1N THE SUPREME COURT
OF OHIO
STATE OF OHIO ex rel.
TERRANCE McCLAIN,
11091 Reservoir Place Drive
Cleveland, Ohio 44104,
CASE NO. 2009-1413
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.
John K. Lind, Esq. (#0052247)
John K. Lind, Esq. LLC
1422 Euclid Avenue
Suite 1040
Cleveland, Ohio 44115
Office 216-583-9490
Fax 216-583-0045
Cell 216-406-2668
JohnLindattornevC^hotmail.com
Attorney for Relator
Terrance McClain
2
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 e-mail on August 24, 2009 on the following:
William D. Mason, Prosecuting Attorney
Reno J. Oradini Jr.
1200 Ontario Street
The Justice Center -- Courts Tower, 8`" Floor
Cleveland, Ohio 44113
(216) 443-7769
Fax:(2l6)443-7602
roradini cuyahogacountXus
Attorney for Respondent
Cuyahoga County Board of Elections
3
IN THE SUPREME COURT
OF OHIO
STATE OF OHIO ex rel.
TERRANCE McCLAIN,
11091 Reservoir Place Drive
Cleveland, Ohio 44104,
CASE NO. 2009-1413
ORIGINAL ACTION
Relator,
FOR WRIT OF MANDAMUS
Expedited Election Action
vs.
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. (#0052247)
John K. Lind, Esq. LLC
1422 Euclid Avenue
Suite 1040
Cleveland, Ohio 44115
Office 216-583-9490
Fax 216-583-0045
Cell 216-406-2668
hotmail.co m
JohnLindattorney@Attorney for Relator
Terrance McClain
William D. Mason, Prosecuting Attorney
Reno J. Oradini Jr.
1200 Ontario Street
The Justice Center - Courts Tower, 8it' Floor
Cleveland, Ohio 44113
(216) 443-7769
Fax: (216) 443-7602
roradini(c^cuyahogacount .us
Attorney for Respondent
Cuyahoga County Board of Elections
1
RELATORS' 1VIE'RIT BRIEF
[N SUPPORT OF WRIT OF MANDAMUS
LN EXPEDTTED ELECTION ACTION
Table of Contents
Table of Authorities... .. . .. . ... . . . ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . .. ... ... ......... . ....3
Propositions of Law . . . . . . . . . . . . . . . . . . . . . .. . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .. ...4
Introduction . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 5
Statenient of the Case ... ... ...... ... ... ... ... ... ... . .. ... ... ... ... ... ... ... ... ... ... . ...... ...... . ... ... 5
Statement of F acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
Law and Analysis..... _ .. ... ... .. . ... ... ... ...... ... . .. ... ... ... ... .. . ... ... ... ... ... . .. ... ... ...... ....9
Standard of Review . . . . . . . . . . . . .. . ... . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . ....9
Argmment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... . . . 9
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 . . . . . . ... . . . . . . . . . .. . . . . . . . . . . . . . . .. . . . . . . .. . . . . . . . . . . . . . . ...9
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .. . . . .12
Certificate of Service... ... . .. ... ... ... ... ... ... .. ... ... ... ... ... ... ... ... .. . ... ..... .. ... .. . . .. ....13
2
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-566 ............................................................9
Statutory Aufhoritv:
Cleveland City Charter Chapter 3, section 5 ...................................................5,6,10
Cleveland City Charter Chapter 3, section 6 ......... ......... ... ... ......... ... ... ............ .....10
Cleveland City Charter Chapter 3, section 7 ........................................................11
Cleveland City Charter Chapter 3, section 8 ..........................................4,5,6,9,10,11
Cleveland City Charter Chapter 3, section 11 ...................................................... l l
3
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
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, 2008.
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, 2009. 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
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.
111. 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
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
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 e-mail 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, 2009 e-mail.
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, 2009. 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
qualifying signatures of Relator did not issue by e-mail from Respondent until July 23, 2009. 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, 2008. There
is no law relating to this statute, the meaning of which which Relator claims is plain on its face.
9
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
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
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. (#0052247)
9ohn K. Lind, Esq. LLC
1422 Euclid Avenue
Suite 1040
12
Cleveland, Ohio 44115
Office 216-583-9490
Fax 216-583-0045
Cel1216-406-2668
7olmLindattorney(t^hotmail. com
Attorney for Relator
Terrance McClain
13
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 e-mail on August 24, 2009 on the following:
William D. Mason, Prosecuting Attorney
Reno J. Oradini Jr.
1200 Ontario Street
The Justice Center - Courts Tower, 8`h Floor
Cleveland, Ohio 44113
(216) 443-7769
Fax: (216) 443-7602
roradini cu ahotta countvus
Attorney for Respondent
Cuyahoga County Board of Elections
14