Summary
In Hawkins, 28 Ohio St.2d at 5, 57 O.O.2d 63, 274 N.E.2d 563, we quoted a former version of R.C. 3513.261 in effect at the time that required candidates to file an affidavit with the statement of candidacy.
Summary of this case from State ex Rel. Rust v. Lucas Cty. Bd., ElecOpinion
No. 71-580
Decided October 6, 1971.
Elections — Declaration of candidacy and nominating petition — Original of signed declaration not filed — Board of Elections not under duty to accept petition — Mandamus not available — R.C. 3513.261.
IN MANDAMUS.
Relator, John C. Hawkins, seeks to require the Board of Elections of Cuyahoga County to accept his nominating petition as a candidate for Mayor of Cleveland and to place his name on the ballot at the November 1971 municipal election. His complaint avers that he signed and swore to his statement of candidacy at the top of the nominating petition and that his name was then subscribed in the presence of a notary public as required by R.C. 3513.261. Photo offset copies of that originally signed statement of candidacy were then made and circulated. Over 16,000 voters' signatures were obtained and notarized. The circulated part-petitions, containing a copy of the original statement of candidacy, were then filed with respondent prior to the filing deadline. The petition containing relator's originally signed and notarized statement of candidacy was not filed with the respondent.
Respondent board deadlocked in their vote on the issue of whether relator's filing had complied with requirements of R.C. 3513.261. The Secretary of State then voted to exclude relator from the ballot because of his failure to timely file the petition containing his originally signed, sworn and notarized statement of candidacy.
The cause is now before us upon respondent's motion to dismiss the complaint.
Mr. Albert L. Purola, for relator.
Mr. John T. Corrigan, prosecuting attorney, and Mr. John L. Dowling, for respondent.
R.C. 3513.261 states, in pertinent part: "A nominating petition may consist of one or more separate petition papers * * *. If the petition consists of more than one separate petition paper, the statement of candidacy of the candidate named need be signed by the candidate and his affidavit thereto need be subscribed by him and executed on only one of such separate petition papers, but the statement of candidacy so signed, subscribed, and executed, shall be copied on each other separate petition paper before the signatures of electors are placed thereon." (Emphasis added.)
Relator contends that he has substantially complied with R.C. 3513.261, and therefore has a right to the relief sought. He relies particularly on State, ex rel. Kroeger, v. Leonard (1949), 151 Ohio St. 197, and Stern v. Board of Elections (1968), 14 Ohio St.2d 175, both of which discuss substantial compliance. Kroeger, however, affirmed the Court of Appeals which had denied a writ of mandamus because the circulator's oath did not indicate his membership in a political party, noting that the board of elections did not violate "a plain legal duty by refusing the petitions." In Stern, relator sought removal of names from the ballot by injunction because of a defective jurat. There, the board had approved the petitions, and, further, this court was not faced with the "plain legal duty" requirements of mandamus.
Respondent relies essentially on State, ex rel. Ferguson, v. Brown (1962), 173 Ohio St. 317, which we feel is dispositive of the case at bar. At page 319, the court stated:
"* * * such declaration may be an original one at the head of each petition paper circulated, signed by the candidate individually * * * or there may be a single complete original declaration with identical copies thereof heading all other separate nominating petition papers * * *." (Emphasis added.)
Since relator failed to timely file his petition containing at least one originally signed and notarized statement of candidacy, as the statute requires, respondent is not under a clear legal duty to place his name on the ballot.
The respondent's motion to dismiss is sustained and the writ is denied.
Writ denied.
O'NEILL, C.J., HERBERT, CORRIGAN and LEACH, JJ., concur.
SCHNEIDER, DUNCAN and STERN, JJ., dissent.
Ferguson ( 173 Ohio St. 317) involved clearly defective declarations of candidacy and petitions. Even so, the per curiam language of Ferguson, as quoted in the majority opinion in this case, does not require the result reached here. No statute and no judicial language presented to us forbids the use of identical copies of an original declaration or requires the original to be filed.
DUNCAN and STERN, JJ., concur in the foregoing dissenting opinion.