the assistance of a designated faculty advisor, generally containing an area of concentration formed either by an interdisciplinary combination 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 program with a major emphasis in studies relating to the leadership of labor unions, designed to provide a broader understanding and perspective of economic, social, and political problems of our society and the 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 a master'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 fulltime 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 in professional 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 studies curriculum should generally hold a master's degree in the subject matter discipline, and should also show 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 of ninety 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 credit hours of course enrollment (or equivalent semester hours). (2) For maximum transferability to four-year institutions, the ninety credits should include as general education at least nine quarter credits in English composition and literature, fifteen quarter credits in the humanities, fifteen quarter credits in the social and behavioral sciences and fifteen quarter credits in 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 by community colleges, branch campuses of state universities, state community colleges, and by state universities 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 clearly identifiable with the technical skills, proficiency, and knowledge required for career competency. Most courses classified as technical should include laboratory experience. Generally, technical courses should 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 courses should 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. These courses should include oral communication, written communication, social studies, and humanities.

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3333-1-08 Standards for issuance of certificates of authorization under section 1713.03, Ohio Revised Code.
(A) Preamble (1) The standards established herein for the award of academic degrees and the conduct of instruction creditable toward such degrees rest upon the fundamental conviction of the board of regents that teaching 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 which fosters both teaching and scholarship and in which faculty, financial, physical plant, and academic support 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 of regents that the intellectual development and learning achievements of students to which academic degrees give testimony warrant and require the undivided dedication of institutions seeking identity as degree-granting colleges or universities. Accordingly, institutions seeking authority to award academic degrees or to conduct instruction creditable toward such degrees shall exist for the principal purposes of 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 instruction in 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 intention to award for successful completion of the equivalent of four semesters or six quarters of full-time study the associate degree in applied science, applied business, or in the arts, or credits applicable toward such degree; where there is the intention to award for successful completion of the equivalent of not less than eight semesters or twelve quarters of full-time study the baccalaureate degree of appropriate designation, or credits applicable toward such degree; where there is the intention to award for successful completion of the equivalent of not less than two semesters or three quarters of full-time study beyond the baccalaureate, the master's degree or appropriate designation of a graduateprofessional degree, or credits applicable toward such degrees; and where there is the intention to award 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 board of regents in accordance with forms or an outline of specifications as prepared by him. The application shall 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 regents with an authenticated copy of its articles of incorporation as filed in the office of the secretary of state of 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 of regents 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 institution is not, through its stated purposes, its financial resources, the make-up of its governing board or administrative staff, or otherwise, effectively subservient to any organization or group of persons principally dedicated to purposes other than teaching and scholarship. This provision shall not prohibit the 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 the designation 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 of course 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 of course instruction and for award of a baccalaureate in arts and sciences and in three or more professional fields of study, for a program of not less than the equivalent of two semesters or three quarters of course instruction and for award of the master's degree, for a program of not less than the equivalent 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 the associate of arts, bachelor of arts, and bachelor of science for a full range of individual programs of instruction commonly recognized by award of these general degrees. Individual approval of fields of specialization within such general degrees will ordinarily not be required. However, such approval of general degrees will not constitute authorization of technical education and professional programs of instruction 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 applied science 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 demonstrated separately 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 of philosophy in particular fields of specialization or of professional degrees such as the master of business administration, inaster ofsocial work, master of fine arts, doctor of education or the doctor of business 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 of general degrees should be limited to specific areas of instruction in accordance with demonstrated institutional resources. In such cases, limitations will be noted on the face of Certificates of Authorization issued. Institutions seeking broader authority in the use of general degrees subsequently may 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 of instruction currently operating on the effective date of this rule leading to award of previously approved 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 submit abbreviated 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 a period 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 of academic plans, and that applicant has consulted with the North Central Association of Colleges and Secondary 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 intention to qualify for regional and where appropriate professional accreditation within a reasonable period of time, not more than six years after the proposed date of initial instruction, and shall offer evidence of its current status as regards accreditation and of its efforts, plans, and timetables for achieving final accreditation. An applicant already possessing such accreditation shall be deemed to have met this requirement. 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 of academic, 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 instructional programs likely to be undertaken, the need for such service perceived by the sponsors, the clientele intended to be served, such uniqueness of programming or educational philosophy as may be inherent in 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 such self-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 carefully outlined faculty and administrative control procedures, and clear provision must have been made for assuring 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 the discipline it represents, as generally accepted by scholars in that discipline, and the courses taken together 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 to the 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 accepted for transfer by other well-established institutions of higher education wherever such transfer would ordinarily 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 and shall possess academic preparation and experience, including professional practice, appropriate to the fields of knowledge taught. Faculty persons shall be available in numbers sufficient and individually shall 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 of scholarship appropriate to the teaching services rendered. Implementing procedures: (i) The institution must demonstrate that the academic preparation and scholarly and professional practice 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 the level of instruction to which individual members are assigned (generallya doctoral degree or its equivalent 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 at the level of education to which they are assigned, and that they are engaged through scholarly and professional activities in a continuing refreshment of their academic competence. (iv) The institution must demonstrate the presence of full-time faculty persons sufficient to cover the various fields of study encompassed within the proposed curricula, to assure an on-going dedication to scholarship 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 fulland 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 learning environment 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 fulfilling the planned purposes of the proposed degree programs over time, making possible the avoidance of undue 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 to sustain all degree programs. Arrangements shall be made for a library to provide not less than 5,000 volumes for a two-year program of study, of not less than 15,000 volumes for a four-year program of study, 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 and counseling services for students, for evaluation of student performance, for continuous monitoring of the 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 for the purpose of assessing the institution's fulfiliment of these standards. The sponsoring institution must 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 examinations made by regional accrediting associations to avoid duplicative and burdensome review processes. (11) In addition to meeting the above standards, institutions whose instructional activities will encompass substantial components of teaching at locations removed from their permanent campuses, including major reliance on clinical and work-study experience or reliance upon nontraditional learning methods 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 meet a particular standard or other requirement set out herein or in section (C), the board of regents, upon request of the institution, may in its own judgment waive such requirement for certification, subject to agreement upon a specific time schedule for full compliance with such standard. In the event that an applicant perceives that some uniqueness of program design or purpose makes inappropriate a particular standard or other requirement set out herein or in section (C), the applicant may offer supplementary testimony concerning such contention, and the boardof regents may in its own judgment 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 request of the board of regents, to submit an annual report each year within a reasonable length of time after June 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 a representative 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 and where appropriate accreditation by an appropriate professional accrediting agency within six years of initial 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 a Certificate of Authorization, an appropriate certificate attesting this action by the board shall be issued to 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 its catalogue 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 learning methods and environments removed from their permanent campuses, colleges and universities properly should assume responsibility for added efforts to assure a high quality of educational experience for students served. Moving as they may do outside of long-established and home-campus based procedures for quality review and control, and in the absence at this point in time of specific accreditation review for off-campus activities, each sponsoring college and university must be prepared to bear the burden of demonstrating that sound quality control procedures are in effect. It is purpose of 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 ongoing physical campus traditionally recognized in American higher education as the permanent seat of an institution's instructional program, including its substantial and varied staffs and supporting resources, and from which off-campus instruction is most often extended. Institutions which utilize geographically dispersed arrangements for teaching and learning and which have no clearly identifiable permanent campus must bear the added burden of demonstrating that the stability of academic control, of continuing validation of credits awarded, and of supporting resources ordinarily associated with 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 important mode of operation, the applicant college or university must offer general testimony that each standard established below has been and will continue to be met. Upon request of the board of regents an applicant college or university shall offer further evidence satisfactory to the board in response to the implementing 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 an educational mission of the sponsoring college or university. Secondary or incidental purposes such as the 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 clearly related to the educational goals and objectives of the institution as they existed when the most recent accreditation 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 direct and 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 clear and 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 instructional guides have been developed and reviewed by established academic control authorities. (iii) The sponsoring institution must demonstrate that appropriate procedures have been developed and 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 level of 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 established for 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 credits earned 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 of instruction 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 assuring productive relationships between on-campus and off-campus faculty persons, consistent with their need 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.

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Implementing procedures: (i) Student services The sponsoring institution must demonstrate that on-going provision has been made for guidance and counseling services for students, for assuring student participation sufficient to promote success on the part 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 and its 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 for its central campus programming and that it has sought such accreditation as may be available to it for the specific off-campus programming sought to be offered. All institutions are urged to seek and to secure full accreditation from appropriate regional and where appropriate professional accrediting associations 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 offcampus 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 state department of education for its programs in teacher education, including a status report of off-campus programming 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 representing the 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 examinations made 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 be proposed 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 or otherwise, 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 and that the appropriate responsible officers of those institutions have entered into the agreements. (ii) The sponsoring institution must demonstrate that clear understanding exists with cooperating institutions so far as services to be rendered and the cooperating institutions' obligations of support are 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 service to 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 If a judgment by default has been entered, the court may set it aside in accordance with Rule 60(B). (C) Plaintiffs, counterclaimants, cross-claimants The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by 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 his representative capacity or agency of either unless the claimant establishes his claim or right to relief by evidence satisfactory tothe court. (Adopted eff. 7-1-70; amended eff. 7-1-71)

tion of a finding is ^ referee's v. WindOhio St.3d f sentence u findings ule, which law, took rsal of the e State ex Ohio St.3d applies to f a magisn Civ. R. ubstantive Ltence four d)]. First, ropriatelyprised forof former livision (e) act" Sengcribes the ,er of right ing of Civ. party may cision even lecision as
to Civ. R. ,e who files iclusions of cimely and 3 necessary ourt of any ly assumed ^quirement nalogous to s sufficient quirement. additional which inattention of is justified Civ. R. 53 animposed

claim, or third-party claim, and whether arising out of the same or separate transactions, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. (C) Demand for judgment A judgment by default shall not be different in kind from or exceed in amount that prayed fpr in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded the relief in the pleadings. (D) Costs Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs.
(Adop d eff. 7-1-70; amended eff. 7-1-89, 7-1-92, 7-1-94, 7-1-90

Civ R 56 Summary judgment (A) Forparty seeking affirmative relief A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part of the claim, counterclaim, cross-claim, or declaratory judgment action. A party may move for summary judgment at any time after the expiration of the time permitted under these rules for a responsive motion or pleading by the adverse party, or after service of a motion for summary judgment by the adverse party. If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court. (B) For defending party A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part of the claim, counterclaim, cross-claim, or declaratory judgment action. If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court. (C) Motion and proceedings The motion shall be served at least fourteen days before the time fixed for hearing. The adverse party, prior to the day of hearing, may serve and file opposing affidavits. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the

Civ R 55 Default (A) Entry of judgment When a party against whom a judgment for affu7native relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefor; but no judgment by default shall be entered against a minor or an incompetent person unless represented in the action by a guardian or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application. If,in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter; the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties. (B) Setting aside default judgment

record of involving esented in im, cross-

59 A-74

Rule 56

RULES OF CIVIL PROCEDURE

Should it appear to the satisfaction of the court at any time that any of the affidavits presentedpursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including 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)

evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whoin the motion foi- summaryjudginent is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (D) Case not fully adjudicated upon motion If on motion under this rule summary judgment is not rendered upon the whole case or foi- all the relief asked and a trial is necessary, the court in deciding the motion, shall examine the evidence or stipulation properly before it, and shall if practieable, ascertain what material facts exist without controversy and what material facts are actually and in good faith pontroverted_ The eourx,,shall thereuponmmalie.an order on its journal specifying 'the facts that are without controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. (E) Form of affidavits; further testimony; defense required ' Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be eutered against the party. (F) When affidavits unavailable Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.

Civ R 57 Declaratory judgments

The procedure for obtaining a declaratory judgment pui-suant to Sections 2721.01 to 2721.15, inclusive, of the Revised Code, shall be in accordance with these xules. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may advance on the trial list the hearing of an action for a declaratory 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 a general 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 be prepared and, the court having signed it, the clerk shall thereupon enter it upon the journal. A judgment is effective only when entered by the clerk upon the journal. (B) Notice of filing When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed by Civ. R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete. The failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided in App. R. 4(A). (C) Costs Entry of the judgment shall not be delayed for the taxing 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