NO IN THE SUPREME COURT OF THE STATE OF OHIO STATE OF OHIO EXRELATIONE MITCHELL W. ALLEN, Relator,

Transcription

1 CASE NO IN THE SUPREME COURT OF THE STATE OF OHIO STATE OF OHIO EXRELATIONE MITCHELL W. ALLEN, Relator, V. WARREN COUNTY BOARD OF ELECTIONS, ET AL.,, Respondents. ORIGINAL ACTION FOR MANDAMUS ELECTION-RELATED MATTER r u L JUL CLERK OF COURT SUPREME COURT OF OHIO VERIFIED COMPLAINT FOR WRIT OF MANDAMUS Curt C. Hartman ( ) THE LAW FIRM OF CURT C. HARTMAN 3749 Fox Point Court Amelia, OH Telephone: (513) Counsel for Relator Mitchell W. Allen

2 SUPREME COURT OF THE STATE OF OHIO STATE OF OHIO EX RELATIDNE MITCHELL W. ALLEN 4035 Westridge Drive Mason, Ohio Case No. Relator, v. WARREN COUNTY BOARD OF ELECTIONS : VERIFIED COMPLAINT % Michael Moore, Executive Director. FOR WRIT OF MANDAMUS and DAVID FORNSHELL, in his official capacity as a member of the Board of Elections of Warren County, Ohio and. ORIGINAL ACTION. FOR MANDAMUS ELECTION-RELATED MATTER LESLIE J. SPAETH, in his official capacity as a member of the Board of Elections of Warren County, Ohio and BARB^ RA SIZEMORE, in lt^official capacity as a member of the Board of Elections of Warren County, Ohio and [ continued on next pagej

3 BEV^E^RLY A. MOORE, in lhs official capacity as a member of the Board of Elections of Warren County, Ohio Respondents. Relator, Mitchell Allen, on relation to the State of Ohio, brings this action in order to obtain the issuance of a writ of mandamus compelling to accept and to certify the nominating petitions of Relator and to place Relator's name on the general election ballot in November 2007 as a candidate for judge in the Mason Municipal Court. 1. Relator Mitchell A. Allen is a citizen of the State of Ohio and, as developed below, previously filed nominating petitions with the Board of Elections of Warren County, Ohio, to run as a nonpartisan candidate for judge of the Mason Municipal Court. 2. Respondent David Fornsell (hereinafter; "Respondent Fornshell") is a member of the Board of Elections of Warren County and, as such, is a public official under the laws of the State of Ohio. 3. Respondent Leslie J. Spaeth (hereinafter, "Respondent Spaeth") is a member of the Board of Elections of Warren County and, as such, is a public official under the laws of the State of Ohio. 4. Respondent Barbara Sizemore (hereinafter, "Respondent Sizemore") is a member of the Board of Elections of Warren County and, as such, is a public official under the laws of the State of Ohio. 5. Respondent Beverly A. Moore (hereinafter, "Respondent Moore") is a member of -2-

4 the Board of Elections of Warren County and, as such, is a public official under the laws of the State of Ohio. 6. Collectively, Respondent Fornshell, Respondent Spaeth, Respondent Sizemore, and Respondent Moore comprise and constitute the Respondent Warren County Board of Elections. Hereinafter, references to the "Warren County Board of Elections" shall include the individual members thereof. 7. The Mason Municipal Court is formed and organized to R.C In addition to having jurisdiction within The Municipality of Mason, the Mason Municipal Court has jurisdiction within Deerfield Township, in Warren County, Ohio. 9. As such, the Warren County Board of Elections has jurisdiction and the authority for conducting and holding the elections for the judge of the Mason Municipal Court, including the review and acceptance of nominating petitions therefor. 10. Pursuant to R.C , the qualifications for a municipal court judge (including the judge for the Mason Municipal Court) is that a municipal court judge "shall be a qualified elector and a resident of the territory of the court to which he is elected or appointed. A municipal judge shall have been admitted to the practice of law in this state and shall have been, for a total of at least six years preceding his appointment or the commencement of his term, engaged in the practice of law in this state or served as a judge of a court of record in any jurisdiction in the United States, or both." No other requirements to qualify for municipal court judge is set forth by the Revised Code. 11. Relator meets all of the statutory qualifications to be a municipal court judge. 12. Pursuant to R.C (A), "[a]il municipal court judges shall be elected on the -3-

5 nonpartisan ballot for terms of six years." 13. Pursuant to R.C (B), "[i]f the jurisdiction of a municipal court extends beyond the corporate limits of the municipal corporation in which it is located..., noppartisan candidates for the office of municipal court judge shall file nominating petitions not later than four p.m. of the day before the day of the primary election in the form prescribed by section of the Revised Code." 14. Accordingly, Relator filed his nominating petition as a nonpartisan candidate for Mason Municipal Court judge on or before May 7, Pursuant to R.C (B), "[a]ll candidates for municipal court judge may be nominated either by nominating petition or by primary election Pursuant to R.C (B), "[a]t the following regular municipal election, the candidacies of the judges nominated shall be submitted to the electors of the territory on a nonpartisan, judicial ballot.. :." 17. The nominating petition submitted by Relator to the Warren County Board of Elections was valid in all respects and contained a sufficient number of signatures of qualified electors. 18. Pursuant to R.C (K), Respondents, constituting the Warren County Board of Elections, have the legal duty to "[r]eview, examine, and certify the sufficiency and validity of petitions and nomination papers... " 19. In reviewing, examining and certifying the sufficiency and validity of petitions and nomination papers, the Warren County Board of Elections is obligated to follow the mandate of R.C which compels the board of elections to accept petitions, i.e., to certify a candidate's names to the ballot, unless one of the specifically statutory-enumerated grounds exists -5-

6 by which a board of election may reject the candidacy or petition. 20. None of the statutory-enumerated grounds set forth in R.C existed by which the Warren County Board of Elections could reject the candidacy or nominating petitions of the Relator. 21. Accordingly, Respondents have a clear legal duty to accept and to certify the nominating petitions of Relator and to place Relator's name on the general election ballot in November 2007 as a candidate for judge in the Mason Municipal Court. 22. On or about July 6, 2007, Relator received a letter from the Director of the Warren County Board of Elections, a true and accurate copy of which is attached hereto as Exhibit A, advising Relator that, at a meeting on July 3, 2007, Respondents voted not to certify the validity of the Relator's nomination petitions. 23. As a result of the action by Respondents on July 3, 2007, Respondents will not place the name of Relator on the general election ballot in November 2007 as a candidate for judge of the Mason Municipal Court. 24. The decision of Respondent to not accept or to certify the nominating petitions of Relator nor to place Relator's name on the general election ballot is the result of an abuse of discretion and a clear disregard of applicable law. 25. Relator has a clear legal right to have his nominating petitions for judge of the Mason Municipal Court accepted and certified by the Warren County Board of Elections and to have his name placed on the general election ballot in November 2007 as a candidate for judge of the Mason Municipal Court. 26. Relator has no adequate remedy in the ordinary course of law and case law clearly -6-

7 establishes that relief in mandamus is the proper remedy for the failure of a board of elections to accept and certify petitions on behalf of a candidate and to place said candidate's name on the ballot. WHEREFORE, Relator seeks a Peremptory Writ of Mandamus or, in the altemative, an Alternative Writ of Mandamus commanding Respondents immediately to accept and to certify the nominating petitions of Relator for judge of the Mason Municipal Court and to place Relator's name on the general election ballot in November 2007 as a candidate for judge in the Mason Municipal Court, together with any other relief to which they may be entitled, in law or in equity, including an award of attorney fees. lly sulimi Hartman ( The L^w Firm of Curt C. Hartman 3749 Fox Point Court Amelia, Ohio (513) (513) (fax) Attorney for Relator Mitchell W. Allen

8 VERIFICATION STATE OF OHIO ) ) ss: COUNTY OF WARREN ) Mitchell W. Allen, having been first duly cautioned and sworn, states that he is the Relator, that he has read this Verified Complaint for Writ of Mandamus and that its facts are true and accurate t^ «ti,o >`...,_:- i---w'-a,. a'--i. vi{rn1a Sworn to, affirmed and subscribed to before e, a Notary Public in Ohio, and in my presence, this 14th day of July 2007/ CURT C.1-iARTMAN Anomejr at Law Notary Public, State of Ohlo My Ca^ Has No Pxp4atlea Date. Seclion O.R.C.

9 LESLIE J. SPAETH Chairman DAVID P. FORNSHELL BEVERLY A. MOORE BARBARA SIZEMORE OARD OF ^^^^^^^S WARREN COUNTY, OHIO 406 JUSTICE DR., ROOM 323 LEBANON, OHIO MICHAEL E. MOORE Director of Elections SUSAN JOHNSON Deputy Dtrector of Elections July 3, 2007 Mr. Mitchell W. Allen 4035 Westridge Drive Mason, Ohio Dear Mr. Allen, Please take notice that at a regular meeting of the Board of Elections on July 3, 2007, the Board voted not to certify the validity of your petition and declaration of candidacy for Mason Municipal Court Judge. The decision was based upon Secretary of State Advisory Opinion No and cases cited therein.. call. If you have any questions concerning this matter, please do not hesitate to Sincerely, Michael E. Moore Director of Elections z, %^3 '<a-k-- cc: file EXHIBIT A (513) (513) (513) (937)