Opinion
No. 83-1552
Decided October 20, 1983.
Elections — Municipal corporations — "Residency" determined, how — R.C. 3503.02 — Municipality where family resides.
IN MANDAMUS.
IN PROHIBITION.
Arthur P. Lambros filed a declaration of candidacy and petition for election to the office of law director for the city of Brook Park in the November 8, 1983 election. Relator, John W. Spangler, a qualified elector of the city of Brook Park, filed a protest with respondent, Board of Elections for Cuyahoga County, against the candidacy of Lambros. The protest alleged that Lambros was not a resident of the city of Brook Park as required by Section 14.01(a), Article XIV of the Charter of the city of Brook Park.
Section 14.01(a), Article XIV of the Charter of the city of Brook Park provides, in relevant part:
"With the exception of the head of the Division of Engineering and other appointive position[s] specifically exempted by this charter or by the Council, every Councilman or other officer or employee in the unclassified service of the City shall have been for at least one (1) year prior to his election or appointment and during his term of office or employment shall continue to be a resident of the City, and with respect to elected officials shall be qualified electors thereof. * * *"
On September 9, 1983, respondent conducted a hearing on relator's protest at which Lambros appeared as a witness. Lambros stated that he resides at 6070 Hardin in the city of Brook Park with his adult son. Lambros leased the house in late August 1982 under a fifteen-month lease. He testified that he sleeps in the house in Brook Park from two to four nights a week when he is required to work late in that city. (He is currently the duly appointed law director for the city of Brook Park and, for that position, is not subject to the residency requirement.)
When not at the Brook Park address, Lambros lives at 4165 Diane Drive in the city of Fairview Park where his wife and minor children reside. Mr. Lambros owns the home in Fairview Park and has lived there since 1963. Lambros testified that he is not separated from his wife and that his family has no present intention of moving to the city of Brook Park.
At the close of the hearing, respondent concluded that Lambros was a resident of Brook Park and dismissed relator's protest.
Relator then brought this action in mandamus and prohibition alleging that respondent abused its discretion in dismissing relator's protest, its decision being arbitrary, unreasonable and in disregard of applicable law. Relator requests the issuance of a writ to compel respondent to remove Lambros' name from the ballot for the municipal election to be held on November 8, 1983.
Although relator styles his complaint as one in mandamus and prohibition, he seeks only mandamus relief.
Ms. Bessie J. Cassaro, for relator.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Thomas P. Gill, for respondent.
It is well-settled that the decision of a board of elections will not be disturbed absent a showing that the decision constituted an abuse of discretion or clear disregard of applicable law. See State, ex rel. Flynn, v. Bd. of Elections (1955), 164 Ohio St. 193 [57 O.O. 402], paragraph one of the syllabus; State, ex rel. Senn, v. Bd. of Elections (1977), 51 Ohio St.2d 173, 175 [5 O.O.3d 381]; State, ex rel. Morrison, v. Bd. of Elections (1980), 63 Ohio St.2d 336, 338-339 [17 O.O.3d 420]. Thus, our review is limited to determining whether respondent's decision that Lambros was a resident of Brook Park constituted an abuse of discretion or clear disregard of applicable law.
R.C. 3503.02 sets forth the rules for determining voter residence and provides, in part:
"(D) The place where the family of a married man or woman resides shall be considered to be his or her place of residence; except that when the husband and wife have separated and live apart, the place where he or she resides the length of time required to entitle a person to vote shall be considered to be his or her place of residence."
Under the terms of R.C. 3503.02(D), Lambros' residence must be considered as being in the city of Fairview Park where his family resides.
This statute has not been construed strictly under all circumstances. In State, ex rel. Lakes, v. Bd. of Elections (1954), 161 Ohio St. 341 [53 O.O. 249], this court held that a married man did not lose his voting residence in Mad River Township just because his wife and child moved temporarily to Dayton to obtain schooling for his child who was afflicted with infantile paralysis. Similarly, in Cox v. Union City (1948), 84 Ohio App. 279 [39 O.O. 412], a married man was not denied a voting residence in Union City, Ohio because his wife temporarily lived in Union City, Indiana due to a housing shortage, having the intention of joining her husband as soon as accommodations could be located.
The exceptions defined in these cases, however, do not support respondent's decision herein. In both of these cases, the families at issue were residing elsewhere on a temporary basis, with the intention of returning. In the case at bar, there was no evidence that the residence of Lambros' family in Fairview Park was temporary or that they ever intended to live in the city of Brook Park.
All the evidence relevant to a determination under R.C. 3503.02(D) and cases construing that section support the conclusion that Lambros is a resident of the city of Fairview Park. We therefore conclude that respomdent's decision dismissing relator's protest constituted an abuse of discretion and was entered without regard to R.C. 3503.02(D).
Accordingly, we hereby allow a writ of mandamus to compel respondent to strike the name of Arthur P. Lambros from the ballot for the municipal election to be held in the city of Book Park on November 8, 1983.
Writ allowed.
CELEBREZZE, C.J., SWEENEY, C. BROWN and J.P. CELEBREZZE, JJ., concur.
W. BROWN, LOCHER and HOLMES, JJ., dissent.
I would deny the writ, thus allowing the citizens of Brook Park to decide who their law director should be rather than permitting this court to make that decision for them.
In compelling the board of elections to strike the name of Arthur P. Lambros from the ballot, the majority has failed to set forth fully the statutorily created test for determining voter residency, has ignored critical evidence in the record supporting the board's conclusion, and has disregarded established case law which limits this court's review of a board's decision.
The majority states that "[u]nder the terms of R.C. 3503.02(D), Lambros' residence must be considered as being in the city of Fairview Park where his family resides." However, subsection (A) of R.C. 3503.02 also sets forth a rule for determining voter residency and provides as follows:
"That place shall be considered the residence of a person in which his habitation is fixed and to which, whenever he is absent, he has the intention of returning." (Emphasis added.)
In the case at bar, no evidence was presented to refute Lambros' assertion that he intended to make Brook Park his permanent residence. Furthermore, I disagree with the majority's assessment that all the evidence supports the conclusion that Lambros is a resident of the city of Fairview Park. Specifically, the record contains evidence that Lambros and his wife maintain separate residences due to the demands of their respective occupations and the requirements of their children's schooling.
Lambros' minor children attend school in the city of Rocky River which is adjacent to Fairview Park and his wife conducts an exercise business in the city of Fairview Park. Lambros' law offices are located in Brook Park.
In reviewing a determination of a board of elections, this court may not overturn a board's decision simply because it would have found differently. Rather, it is well-established that this court will only overturn a board's decision if that decision is "* * * tainted with fraud or corruption or resulted from an abuse of discretion or a clear disregard of the applicable law." State, ex rel. Morrison, v. Bd. of Elections (1980), 63 Ohio St.2d 336, 339 [17 O.O.3d 420]. Based on this record, I cannot find that respondent abused its discretion or acted in clear disregard of applicable law so as to justify the issuance of the extraordinary relief sought herein.
In granting this writ today, this court has failed to remain mindful of the limitations on its power to intervene in the election of public officials. The right to vote has its source in and is guaranteed by the Constitutions of Ohio and of the United States. The survival of our system of government requires that proper respect be given to the will of the people as expressed at the ballot box.