1N THE SUPREME COURT OF OHIO. CASE NO Cleveland, Ohio 44104, RELATORS' MOTION FOR Relator, ) RECONSIDERATION

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1 1N THE SUPREME COURT OF OHIO STATE OF OHIO ex rel. TERRANCE McCLAIN, Reservoir Place Drive CASE NO Cleveland, Ohio 44104, RELATORS' MOTION FOR Relator, ) RECONSIDERATION vs. Expedited Election Action CUYAHOGA COUNTY BOARD OF ELECTIONS 2925 Euclid Avenue, Cleveland, Ohio 44115, Respondent. Relator respectfully requests this Court reconsider its Entry filed August 19, 2009 dismissing this matter sua sponte for failure to prosecute. In this matter Relator filed a Verified Complaint with exhibits and cited authorities within the body of the complaint. That pleading included the entire record of proceedings and argument and was verily believed to satisfy the requirement of a Merit Brief in this matter. Based on this Court's Entry it is now understood that belief was mistaken aud the proposed Merit Brief which tracks the content and substance of the Verified Complaint is attached for submission de novo. WFIEREFORE, Relator respectfully requests that the within motion be granted and that the attached Merit Brief be accepted for filing de novo.

2 John K. Lind, Esq. (# ) John K. Lind, Esq. LLC 1422 Euclid Avenue Suite 1040 Cleveland, Ohio Office Fax Cell JohnLindattornevC^hotmail.com Attorney for Relator Terrance McClain 2

3 CER'I'IFICA'TE OF SERVICE I hereby certify that a true and complete copy of the foregoing Motion for Reconsideration and Merit Brief were served via on August 24, 2009 on the following: William D. Mason, Prosecuting Attorney Reno J. Oradini Jr Ontario Street The Justice Center -- Courts Tower, 8`" Floor Cleveland, Ohio (216) Fax:(2l6) roradini cu y ahogacountxus Attorney for Respondent Cuyahoga County Board of Elections 3

4 IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel. TERRANCE McCLAIN, Reservoir Place Drive Cleveland, Ohio 44104, vs. Relator, CASE NO ORIGINAL ACTION FOR WRIT OF MANDAMUS Expedited Election Action CUYAFIOGA COIINTY BOARD OF ELECTION S 2925 Euclid Avenue, Cleveland, Ohio 44115, Respondent. RELATORS' MERIT BRIEF IN SUPPORT OF WRIT OF MANDAMUS IN EXPEDITED ELECTION ACTION John K. Lind, Esq. (# ) John K. Lind, Esq. LLC 1422 Euclid Avenue Suite 1040 Cleveland, Ohio Office Fax Cell JohnLindattorney@- hotmail.com Attorney for Relator Terrance McClain William D. Mason, Prosecuting Attorney Reno J. Oradini Jr Ontario Street The Justice Center - Courts Tower, 8it' Floor Cleveland, Ohio (216) Fax: (216) roradini(c^cuyahogacount.us Attorney for Respondent Cuyahoga County Board of Elections 1

5 RELATORS' 1VIE'RIT BRIEF [N SUPPORT OF WRIT OF MANDAMUS LN EXPEDTTED ELECTION ACTION Table of Contents Table of Authorities Propositions of Law Introduction Statenient of the Case Statement of F acts Law and Analysis... _ Standard of Review Argmment Proposition of Law No. 1 The Cuyahoga County Board of Elections incorrectly interpreted Chapter 3 section 8 of the Charter of the City of Cleveland as requiring the submission of 200 albeit non-complying signatures as a condition precedent to qualifying for the statutorily mandated five (5) additional days to submit additional petition papers Conclusion Certificate of Service

6 RELATORS' MERIT BRIEF IN SUPPORT Or WRIT OF MANDAMUS IN EXPEDITED ELECTION ACTION Table of Authorities Case Law: State ex rel. GYounds v. Hocking County Board of L7ections, et ar`., 117 Ohio St.3d 116, 118, 2008-Ohio Statutory Aufhoritv: Cleveland City Charter Chapter 3, section 5...5,6,10 Cleveland City Charter Chapter 3, section Cleveland City Charter Chapter 3, section Cleveland City Charter Chapter 3, section 8...4,5,6,9,10,11 Cleveland City Charter Chapter 3, section l l 3

7 RELATORS' MERIT BRIEF IN SUPPORT OF WRIT OF MANDAMUS IN EXPEDITED ELECTION ACTION Proposition of Law PrOpOsition of Law 1. 'rhe Cuyahoga County Board of Elections incorrectly interpreted Chapter 3 section 8 of the Charter of the City of Cleveland as requiring the submission of 200 albeit non-complying signatures as a condition precedent to qualifying for the statutorily mandated five (5) additional days to submit additional petition papers. 4

8 RELATORS' MERIT BRIEF IN SUPPORT OF WRIT OF MANDAMUS IN EXPEDITED ELECTION ACTION 1. 1NTRODUCTION Relator Terrance McClain, a proposed candidate for the primary election for Ward 2 Councilman in the City of Cleveland brings this action in Mandamus necessary to enforce the administration of justice. Relator brings this action as an expedited elections matter in order to seek immediate guidance and relief from this Court resulting from an incorrect interpretation of recently enacted Chapter 3 (the "Relevant Chapter") section 8 of the Charter of the City of Cleveland granting an additional five (5) days to collect the necessary signatures once a proposed candidate has filed a Statement of Candidacy and notninating petitions that are determined to not have the necessary 200 signatures pursuant to Chapter 3 section 5 of the Relevant Chapter. This is a matter of first impression involving a statute effective November 8, II. STATEMENT OF THE CASE This is an original action brought as an expedited election matter to challenge the incorrect interpretation of a recently enacted statute governing the submission of nominating petitions for a candidate to be included on the primary ballot for the primary election scheduled for September 8, The statute at issue is section 8 of Chapter 3 of the Charter of the City of Cleveland (effective Nov. 8, 2008) which grants a proposed candidate an additional five (5) days to collect the necessary 200 nominating petitions as required under section 5 of that same chapter. The Cuyahoga County Board of elections has incorrectly taken the position that a candidate must first submit 200 signatures (albeit non-conforming signatures) before the five (5) 5

9 additional days will be granted to a candidate. On their face the statutes at issue are not in conflict and do not support this interpretation. Full meaning can be given to both sections of the Relevant Chapter without imposing an unexpressed condition precedent to Section 8 of the Relevant Chapter. Section 8 does not state as a condition precedent that 200 signatures are required before the granting of five (5) additional days. Indeed, the statute expresses no condition to qualification for the additional time, other than the determination that an insufficient number of qualified electors have been submitted. With respect to the requirement expressed in section 5 of the Relevant Chapter that 200 valid electors must eventually sign the nominating petitions, that provision speaks directly to the minimum qualifications of an accepted candidate to be named on the ballot that is prepared after that final determination is made. It expresses nothing with respect to the initial submission. Were Respondent's position to be accepted then the forms could be filled out with any number of non-compliant signatures to amass the balance of 200 signatures purportedly required in order to receive the additional five (5) days required by law. That is obviously not a result that any reasonable legislator could have intended and is not a result that could be imposed on the plain meaning of the statute, but for the interpretation by the Cuyahoga County Board of Elections STATEMENT OF FACTS The facts and documentary evidence in this case are relatively straightforward and more specifically recited in the Verified Complaint and its attachments. On June 25, 2009 Relator timely filed his initial Statement of Candidacy and nominating petitions for the Office of Cleveland City Councilman for Ward 2. (Verified Complaint at 6

10 paragraph 6). Attached to the Verified Complaint as Exliibit 2 are complete copies of the initial Statement of Candidacy and nominating petitions. On June 25, 2009 the Cuyahoga County Board of Elections office that accepts the filings issued a document to Relator entitled Acknowledgement of Petition Filing Rules of the City of Cleveland that correctly expresses the new "five day nile" according to the controlling statute, a Receipt for the $45.00 filing fees and an Official Petition Filing Receipt, at the bottom of which Brent Lawler of that office hand wrote that 200 signatures were required, notwithstanding the clear and unambiguous statement of the new rule on the other official form. (Verified Complaint at paragraph 7). Attaehed to the Verified Complaint as Exhibit 3 are complete copies of the receipts issued by the Cuyahoga County Board of Elections. At the time of the initial filing Relator Terrance McClain discussed the matter with Mr. Lawler and chose the option to take the matter up with the Board of Elections. (Verified Complaint at paragraph 8). On July 2, 2009, within the required 10 days from the date of filing of the initial petitions the Cuyahoga County Board of Elections convened a hearing to discuss the issue of the 5 day rule. (Verified Complaint at paragraph 9)_ Attached to the Verified Complaint as Exhibit 4 is a complete copy of the transcript of the official proceedings of the Cuyahoga County Board of Elections. The hearing transcript pages relevant to Relator's hearing are at pages 1 through 11. Essentially, the Board allowed Relator to acquire the additional petition papers and Board member McNair asked to refer the question on the recently enacted statute to the Department of Law of the City of Cleveland. (Verified Complaint at paragraph 10). 7

11 On July 6, 2009 Relator timely filed the additional petition papers. (Verified Complaint at paragraph 11). Attached to the Verified Complaint as Exhibit 5 are complete copies of the additional petition papers and receipt of filing. On July 13, 2009 the Law Department of the City of Cleveland issued a memorandum opinion interpreting the newly enacted statute that is at the center of this dispute. (Verified Complaint at paragraph 12). Attached to the Verified Complaint as Exhibit 6 is a complete copy of the Department of Law memorandum. By dated July 23, 2009 Brent Lawler acknowledged that Relator had filed 340 valid signatures. (Verified Complaint at paragraph 14). Attached to the Verified Complaint as Exhibit 7 is a complete copy of the July 23, As a result of the Department of Law letter the Cuyahoga County Board of Elections sua sponte rejected Relator Terrance McClain's filings and refused to list him as a Ward 2 primary candidate for Cleveland City Council and the official government website confirms that Relator has not been listed as a candidate. (Verified Complaint at paragraphs 15 and 16). Attached to the Verified Complaint as Exhibit 1 is a copy of the portions of the Cuyahoga County Board of Elections website showing that Relator has been omitted from the official slate of candidates for Ward 2. The actions by the Cuyahoga County Board of Elections denied Relator his legitimate opportunity to be listed on the official ballots and a very short period of time to commence this action relative to "early voting" that began on August 4, I-Iad Respondent taken the proper action according to the time expressed in the relevant statutes then ballots omitting Relators' name would not have been printed and disseminated. The legal opinion had issued on July 13, 2009 and the acknowledgement from the Cuyahoga County Board of Elections regarding the 8

12 qualifying signatures of Relator did not issue by from Respondent until July 23, By the time that Relator was told that he had submitted sufficient signatures to qualify the preparation of ballots was already undeiway. IV. LAW AND ANALYSIS A. Standard of Review To be entitled to the writ, Relator must establisli a clear legal right to certification of his candidacy and placement of his name on the November 6 election ballot, a corresponding clear legal duty on the pait of the board of elections to certify his candidacy and place his name on the ballot, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Grounds v. Hocking Caunty Board of Elections, el al., 117 Ohio St.3d 116, 118, 2008-Ohio-566. Given the proximity of the election, Relator has established that he lacks an adequate remedy in the ordinary course of law. State ex rel. Grounds, supra at 118. For the remaining requirements, to establish the requisite legal right and legal duty, Relator "must prove that the board of elections engaged in fraud, corruption, abuse of discretioti, or clear disregard of statutes or other pertinent law." State ex rel. Grounds, supra at 118. B. Argument ProtDosition of Law 1. The Cuyahoga County Board of Elections incorrectly interpreted Chapter 3 section 8 of the Charter of the City of Cleveland as requiring the submission of 200 albeit non-complying signatures as a condition precedent to qualifying for the statutorily mandated five (5) additional days to submit additional petition papers. This is a matter of first impression involving a statute effective November 8, There is no law relating to this statute, the meaning of which which Relator claims is plain on its face. 9

13 The actions by the Cuyahoga County Board of Elections are wrong for the simple reason that section 8 of the Relevant Chapter on its face does not require a minimum of 200 signatures in order for a potential candidate to qualify for the additional five (5) days to collect the required minimuni number of 200 signatures. In the event any candidate that has timely submitted a Statement of Candidacy and nominating petitions fails within the ensuing five (5) days to submit the required minimum of 200 signatures of qualified electors then that candidate will not be included on the ballot. The process expressed in the statutes is really that simple. Chapter 3 of the Charter of the City of Cleveland governs Nomitiations and Elections (the "Relevant Chapter"). The Relevant Chapter provides in pertinent part at section 5(effective October 8, 1971) that "the name of any elector of the City shall be printed upon the ballot, when a petition in the form hereinafter prescribed shall have been filed in his behalf with the election authorities. Such petition shall be signed... by at least two hundred (200) electors of the ward if for the nomination for an office to be filled by election from a ward. The Relevant Chapter provides at section 6 (effective November 4, 2008) that "the signatures to a nominating petition need not be appended to one paper, but on each separate paper the circulator shall indicate the number of signatures contained in the petition, and shall sign a statement made under penalty of election falsification that the circulator witnesses the affixing of each signature, that all signers were to the best of the circulator's knowledge and belief qualified to sign, and that every signature is to the best of the circulator's knowledge and belief the signature of the person whose name it purports to be_ Each signer of a petition shall sign his or her name in ink or indelible pencil, and shall place on the petition after his or her 10

14 name the signer's place of residence by street and number, or other description sufficient to identify the place, and give the date when the signer's signature was made." The Relevant Chapter provides at section 7 (effective November 8, 2008) an exemplar of the forms to be used for the statement of candidacy and notninating petition papers. The Relevant Chapter provides at section 8 (effective November 8, 2008) that "All separate papers comprising a statement of candidacy and nominating petition shall be assembled and filed with the election authorities as one instrument no later than four p.m_ on the seventyfifthday prior to the day of the primary election. Within ten days after the filing of a nominating petition the election authorities shall notify the person named therein as a candidate whether the petition is found to be signed by the required number of qualified electors. If insufficient, the person named tlaerein as candidate may, amend the petition by filing tivithin five (5) tlays after notification of insufficiency by the election authorities, additional petition papers. Within five (5) days after the filing of the rulditional petition papers, the election authorities shall notify the person named therein as candidate whether the amended petition is found to be signed by the required nun:ber of qualified electors. (emphasis supplied). The Relevant Chapter provides at section 1 I(effective November 8, 2008) that "All ballots used in elections held under authority of this Charter shall be without party marks or designations. Ballots used for the nomination or election of candidates shall contain a complete list of the offices to be filled, and the names of candidates for each office shall be arranged under the title thereof. Voters shall record their choices in the manner prescribed by the general law of the State." It is appropriate for this Court to take action and issue the requested writ requiring Relator's name to be placed on the ballot for Cleveland City Councilman for Ward 2 because 11

15 Relator has met every requirement that is a condition for relief As required by State ex rel. Grounds v. Hocking County Board ofelections, et al., 117 Ohio St. 3d 116, 2008-Ohio-566 Relator has established a clear legal right to certification of his candidacy and placement of his name on the November 6 election ballot, a corresponding clear legal duty on the part of the board of elections to certify his candidacy and place his name on the ballot, and the lack of an adequate remedy in the ordinary course of law. Relator has also established that given the proximity of the election that lie lacks an adequate remedy in the ordinary course of law. Realtor has furthermore proved the requisite legal right and legal duty, by establishing that Respondent Board of Elections engaged in a clear disregard of statutes or other pertinent law. In this action, Relator has submitted facts and documentary evidence proving that he timely filed more than the minimum required number of nominating petitions signed by qualifying electors and those qualifying signatures have been acknowledged by the Cuyahoga County Board of Elections. Relator has also proved that Respondent has omitted Relator's name on the ballots that have been distributed. Without action by this Court, Relator will have no other remedy. CONCLUSlON For the foregoing reasons, Relator requests that this Court grant a writ of mandamus requiring Respondent to name Relator as a primary candidate for Cleveland City Councilman for Ward 2. n K. Lihd, Esq. (# ) 9ohn K. Lind, Esq. LLC 1422 Euclid Avenue Suite

16 Cleveland, Ohio Office Fax Cel olmLindattorney(t^hotmail. com Attorney for Relator Terrance McClain 13

17 CERTIFICA'fE OF SERVICE I hereby certify that a true and complete copy of the foregoing Motion for Reconsideration and Merit Brief were served via on August 24, 2009 on the following: William D. Mason, Prosecuting Attorney Reno J. Oradini Jr Ontario Street The Justice Center - Courts Tower, 8`h Floor Cleveland, Ohio (216) Fax: (216) roradini cu aho tt acountvus Attorney for Respondent Cuyahoga County Board of Elections 14