IN THE SUPREME COURT OF OHIO. THE STATE OF OHIO EX REL.. Case No: MARTIN J. TREMMEL Respondent's Brief to Relator,

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1 IN THE SUPREME COURT OF OHIO ^^^(,%hvr'l THE STATE OF OHIO EX REL.. Case No: MARTIN J. TREMMEL Respondent's Brief to Relator, Relator's Original Action In Mandamus and Prohibition -v- ERIE COUNTY BOARD OF ELECTIONS ET AL.,. Expedited Election Matter Under S. Ct. Prac. R. X, 9 Respondents. RESPONDENT'S BRIEF TO RELATOR'S COMPLAINT IN ORIGINAL ACTION FOR WRIT OF MANDAMUS AND/OR WRIT OF PROHIBITION OCT 3 0 2d0g CLERK OF COURT SUPREME COURT OF OHIO Kevin J. Baxter Erie Countygrosecuting Attorney By: Sandy`T. Rubino ( ) Chief Assistant Prosecutor, and Counsel of Record; Trevor M. Hayberger ( ) Civil Division, Assistant Prosecutor Erie County Prosecutor's Office 247 Columbus Avenue, 3`d Floor Sandusky, Ohio Office No. (419) FAX: (419) srubino@eriecounty.oh.gov

2 TABLE OF CONTENTS Statement of Facts... 1 STANDARD OF REVIEW... 3 * * * Authorities Cited in Support of Standard of Review * * * State ex rel Heffelfinger v. Brunner, 116 Ohio St. 3d 172, 2007-Ohio State ex rel. Husted v. Brunner, 2009-Ohio State ex rel. Brown v. Butler Cty. Bd ofelections, 109 Ohio St.3d 63, 846 N.E.2d 8 (Ohio,2006)... 3 Whitman v. Hamilton Cty. Bd of Elections, 97 Ohio St. 3d 216, 2002-Ohio State ex rel City of Chillicothe v. Ross Cty. Bd. Of Elections, 2009-Ohio ARGUMENT: A. Respondent does not have a clear legal duty... 4 * * * Authorities Cited in Support of Argument * * * State ex rel. Husted v. Brunner, 2009-Ohio Ohio Revised Code (C)... 4,5 Ohio Revised Code ,5 Ohio Revised Code Ohio Revised Code Ohio Revised Code Ohio Revised Code B. Relator cannot show a clear legal right to the relief prayed for * * * Authorities Cited in Support of Argument * * * i

3 Ohio Revised Code ,7,8 Bell v. Marinko, 367 F. 3d 588 (6t" Cir. 2004)... 8 State ex rel. Husted Y. Brunner, 2009-Ohio ii

4 TABLE OF AUTHORITIES CASES: Bell v. Marinko, 367 F. 3d 588 (6" Cir. 2004)... 8 State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 846 N.E.2d 8 (Ohio,2006)... 3 State ex rel. City of Chillicothe v. Ross Cty. Bd. Of Elections, 2009-Ohio State ex reg Heffelfinger v. Brunner, 116 Ohio St. 3d 172, 2007-Ohio State ex rel. Husted v. Brunner, 2009-Ohio ,4,9 Whitman v. Hamilton Cty. Bd ofelections, 97 Ohio St. 3d 216, 2002-Ohio STATUTES Ohio Revised Code Ohio Revised Code ,6,7,8 Ohio Revised Code Ohio Revised Code ,5 Ohio Revised Code (C)... 4,5 Ohio Revised Code iii

5 I. Statement of Facts On October 22, 2009, a hearing was conducted by the Erie County Board of Elections (hereinafter "BOE") to determine the residency qualifications of appellant as to Kelleys Island, Erie County, Ohio. Appellant has had previous issues before the BOE in 2002 and 2003 regarding voting qualifications as to Kelleys Island. (TR. 3, 4) At the hearing Christopher Marinko (hereinafter "Marinko"), a board member, inquired of appellant as to his residence. Appellant responded that he had lived on Kelleys Island for ten years. Appellant indicated that prior to living on Kelleys Island, he had a residence in Milan, Ohio, and Huron, Ohio, which had been sold. Appellant and his wife presently have a residence in the Columbus, Ohio, area. (TR. 6-7) However, appellant's wife considers Columbus, Franklin County, her place of residence as she is employed by the Worthington School System and is registered to vote in Franklin County. Moreover, when appellant's son is not attending school in Florida, his son considers Columbus his place of residence. (TR. 29) Appellant indicated that he registered to vote on Kelleys Island around 1999 maybe 2000 because appellant was making the Kelleys Island residence his permanent residence. This registration was denied and appellant now seeks to demonstrate that the residence on Kelleys Island is his permanent residece. When asked what factors appellant considered in making the residence his permanent residence, appellant responded that he and his wife were raised in the Sandusky area. Appellant had connections with Kelleys Island through the 4H program. When appellant got married, he and his wife spent time on the Island, his family members even farmed on the Island and appellant had purchased property for seasonal rentals. In contrast though, upon payment by the renters for the rental property, the payments go to appellant's wife in Columbus, 1

6 Ohio. Appellant looked forward to retiring on Kelleys Island, but is not active in community activities. (TR. 7-10, 27) When questioned about receiving and paying accrued bills and taxes, appellant would not directly respond to the questions. However, appellant did finally indicate that his Erie County tax bill for his property on Kelleys Island was mailed to his Columbus, Ohio, residence (TR ) When asked who lives at the residence on Kelleys Island, appellant stated that he did and sometimes his wife. On the other hand, appellant could not provide any names of individuals outside of his family who could verify that appellant lives on Kelleys Island. (TR ) Appellant further stated that he spends two thirds of his nights at his residence in Columbus but only about one-third of the nights at the Kelleys Island address. By his own testimony, appellant stated that he spends the week-ends at the Island during the summer, but during the autumn and winter months, he spends less time on the Island. (TR ) Appellant's employment demands that he spend more time in Columbus, Ohio, where he maintains an office as Assistant Director with the State Public Health Department. Appellant works in this office on daily basis except when he is traveling and lives at the Columbus residence during this time. (TR. 21, 24-26) Appellant did provide a driver's license, a tax return and credit union statement all demonstrating the Kelleys Island address. (TR ) Other documents provided demonstrate that appellant and his wife have a limited liability corporation, "Sandy Cove" and J-I-J-O Limited Partnership, on the Island. Even though bills are listed in "Sandy Cove" or J-I-J-O, the bills are sent to the Columbus residence. (TR ) Appellant, when asked, indicated that he uses the Kelleys Island address on his state income tax return. 2

7 When appellant received his appointment to his State position by Governor Strickland, an article appeared in the Journal Tribune our of Marysville, Ohio. (TR. 37) The article represents that appellant is a Worthington resident, married, and father of two. (TR. 39) By vote, the Erie County Board of Elections determined that appellant did not demonstrate a change to allow appellant to be considered a resident of Kelleys Island entitling appellant to voting rights. U. Standard of Review In order to prevail in an original action in mandamus, Relator "must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of the [Board] to provide it, and the lack of an adequate legal remedy in the ordinary course of law. State ex rel. Heffelfinger v. Brunner, 116 Ohio St. 3d 172, 2007-Ohio-5838; State ex rel. Husted v. Brunner, 2009-Ohio In an action seeking a writ of prohibition, "relator must establish that (1) respondent is about to exercise quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. "State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 846 N.E.2d 8 (Ohio,2006). The standard in extraordinary actions challenging actions of boards of elections is "whether they engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions". Whitman v. Hamilton Cty. Bd of Elections, 97 Ohio St. 3d 216, 2002-Ohio-5923; Husted II, supra; State eac rel. City of Chillicothe v. Ross Cty. Bd. Of Elections, 2009-Ohio

8 III. Law and Ar ument A. Respondent does not have a clear legal duty. The Relator relies on this Court's analysis in Husted II, in his complaint to essentially argue that the only way his registration can be cancelled is pursuant to R.C (C). Respondents respectfully submit that unlike the Relator in Husted II, Respondents did not "cancel" his registration. Rather, they never approved it. The Relator in Husted II was clearly a registered voter prior to the actions taken by the board of elections and Secretary of State to cancel his registration. In this case, Relator filed a standard voter registration form, which is essentially treated as an application to vote under R.C He was not on the rolls as a registered voter at the time of Respondents' actions in this case. He had, at one time in 2002, been registered, and after subsequent challenges by Respondent Board in 2002 and 2003, his registration was either cancelled or denied and no legal actions were instituted to reverse the Respondent Board on those occasions. This Court acknowledged in Husted II that: " R.C (C)(2) also does not apply, because it relates to a voter's initial registration, which is not in issue here". An examination of R.C (C) (1) is instructive and controlling in this matter. R.C (C)(1) states in relevant part: "A board of elections that receives a voter registration application and is satisfied as to the truth of the statements made in the registration form shall register the applicant not later than twenty business days after receiving the application..." (Emphasis added) By virtue of this statute, there is no clear legal duty to acce t the registration of a person when a board of elections is not satisfied as to the truth of the statements made in the registration form, especially as to residency. Relator asserts at paragraph 65 of his complaint that R.C provides for an investigation and possible cancellation of a registration only if required 4

9 notification has been transmitted to the elector via non-forwardable mail and returned, and that since Relator was never sent such a notice, this section is inapplicable. Respondents submit that the clear intent of R.C (C)(1) and (C)(2) is that such notice is only sent once a board of elections is satisfied as to the truth of the statements made in the registration form. Indeed, if a board of elections is satisfied, it then has a duty to register the applicant within twenty days. The subsequent notice is a form of address check on what a board considers an otherwise valid registration form. It is not intended to incapsulate a residency analysis under R.C This is supported further by R.C (C) (3) which states: "If a notice of the disposition of an otherwise valid registration application is sent..." A condition precedent to registration within twenty days is that the board is satisfied that the statements in the registration fonn are true. If a board is not initially satisfied, as was the case here, due to the prior history of Relator's residency issues before the Respondent Board, it has a right and corresponding duty under R.C (Q) to investigate the registration apart from an "investigation" as to whether an applicant's address is correct as found in R.C Otherwise, the General Assembly's inclusion of R.C (Q) and the condition of a board of elections being satisfied as to the truthfulness of a registration form in R.C (C)(1) would be rendered meaningless, and boards of elections would have to accept every registration subject to a subsequent challenge under R.C and/or R.C R.C sets forth how a person is "qualified" to vote: "Each person who will be of the age of eighteen years or more at the next ensuing November election, who is a citizen of the United States, and who, if he continues to reside in the precinct until the next election, will at that time have fulfilled all the requirements as to length of residence to qualify him as an elector shall, unless otherwise disqualified, be entitled to be registered as an elector in such precinct. When once 5

10 registered, an elector shall not be required to register again unless his registration is canceled." A person who submits a registration form is not automatically qualified under this statute. He or she has to fulfill all of the requirements as to length of residence to qualify. In this case, Relator did not qualify because he is not a resident of Kelly's Island. B. Relator cannot show a clear legal right to the relief prayed for. Kelly's Island sits off of the shoreline of Erie County in Lake Erie. It is a well known vacation and tourist destination. Many people own what are essentially vacation homes on the Island and stay there during warmer months. Owning a home on the Island does not ipso facto result in the automatic establishment of residency as contemplated in R.C , thereby entitling a person to vote. The subjective hope of one day making a vacation home one's fixed habitation or the place when absent one intends to return can easily be manipulated by using the address of a vacation home on tax returns, driver's licenses, utility and other bills, which are easily forwarded to what is the true residence of a person. Relator, as his own testimony reflects, has had a long history attempting to vote from Kelly's Island. Except for perhaps one occasion in 2002 where he indicated he had sold his home in Huron, Ohio, his registration was turned down because he was not able to establish to the satisfaction of the Board of Elections that his fixed habitation is Kelly's Island and that is where he intends to return when absent. He testified he has bills forwarded to his Franklin County residence, that his wife lives and works in Franklin County as an administrator for the Worthington schools and indeed she is registered to vote in Franklin County. He testified that he lives and works in Franklin County. He is an assistant director with the State Health Department. 6

11 He testified that he and his wife were not separated in the last ten years. He held a health commissioner job in Union County apparently until appointed to the State job. He testified "likely not" when asked if his children had ever resided at 117 Hamilton Road., the site of the Kelly's Island home. When asked whether he could name anyone on Kelly's Island who could support his position as to his claimed residency and he was evasive. He testified that he sleeps on Kelly's island one-third of the nights and that two-thirds of the time he has lived in Columbus. The residency tests in Ohio are articulated R.C , which states: All registrars and judges of elections, in determining the residence of a person offering to register or vote, shall be govetned by the following rules: (A) That place shall be considered the residence of a person in which the person's habitation is fixed and to which, whenever the person is absent, the person has the intention of returning. (B) A person shall not be considered to have lost the person's residence who leaves the person's home and goes into another state or county of this state, for temporary purposes only, with the intention of returning. (C) A person shall not be considered to have gained a residence in any county of this state into which the person comes for temporary purposes only, without the intention of making such county the permanent place of abode. (D) The place where the family of a married person resides shall be considered to be the person's place of residence; except that when the spouses have separated and live apart, the place where such a spouse resides the length of time required to entitle a person to vote shall be considered to be the spouse's place of residence. (E) If a person removes to another state with the intention of making such state the person's residence, the person shall be considered to have lost the person's residence in this state. (F) Except as otherwise provided in division (G) of this section, if a person removes from this state and continuously resides outside this state for a period of four years or more, the person shall be considered to have lost the person's residence in this state, notwithstanding the fact that the person may entertain an intention to return at some future period. (G) If a person removes from this state to engage in the services of the United States government, the person shall not be considered to have lost the person's residence in this 7

12 state during the period of such service, and likewise should the person enter the employment of the state, the place where such person resided at the time of the person's removal shall be considered to be the person's place of residence. (H) If a person goes into another state and while there exercises the right of a citizen by voting, the person shall be considered to have lost the person's residence in this state. (I) If a person does not have a fixed place of habitation, but has a shelter or other location at which the person has been a consistent or regular inhabitant and to which the person has the intention of returning, that shelter or other location shall be deemed the person's residence for the purpose of registering to vote. As stated above, based on Relator's testimony, the Respondents clearly did not believe that the Kelley Island home was Relator's fixed habitation that whenever absent he intended to return under R.C (A). One board member specifically noted that he did not rely on R.C (D). The weight and credibility of the entire testimony, the questions asked and the history the Board had with Relator suggests that Respondents took a comprehensive approach to the statute and did not rely on R.C (D), although it is implausible that a person who is not separated from a spouse who works, lives and votes in Franklin County would have an intent of returning anywhere but where his spouse actually resides. By viewing this as one factor and not a sole factor there is no evidence to suggest that Respondents created an irrebuttable presumption under the statute. Respondents clearly complied with Bell v. Marinko, 367 F. 3d 588 (6`h Cir. 2004). Under R.C (B) and (C), there was no credible evidence that Relator was living in Columbus temporarily. Relator already lived in Columbus at the time of his state appointment, therefore, R.C (G) does not apply. The Board of Elections had previously determined that Kelly's Island was not his residence for voting purposes. Here, there was not only a preponderance of probative and reliable evidence upon which the Respondents could base their decision, but also clear and convincing evidence to support the Respondent's decision. However, 8

13 Respondents' do not concede that the standard of clear and convincing evidence employed by this Court in Husted II as being applicable herein. As this Court noted in that case, the standard suggested by the Secretary of State was seemingly limited to that case. IV. Conclusion Respondents respectfully submit that they have not abused their discretion as alleged by Relator and request that his Complaint be dismissed with prejudice. Respectfully submitted, S)lfidy J. Rubino ( ) hief Assistant Prosecutor Civil Division 9

14 CERTIFICATION OF MAILING This is to certify that a copy of the forgoing Brief was sent by regular United States mail to Mark A. McGinnis, Counsel for Relator, at McTigue & McGinnis LLC 550 East Walnut Street Columbus, Ohio 43215, and by to mmc innis cr^electionlawgroup.com, by the undersigned, this 90 day of October, S ndy J. Rubino ( ) Chief Assistant Prosecutor Civil Division 10