By Timothy Kays
On January 21, the Supreme Court of Ohio received a request for a Writ of Mandamus on behalf of Williams County Sheriff Steve Towns to be served on the Williams County Board of Elections to reinstate Towns’ name on the ballot for the March 17, 2020 primary election.
On January 22, the Supreme Court issued a Summons to the Williams County Board of Elections pursuant to Towns’ expedited claim (Supreme Court Case #2020-0111). The Williams County Board of Elections is required by law to file a response on or before the 5th day after service of the summons.
Towns’ attorney, Caroline H. Gentry, of Porter, Wright, Morris & Arthur LLP of Dayton, is seeking an order, judgment, and/or writ from the Court compelling the Williams County Board of Elections to issue a certificate of candidacy to him, and to certify his name for placement upon the upcoming primary election ballot as a Republican candidate for the office of Sheriff. Because of the proximity of the March 17, 2020 primary election, Towns lacks an adequate remedy in the ordinary course of law.
Towns’ legal staff alleges that he filed a timely, valid declaration of candidacy with the Election Board, and a petition containing a sufficient number of valid signatures to be a Republican candidate for the office of Sheriff of Williams County at the March 17, 2020 primary election. The Election Board subsequently certified Towns’ candidacy, and placed him on the March 17, 2020 Republican primary ballot.
The court papers filed note that on November 5, 2019, a jury found Towns guilty of a first-degree misdemeanor charge in the Bryan Municipal Court an alleged violation of Ohio Revised Code (ORC) §102.03(B) that occurred on October 19, 2018. That regulation states, “No present or former public official or employee shall disclose or use, without appropriate authorization, any information acquired by the public official or employee in the course of the public official’s or employee’s official duties that is confidential because of statutory provisions, or that has been clearly designated to the public official or employee as confidential when that confidential designation is warranted because of the status of the proceedings or the circumstances under which the information was received and preserving its confidentiality is necessary to the proper conduct of government business.”
The complaint noted that the same jury acquitted Towns of a first-degree misdemeanor charge in the Bryan Municipal Court for an alleged violation of ORC §103.03(B) that occurred on July 23, 2019. ORC Section 102.06 provides that complaints for violations of ORC Section 102.03 shall be filed with the Ohio Ethics Commission, which has the authority to review the complaint, conduct an investigation, hold a hearing, settle the complaint, and in some instances, refer the matter for prosecution.
Towns was prosecuted in Bryan Municipal Court for two alleged violations of ORC Section 102-03(B), even though no compliant had previously been filed with the Ohio Ethics Commission, and even though the Ohio Ethics Commission had not authorized the prosecution of either charge.
On November 14, 2019, Towns appealed his first-degree misdemeanor conviction to the Sixth District Court of Appeals, and that appeal remains pending. On January 3, 2020, three Republican candidates for the office of Sheriff of Williams County filed protests against Towns’ candidacy the Williams County Board of Elections.
They petitioned for the removal of Towns from the primary ballot under ORC § 311.01(B)(5), the relevant parts of which states, “Except as otherwise provided in this section, no person is eligible to be a candidate for sheriff, and no person shall be elected or appointed to the office of sheriff, unless that person meets all of the following requirements…(5) The person has not been convicted of or pleaded guilty to a felony or any offense involving moral turpitude under the laws of this or any other state or the United States, and has not been convicted of or pleaded guilty to an offense that is a misdemeanor of the first degree under the laws of this state or an offense under the laws of any other state or the United States that carries a penalty that is substantially equivalent to the penalty for a misdemeanor of the first degree under the laws of this state.”
The complaint went on to state that the Ohio Constitution authorizes the General Assembly to disqualify a candidate from holding public office if he or she is convicted of a felony. It does not contain a similar authorization with respect to first-degree misdemeanors.
The Election Board held a hearing on January 13, 2020 at 4:00 p.m. to decide whether to remove Towns’ name from the ballot for the March 17, 2020 election. At the conclusion of that hearing, the Board voted to remove Towns’ name on the ballot. A transcript of the hearing is not yet available, but will be filed promptly after it becomes available.
Towns’ legal staff presented five claims for relief. First, it is claimed that Towns’ conviction is void under the Due Process Clauses of the Ohio and Federal Constitutions because he was not afforded the protections of the mandatory procedures provided by the Ohio Ethics Commission.
Before a person can be criminally prosecuted for violating ORC § 102.03 they claim, a complaint must first be filed with the Ohio Ethics Commission, which will investigate the complaint, hold a hearing, and possibly refer the matter for prosecution. Towns alleges that he was unlawfully prosecuted for alleged violations of ORC § 102.03 without any prior involvement or authorization by the Ohio Ethics Commission.
The second claim is that Towns’ Conviction is void under the Separation of Powers Doctrine, because the Bryan Municipal Court (Judicial Branch) unlawfully usurped the jurisdiction and authority of the Ohio Ethics Commission (Executive Branch).
The third claim states that ORC § 311.01(B)(5) is Unconstitutional to the extent that it disqualifies candidates for sheriff because of first-degree misdemeanor convictions, because the Ohio Constitution does not authorize the General Assembly to impose that sanction. Towns’ attorneys argue that the Ohio Constitution only permits the General Assembly to exercise those powers that have been expressly delegated to it.
The fourth claim brought by Towns’ staff states that ORC § 311.01(B)(3) is Unconstitutional under the Equal Protection Clause of the Ohio Constitution, because there is no rational basis to disqualify sheriffs, but no other types of public officials who are convicted of first-degree misdemeanors. Sheriffs, they argue, are the only Ohio public officials who are disqualified from holding elective office if they are convicted of any type of first-degree misdemeanor.
All other Ohio public officials must be convicted of either a specific first-degree misdemeanor, or a felony to be disqualified from holding elective office. Therefore they state that is no rational basis for drawing this distinction between different types of Ohio public officials.
Finally, Towns claims that he is entitled to a reasonable period of time to remove the disqualification, because he immediately appealed his conviction. Towns immediately appealed his conviction to the Sixth District Court of Appeals. Although his appeal is not expected to be ruled upon before the March 17, 2070 primary elections, it is reasonable to expect a decision before the November 3, 2020 general election. Towns’ attorneys therefore challenge that he should be allowed to maintain his candidacy while he pursues a reversal of his conviction.
With that, Towns’ legal counsel has asked that the Ohio Supreme Court take four actions upon the behalf of Sheriff Towns. First, the issuance of an order, judgment and/or writ, compelling the Williams County Board of Elections to issue a certificate of candidacy to Towns, and to certify his name for placement upon the upcoming March 17, 2020 primary election as a Republican candidate for the office of Sheriff.
Second, to grant a peremptory Writ of Mandamus ordering the relief set forth above after the filing of the Answer to the Complaint. Third, assess the costs of this action against the Williams County Board of Elections, and finally to award such other relief as may seem appropriate by the Court.
Timothy can be reached at tim@thevillagereporter.com