text:
    The STATE EX REL. OLIVER v. TURNER, Warden; Eppinger, Warden.
    No. 2018-0132
    Supreme Court of Ohio.
    Submitted May 22, 2018 Decided June 1, 2018
    Tyrone Oliver, pro se.
    Michael DeWine, Attorney General, and Stephanie Watson, Assistant Attorney General, for respondent Turner.
   Per Curiam.

{¶ 1} Tyrone Oliver filed a petition seeking a writ of habeas corpus against Neil Turner, Warden of the North Central Correctional Complex, at which Oliver was an inmate. After filing this petition, Oliver was transferred to the Grafton Reintegration Center and the custody of Warden LaShann Eppinger. We sua sponte join Eppinger as a respondent in this case. See Jurek v. McFaul , 39 Ohio St.3d 42, 528 N.E.2d 1260 (1988). Because Oliver has completed his maximum sentence, we hereby issue a writ of habeas corpus to Warden Eppinger commanding Oliver's immediate release from incarceration.

BACKGROUND

{¶ 2} At a hearing on May 27, 1993, Oliver was sentenced to an indeterminate prison sentence of 8 to 25 years for involuntary manslaughter. State v. Oliver , Lucas C.P. No. CR93-5932A (June 3, 1993). After accounting for jail-time credit, the Bureau of Sentence Computation ("BSC") calculated his maximum-sentence release date as January 9, 2018.

{¶ 3} Oliver received parole release in July 2003. In February 2005, he pleaded guilty to a charge of domestic violence and was sentenced to a prison term of two years. State v. Oliver , Fulton C.P. No. 04CR45 (Feb. 22, 2005).

{¶ 4} On January 26, 2018, Oliver filed the present petition for a writ of habeas corpus. Oliver alleges that his 2005 sentence for domestic violence was to be served concurrently with, not consecutively to, his 1993 sentence for involuntary manslaughter and that he is therefore entitled to immediate release.

{¶ 5} Because the petition states a facially valid claim, we ordered Turner to file a return of the writ, 152 Ohio St.3d 1403, 2018-Ohio-723, 92 N.E.3d 876. Turner complied on March 15, 2018, and Oliver filed a response on March 23.

LEGAL ANALYSIS

{¶ 6} Prior to 1996, R.C. 2929.41 provided:

(B) A sentence of imprisonment shall be served consecutively to any other sentence of imprisonment, in the following cases:
* * *
(3) When it is imposed for a new felony committed by a probationer, parolee, or escapee.

Am.Sub.H.B. No. 571, 145 Ohio Laws, Part IV, 6342, 6396. Thus, under former R.C. 2929.41, it was mandatory that a sentence for a new felony committed while an offender was on parole run consecutively to the sentence for any other offense.

{¶ 7} However, the law changed with the 1995 passage of Am.Sub.S.B. No. 2, which deleted R.C. 2929.41(B)(3) effective July 1, 1996. 146 Ohio Laws, Part IV, 7136, 7502. Under the new law, all sentences of imprisonment "shall be served concurrently." R.C. 2929.41(A). A sentencing judge may still impose consecutive sentences if he or she makes certain findings, including a finding that consecutive sentences are necessary to protect the public or to punish the offender. R.C. 2929.14(C)(4) ; State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The fact that a defendant was on probation or parole for a prior offense is now simply one factor that a court may cite as grounds for imposing consecutive sentences, R.C. 2929.14(C)(4)(a), not a circumstance that requires consecutive sentences.

{¶ 8} Oliver's 2005 sentencing entry states:

It is hereby ORDERED that defendant serve a term of two (2) years at the Ohio Department of Rehabilitation and Correction, Orient, Ohio, for the offense of Domestic Violence, a violation of R.C. 2919.25(A) and (D)(4), a felony of the third degree.

(Capitalization sic.) State v. Oliver , Fulton C.P. No. 04CR45, at 2. The sentencing entry does not explicitly order the new sentence to run consecutively to the sentence for the 1993 involuntary-manslaughter conviction. Therefore, under the law in effect in 2005, the sentences are presumptively concurrent.

{¶ 9} In opposing this conclusion, Warden Turner points to an earlier portion of Oliver's 2005 sentencing entry, in which the trial judge described his plea colloquy with Oliver:

The Court further advised the defendant and the defendant said he understood that the Court could sentence him immediately and that if the offense to which he offered to plead was committed while he was on probation or parole, that the sentence for this offense must be consecutive with any possible sentence for violation of his probation or parole.

Id. Turner cites this statement as evidence that the trial judge imposed consecutive sentences:

Contrary to Oliver's understanding, the sentencing entry establishes that these sentences were to be served consecutively. This is so because the Fulton County conviction for domestic violence was committed while Oliver was on parole from his 1993 Lucas County conviction.

{¶ 10} But the sentencing entry does not indicate that the judge wanted to impose consecutive sentences or that he had concluded that consecutive sentences were warranted. Rather, the phrase "consecutive with any possible sentence for violation of his probation or parole" appears in the judge's explanation in the sentencing entry that he had advised Oliver that consecutive sentences were mandatory because Oliver's offense had been committed while he was on parole, a statement that was not legally correct. Because the sentencing entry does not purport to impose a consecutive sentence, the sentence ran concurrently with Oliver's earlier sentence by operation of R.C. 2929.41(A). Therefore, Oliver should have been released, at the latest, in January 2018.

{¶ 11} Alternatively, Turner contends that irrespective of whether Oliver's claim has merit, it is barred by res judicata. In support of this contention, Turner presents two legal arguments.

{¶ 12} First, he suggests that a writ of habeas corpus cannot issue, because Oliver had an adequate remedy to challenge his sentences by way of direct appeal. Turner correctly notes that " '[w]e have consistently held that sentencing errors are not jurisdictional and are not cognizable in habeas corpus.' " State ex rel. Shackleford v. Moore , 116 Ohio St.3d 310, 2007-Ohio-6462, 878 N.E.2d 1035, ¶ 5, quoting Majoros v. Collins , 64 Ohio St.3d 442, 443, 596 N.E.2d 1038 (1992). But Oliver is not challenging an error in the 2005 sentencing entry; his claim is that the BSC misunderstood the legal effect of the sentencing entry when it added two years to his maximum-sentence release date, a claim he could not have asserted in his direct appeal, because it had not yet arisen.

{¶ 13} Alternatively, Turner argues that res judicata applies because Oliver unsuccessfully asserted the same claim in prior proceedings. On August 23, 2016, Oliver filed a complaint in Franklin County Common Pleas Court against the Ohio Department of Rehabilitation and Correction and the BSC, seeking a declaratory judgment that his 2005 domestic-violence sentence was to be served concurrently to his earlier sentence. State ex rel. Oliver v. Mohr , Franklin C.P. No. 16CV007923. Six days later, he filed a second copy of the same complaint, which the Franklin County clerk assigned a separate case number. State ex rel. Oliver v. Mohr , Franklin C.P. No. 16CV008161.

{¶ 14} The two cases were consolidated, and on December 12, 2016, the trial judge denied the defendants' motion for judgment on the pleadings but then sua sponte dismissed the complaints as barred by res judicata on the basis that the issue should have been raised on direct appeal. Oliver appealed. But on September 5, 2017, the court of appeals dismissed the appeal due to Oliver's failure to file a merit brief. State ex rel. Oliver v. Mohr , 10th Dist. Franklin No. 17AP-515 (Sept. 5, 2017).

{¶ 15} The doctrine of res judicata provides that a final judgment rendered on the merits by a court of competent jurisdiction is a complete bar to any subsequent action on the same claim between the same parties or those in privity with them. State ex rel. Jackson v. Ambrose , 151 Ohio St.3d 536, 2017-Ohio-8784, 90 N.E.3d 922, ¶ 13. We hold that the judgments in Oliver's prior declaratory-judgment actions do not operate as res judicata because they were not issued by a court of competent jurisdiction.

{¶ 16} R.C. 2721.03 provides that

any person interested under a * * * writing constituting a contract or any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule * * *, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.

Oliver's complaints in the common pleas court did not fall within the scope of the Declaratory Judgment Act, R.C. 2721.01 et seq. He was not seeking a declaration of his rights under the sentencing statute, because those rights were clear: his sentence was to run concurrently with his prior sentence absent imposition by the court of a consecutive sentence along with the requisite findings. What he was seeking was a declaration of the meaning of the court's sentencing entry, but the statute does not provide for a declaration of rights under a sentencing entry. We therefore hold that res judicata does not bar this petition.

{¶ 17} We hold that Oliver has served his maximum sentence and is entitled to immediate release.

Writ granted.

O'Connor, C.J., and French, DeWine, and DeGenaro, JJ., concur.

O'Donnell, J., concurs in judgment only.

Kennedy, J., concurs in judgment only, with an opinion joined by Fischer, J.

{¶ 18} Because the facts of this case demonstrate that petitioner, Tyrone Oliver, has served his sentences in full, I agree with the majority that he is entitled to a writ of habeas corpus ordering his immediate release from prison. We have explained:

Res judicata is a rule of fundamental and substantial justice, see State v. Szefcyk (1996), 77 Ohio St.3d 93, 95, 671 N.E.2d 233, citing Federated Dept. Stores, Inc. v. Moitie (1981), 452 U.S. 394, 401, 101 S.Ct. 2424, 69 L.Ed.2d 103, that " 'is to be applied in particular situations as fairness and justice require, and that * * * is not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice.' "

(Ellipsis sic.) State v. Simpkins , 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 25, superseded on other grounds by statute as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, quoting Grava v. Parkman Twp. , 73 Ohio St.3d 379, 386-387, 653 N.E.2d 226 (1995) (Douglas, J., dissenting), quoting 46 American Jurisprudence 2d, Judgments, Section 522, at 786-787 (1994).

{¶ 19} The sentencing entry does not impose a consecutive sentence, and that sentence ran concurrently with Oliver's previously imposed sentence pursuant to R.C. 2929.41(A). He has now served those sentences and is entitled to immediate release. Because it would be an injustice to permit Oliver to remain incarcerated when he has fully served his sentence, res judicata does not bar relief.

{¶ 20} For this reason, it is unnecessary to decide whether the Franklin County Court of Common Pleas lacked jurisdiction to hear Oliver's declaratory-judgment action. That issue has not been raised or briefed by the parties, and as we observed in Sizemore v. Smith, "justice is far better served when it has the benefit of briefing, arguing, and lower court consideration before making a final determination," 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2. Moreover, it is not clear to me that the common pleas court lacked jurisdiction; actions for a declaratory judgment are within the subject-matter jurisdiction of a court of common pleas pursuant to the Declaratory Judgment Act, R.C. 2721.01 et seq., and "[a] court's subject-matter jurisdiction is determined without regard to the rights of the individual parties involved in a particular case,"

Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19. Further, as the majority's analysis in this case reveals, review and application of R.C. 2929.41(A) is required to determine whether the sentencing entry in fact imposed consecutive or concurrent sentences. This is true regardless of how well Oliver pleaded his cause of action.

{¶ 21} Accordingly, I concur in judgment only.

Fischer, J., concurs in the foregoing opinion.

      The complaint that Oliver filed in the Franklin County Court of Common Pleas on August 23, 2016, is available at https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/imageLinkProcessor.pdf?coords=bOh8SnaZZ5yAbboUKSMKNA7JXsq9% 2FCOtxvk1ocW% 2B0Y1Al2c6EgQfCAdt0IlcsMQAkvCKQ03fufyXi% 2F% 2BDmC% 2FALayK4I9CrlnI% 2FHZMFXIlkBoIs6cc0 % 2F% 2FwdFTb% 2Fg652NDXPeGKppHiQdptKRro7Rsz% 2Fh44TLyFUDZg1vKI1AS8tOs% 3D.

      The complaint that Oliver filed in the Franklin County Court of Common Pleas on August 29, 2016, is available at https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/imageLinkProcessor.pdf?coords=rzyioti1XS7I% 2BkpGANQW2QZwdshfx3HkQUNN0KqEN1oICGCwX7GtXRMy9tm1yr6YQ2tiRxQZ9ff0fmw1mL% 2BTujpFhjMgAri% 2BMjkdiC2bn3BtOUIHDsmZ1 Vnz5KtSSgqDhCg2Yi7FpwjqP07IrVJenlhKmRbTFOQ5Fumar3IxW2A% 3D.


source: Caselaw Access Project

author: Kennedy, J.

license: Public Domain

text:
    PELLETIER, Appellee, v. The City of CAMPBELL, Appellant, et al.
    No. 2017-0088
    Supreme Court of Ohio.
    Submitted February 14, 2018 Decided June 5, 2018
    Rossi & Rossi and Gregg A. Rossi, Youngstown, for appellee.
    Baker, Dublikar, Beck, Wiley & Mathews, Gregory A. Beck, James F. Mathews, and Tonya J. Rogers, North Canton, for appellant.
    Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for amicus curiae Ohio Association for Justice.
    Brosius, Johnson & Griggs, L.L.C., Peter N. Griggs, Donald F. Brosius, Columbus, and Jennifer L. Huber, urging reversal for amici curiae Ohio Township Association and Coalition of Large Ohio Urban Townships.
    Collins, Roche, Utley & Garner, L.L.C., and Kurt D. Anderson, Cleveland, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.
    Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, Andrew N. Yosowitz, and Shawn K. Judge, Columbus, urging reversal for amici curiae County Commissioners Association of Ohio, Ohio Municipal League, and County Engineers Association of Ohio.
    Joseph Martuccio, Canton Law Director, and Kevin R. L'Hommedieu, Chief Counsel, urging reversal for amicus curiae city of Canton.
    Andrea Scassa, Massillon Law Director, urging reversal for amicus curiae city of Massillon.
    Jennifer L. Arnold, Alliance Law Director, urging reversal for amicus curiae city of Alliance.
   Kennedy, J.

{¶ 1} This discretionary appeal from the Seventh District Court of Appeals presents the question whether the Political Subdivision Tort Liability Act, R.C. Chapter 2744, grants immunity to appellant, the city of Campbell, in a personal-injury action seeking recovery based on the city's failure to remove foliage that was growing 34 feet in front of a stop sign. The appellate court affirmed the trial court's denial of the city's motion for summary judgment on the claims of appellee, Judith Pelletier. It held that there are genuine issues of material fact regarding whether R.C. 2744.02(B)(3), which provides that a political subdivision may be held liable for the negligent failure to keep public roads in repair and the negligent failure to remove obstructions from them, applies as an exception to the city's immunity from suit.

{¶ 2} Because the language of R.C. 2744.02(B)(3) is plain and unambiguous, it must be applied, not interpreted. Sears v. Weimer , 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph five of the syllabus. It is not disputed that the stop sign at issue in this case was mandated and therefore part of the public road. However, the stop sign was in repair, and because there was no foliage to remove from the stop sign, the sign was not obstructed.

{¶ 3} Accordingly, the city is entitled to judgment as a matter of law, and we reverse the judgment of the court of appeals and remand the matter to the trial court to dismiss the claims against the city.

Facts and Procedural History

{¶ 4} On August 26, 2013, Pelletier was driving down Sanderson Avenue in Campbell, Ohio, to attend an orientation related to her employment as a high-school nurse, when she came to the intersection with 12th Street. Traffic on Sanderson Avenue is controlled by a stop sign, while traffic on 12th Street has the right-of-way and no stop sign. According to Pelletier, she did not see the stop sign because trees or large bushes in the "devil strip"-what the parties call the grassy area between Sanderson Avenue and the sidewalk-blocked it from her view. Although she saw the intersection, she did not slow down, brake, or look for other vehicles on 12th Street before proceeding through it. As a result of her failure to yield the right-of-way, she collided with another vehicle entering the intersection on 12th Street.

{¶ 5} In March 2014, Pelletier brought this personal-injury action against the city, Danny Saulsberry (the owner of the land on which the foliage grew), the Bank of New York Mellon (which had initiated foreclosure proceedings on Saulsberry's property), and Safeguard Properties, L.L.C. (which had previously contracted to maintain the property for the bank), alleging that their failure to maintain the devil strip to ensure that the stop sign was visible to approaching traffic caused her injuries. The bank and Safeguard filed cross-claims against the city, seeking indemnification and contribution. Pelletier later settled her claims against Safeguard.

{¶ 6} The city moved for summary judgment against Pelletier and the bank, asserting that it is immune from liability pursuant to R.C. Chapter 2744, because the city had no duty to maintain the stop sign, the stop sign was not obstructed, and the city lacked notice of the overgrown foliage. The city supported its motion with the affidavit of Gary Bednarik, the city's park-and-street superintendent, who averred that the stop sign was 34 feet, two inches from the foliage in the devil strip.

{¶ 7} The trial court denied the city's motion for summary judgment, and the court of appeals affirmed, holding that the city could be liable for negligently failing to keep public roads in repair "[w]here, as here, a mandated traffic control device (which is considered to be, by definition, a public road) no longer serves its purpose because of some extraneous factor," such as foliage blocking it. 2016-Ohio-8097, 75 N.E.3d 779, ¶ 22 (7th Dist.). It also concluded that "[w]hether or not the failure to remove the foliage here was an obstruction which [the city] was obligated to remove presents a question of material fact for the trier of fact to resolve." Id. at ¶ 18.

{¶ 8} The city appealed to this court, presenting two propositions of law:

Because an "obstruction" for purposes of determining the immunity of a political subdivision in all claims which allege a negligent failure to maintain a "public road" is confined to a condition which blocks or clogs the roadway, roadside foliage which does not block or clog travel or render a traffic control device indiscernible does not qualify as an obstruction.
"Failure to keep public roads in repair" pursuant to the immunity exception set forth in R.C. 2744.02(B)(3), requires that the actual public road be in a deteriorated, damaged or disassembled state from that existing at construction, placement, or reconstruction.

Positions of the Parties

{¶ 9} On appeal to this court, the city maintains that the appellate court erred in deciding that a political subdivision can be held liable for failing to keep a stop sign "in repair" based on "extraneous circumstances entirely unrelated to the actual condition" of the sign. It points to our decision in Heckert v. Patrick for the proposition that a road is "in proper repair" when it is not deteriorated or disassembled. See 15 Ohio St.3d 402, 406, 473 N.E.2d 1204 (1984). The city contends that liability should not be imposed for the failure to trim or remove tree limbs that do not affect the condition of the roadway itself-and here, it maintains, there is no evidence that the stop sign was deteriorated, disassembled, or in any way damaged. It further argues that the foliage was not an "obstruction" as defined by this court in Howard v. Miami Twp. Fire Div. , i.e., "an obstacle that blocks or clogs the roadway and not merely a thing or condition that hinders or impedes the use of the roadway or that may have the potential to do so," 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, ¶ 30. Here, the foliage did not completely block the stop sign or make it indiscernible. The city asserts that the General Assembly amended R.C. 2744.02(B)(3) in 2003 to clarify that political subdivisions are not liable for conditions that merely hinder or impede the use of the public road, and it argues that "[f]oliage or other extraneous conditions-not located on the traveled portion of the roadway-that merely impose a potential visual hindrance, but do not literally render the road sign entirely indiscernible, are not obstructions within the meaning of the statute."

{¶ 10} Pelletier responds that the duty to keep public roads in repair requires a political subdivision "to maintain the proper operation and functioning" of traffic-control signals that fall within the definition of "public roads." She maintains that the stop sign on Sanderson Avenue was indiscernible and that therefore it was not functioning as designed and cannot be considered "in repair." For this reason, she contends, the city had a statutory duty to trim or remove limbs that were causing the stop sign to be "rendered wholly ineffective or even significantly ineffective." She argues that this court's decision in Heckert is distinguishable, because that case was decided prior to the enactment of R.C. 2744.02(B)(3) and did not concern a mandated traffic-control device on a public road. Pelletier also asserts that when foliage "constitutes an obstruction to visibility of the traffic control device," rendering it "ineffective or useless," the city can be held liable based on the exception to immunity for the negligent failure to remove obstructions from public roads. She asserts that the foliage at issue here not only blocked part of Sanderson Avenue but also completely blocked the stop sign and therefore satisfies the definition of "obstruction" articulated in Howard .

{¶ 11} Accordingly, we are asked to decide whether the failure to remove foliage growing in the devil strip 34 feet, two inches from a stop sign constitutes either a failure to keep a public road in repair or a failure to remove an obstruction from a public road.

Law and Analysis

Standard of Review

{¶ 12} Whether a party is entitled to immunity is a question of law properly determined by the court prior to trial pursuant to a motion for summary judgment. Conley v. Shearer , 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992) ; see also Riscatti v. Prime Properties Ltd. Partnership , 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 17 (noting the importance of deciding a political subdivision's entitlement to immunity before trial).

{¶ 13} The review of a summary judgment denying political-subdivision immunity is de novo and is governed by the summary-judgment standard set forth in Civ.R. 56. Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. As we explained in M.H. v. Cuyahoga Falls ,

Summary judgment may be granted when "(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party."

(Brackets sic.) 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12, quoting Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

Statutory Construction

{¶ 14} This case presents a straightforward question of statutory interpretation. Our duty in construing a statute is to determine and give effect to the intent of the General Assembly as expressed in the language it enacted. Griffith v. Aultman Hosp. , 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18 ; Fisher v. Hasenjager , 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20. R.C. 1.42 guides our analysis, providing that "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage." Further, as we explained in Symmes Twp. Bd. of Trustees v. Smyth , "[w]hen the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need for this court to apply the rules of statutory interpretation." 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). Rather, "[a]n unambiguous statute is to be applied, not interpreted." Sears , 143 Ohio St. 312, 55 N.E.2d 413, at paragraph five of the syllabus.

Political-Subdivision Immunity

{¶ 15} Determining whether a political subdivision is immune from tort liability pursuant to R.C. Chapter 2744 involves a familiar, three-tiered analysis:

"The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. * * * However, that immunity is not absolute. R.C. 2744.02(B) ; Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610.
"The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability. Id. at 28, 697 N.E.2d 610. At this tier, the court may also need to determine whether specific defenses to liability for negligent operation of a motor vehicle listed in R.C. 2744.02(B)(1)(a) through (c) apply.
"If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no defense in that section protects the political subdivision from liability, then the third tier of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability."

(Ellipsis sic.) Riffle v. Physicians & Surgeons Ambulance Serv., Inc ., 135 Ohio St.3d 357, 2013-Ohio-989, 986 N.E.2d 983, ¶ 15, quoting Colbert v. Cleveland , 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9.

Regulation, Maintenance, and Repair of Public Roads

{¶ 16} Our focus is on the second tier of the analysis, because it is not disputed that regulating, maintaining, and repairing Sanderson Avenue, including its traffic signs, is a governmental function. See R.C. 2744.01(C)(2)(e) and (j).

{¶ 17} R.C. 2744.02(B)(3) establishes an exception to political-subdivision immunity: "[P]olitical subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads * * *." Relevant here, R.C. 2744.01(H) defines "public roads" to mean "public roads, highways, streets, avenues, alleys, and bridges within a political subdivision. 'Public roads' does not include berms, shoulders, rights-of-way, or traffic control devices unless the traffic control devices are mandated by the Ohio manual of uniform traffic control devices."

{¶ 18} The parties do not dispute that the Ohio Manual of Uniform Traffic Control Devices required a stop sign on Sanderson Avenue at 12th Street and that the stop sign at issue here is therefore part of the public road.

Keeping Public Roads "in Repair"

{¶ 19} Pursuant to R.C. 2744.02(B)(3), the city may be held liable for injuries caused by its negligent failure to keep public roads "in repair." The statute does not define the phrase "in repair," and we construe it according to its common usage. R.C. 1.42. In this context, the word "repair" means "the state of being in good or sound condition." Webster's Third New International Dictionary 1923 (2002). See also Sanderbeck v. Medina Cty ., 130 Ohio St.3d 175, 2011-Ohio-4676, 956 N.E.2d 832, ¶ 14 (O'Donnell, J., dissenting) ("The plain meaning of the word 'repair' is 'to put back in good condition after damage [or] decay.' Webster's New World College Dictionary (4th Ed.2000) 1214"). And construing a statute imposing a duty on county commissioners to keep roads and bridges "in proper repair" in Heckert , we explained that this language created "a duty on the commissioners only in matters concerning either the deterioration or disassembly of county roads and bridges." 15 Ohio St.3d at 406, 473 N.E.2d 1204. The court noted that the duty to keep roads in repair did not extend to "matters unrelated to actual roadway conditions," such as tree limbs overhanging a county road. Id. at 407, 473 N.E.2d 1204.

{¶ 20} Accordingly, whether a stop sign is in repair depends on its physical condition, and nothing in R.C. 2744.02(B)(3) supports the appellate court's holding that a traffic-control device is not in repair when it "no longer serves its purpose" due to "some extraneous factor," 2016-Ohio-8097, 75 N.E.3d 779, at ¶ 22. An extraneous factor is by definition something "outside or beyond" the public road. Webster's Third New International Dictionary at 807 (defining "extraneous"). Had the General Assembly intended to impose liability for something extraneous to the public road (such as foliage along it), it could have done so expressly. It did not, and a court may not rewrite the plain and unambiguous language of a statute under the guise of statutory interpretation, Doe v. Marlington Local School Dist. Bd. of Edn. , 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 29.

{¶ 21} Here, there is no showing that the stop sign was not in good or sound condition or that it was otherwise deteriorated or disassembled. In fact, the only conclusion that may be drawn from the evidence in the record, which includes photographs of the stop sign from different angles, is that the sign was in repair at the time of the accident.

{¶ 22} Accordingly, the city was entitled to summary judgment on claims that it negligently failed to keep the public road in repair.

Removing Obstructions from Public Roads

{¶ 23} The city may also be held liable for injury caused by the "negligent failure to remove obstructions from public roads." R.C. 2744.02(B)(3).

{¶ 24} The General Assembly enacted the current version of R.C. 2744.02(B)(3) to supersede decisions from this court construing the prior version of the statute as providing an exception to immunity for conditions that were "not actually on the roadway." Howard , 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, at ¶ 27-28. Those decisions, for instance, had interpreted earlier language creating liability for a political subdivision's failure to keep a roadway "free from nuisance" to mean that there was a duty to remedy conditions such as a defective tree limb threatening to fall on a roadway, Harp v. Cleveland Hts. , 87 Ohio St.3d 506, 721 N.E.2d 1020 (2000), or crops growing alongside a road and obstructing the view of approaching traffic, Manufacturer's Natl. Bank of Detroit v. Erie Cty. Rd. Comm. , 63 Ohio St.3d 318, 587 N.E.2d 819 (1992). We recognized in Howard that in revising the statute, the legislature had used language "that focused solely on the roadway itself" and sought "to limit political-subdivision liability for roadway injuries and deaths." Howard at ¶ 29. We therefore concluded in Howard that the duty "to remove obstructions from public roads" under R.C. 2744.02(B)(3) extends only to "an obstacle that blocks or clogs the roadway and not merely a thing or condition that hinders or impedes the use of the roadway or that may have the potential to do so." Id. at ¶ 30.

{¶ 25} We adhere to our holding in Howard explaining what an obstruction is. But that definition, standing alone, does not resolve the question here: When does a political subdivision have a duty to remove a potential obstruction from a mandatory traffic-control device that is part of the public road? Accordingly, although the parties focus on the meaning of the term "obstructions" as we construed it in Howard , that word must be read in the context of the whole provision creating the duty to remove obstructions from public roads. See R.C. 1.42 ;

D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health , 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 19 ("all words [in a statute] should have effect and no part should be disregarded").

{¶ 26} Because R.C. 2744.02(B)(3) does not define the word "from," we construe it according to its common usage. R.C. 1.42. In this context, the word "from" is "used as a function word to indicate the source or original or moving force of something: as * * * (4) the place of origin, source, or derivation of a material or immaterial thing * * * < took a dime [from] his pocket> * * *." Webster's Third New International Dictionary at 913. As the United States Court of Appeals for the D.C. Circuit has noted, "one who states that a man 'took a dime [from] his pocket' could only be understood to mean that the dime originated from a specific location on a specific person." Natl. Assn. of Clean Water Agencies v. Environmental Protection Agency , 734 F.3d 1115, 1125 (D.C.Cir.2013).

{¶ 27} The duty to "remove obstructions from public roads" therefore indicates that the obstruction must originate in a specific location: the public road. And because the word "from" denotes a specific place, it cannot refer to conditions that are only near or in the vicinity of public roads. See State v. Swidas , 133 Ohio St.3d 460, 2012-Ohio-4638, 979 N.E.2d 254, ¶ 20. Rather, a political subdivision has a duty to remove obstructions that are on public roads, and pursuant to the statutory definition of "public roads," that includes only obstructions that are on a roadway, on a bridge, or on a mandated traffic-control device.

{¶ 28} For this reason, although a political subdivision is not immune from liability for the negligent failure to remove an obstruction from a stop sign required by the Ohio Manual of Uniform Traffic Control Devices, R.C. 2744.02(B)(3) creates no duty to remove foliage from the devil strip when it is 34 feet, two inches in front of the stop sign and not on the sign itself. Because foliage cannot be removed from a stop sign if it is not on the stop sign, the exception to immunity provided by R.C. 2744.02(B)(3) does not apply.

{¶ 29} The General Assembly could have imposed a general duty on political subdivisions to maintain the vegetation along public roads, yet it chose not to do so, and it specifically excluded the devil strip from the definition of the term "public road." See R.C. 2744.01(H) (excluding berms, shoulders, and rights-of-way from the definition of "public roads"); Baker v. Wayne Cty. , 147 Ohio St.3d 51, 2016-Ohio-1566, 60 N.E.3d 1214, ¶ 23 (plurality opinion) ("when Baker's tire traveled off the edge of the pavement, it left the public road and dropped onto the berm or shoulder"). As we recognized in Howard , the enactment of the current version of R.C. 2744.02(B)(3) abrogated our holdings that political subdivisions have a duty to maintain vegetation growing above or alongside a roadway that may hinder the view of approaching traffic. Howard , 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, at ¶ 27-29, citing, e.g., Manufacturer's Natl. Bank of Detroit , 63 Ohio St.3d at 322-323, 587 N.E.2d 819. We may not reinstate that duty by judicial fiat. Accord Neal-Pettit v. Lahman , 125 Ohio St.3d 327, 2010-Ohio-1829, 928 N.E.2d 421, ¶ 22 ("The General Assembly chose not to mention attorney fees when it drafted the statute, and we decline to add them").

{¶ 30} The city was therefore entitled to summary judgment on claims alleging that it negligently failed to remove an obstruction from a public road.

Conclusion

{¶ 31} The General Assembly, the arbiter of public policy in Ohio, has acted "to limit political-subdivision liability for roadway injuries and deaths," Howard at ¶ 29, with a purpose to preserve " 'the fiscal integrity of political subdivisions,' " Hubbell v. Xenia , 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 23, quoting Wilson v. Stark Cty. Dept. of Human Servs ., 70 Ohio St.3d 450, 453, 639 N.E.2d 105 (1994). And it did so, in part, by limiting a political subdivision's liability for regulating, maintaining, and repairing public roads to the negligent failure to keep them in repair and to remove obstructions from them.

{¶ 32} Rather than second-guess the policy decisions of the legislative branch, "[o]ur role, in exercise of the judicial power granted to us by the Constitution, is to interpret and apply the law enacted by the General Assembly." Houdek v. ThyssenKrupp Materials N.A., Inc. , 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 29. And because R.C. 2744.02(B)(3) is unambiguous, we must simply apply its plain meaning here.

{¶ 33} In this case, the stop sign was in repair, because it was in good or sound condition and was not deteriorated or disassembled. And because the foliage was not on the stop sign, the city had no obligation to remove it from the devil strip. No genuine issues of material fact remain, the city is immune from liability, and the trial and appellate courts erred in failing to render judgment in its favor.

{¶ 34} Accordingly, we reverse the judgment of the Seventh District Court of Appeals and remand the matter to the trial court for it to dismiss the claims against the city.

Judgment reversed and cause remanded.

O'Donnell, French, Fischer, and DeWine, JJ., concur.

O'Connor, C.J., concurs in part and dissents in part, with an opinion joined by Harsha, J.

William H. Harsha, J., of the Fourth District Court of Appeals, sitting for DeGenaro, J.

{¶ 35} I agree with the majority that appellee, Judith Pelletier, failed to establish that the stop sign on Sanderson Avenue at 12th Street in Campbell was not in good repair on August 26, 2013, and I concur that appellant, the city of Campbell, was entitled to summary judgment on the claim that it negligently failed to keep the public road in repair. However, I disagree with the majority's interpretation of the exception to immunity that applies when an injury is caused by a political subdivision's "negligent failure to remove obstructions from public roads," R.C. 2744.02(B)(3).

{¶ 36} The General Assembly amended R.C. 2744.02(B)(3) in 2002. Prior to its amendment, the statute created an exception to immunity for political subdivisions for injuries "caused by their failure to keep public roads * * * in repair, and free from nuisance." Am.Sub.S.B. No. 106, 149 Ohio Laws, Part II, 3500, 3508. After its amendment, the statute limits liability to injuries "caused by [a political subdivision's] negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads." Id. The application of this amended language to a case involving an allegedly obstructed stop sign is a question of first impression for this court.

{¶ 37} In holding that the city is entitled to summary judgment on the question of its liability for negligently failing to remove an obstruction from the public road, the majority focuses almost exclusively on the meaning of the word "from," and barely considers the word "obstruction." The definition of "obstruction" is "something that obstructs or impedes" or "a condition of being clogged or blocked." Webster's Third New International Dictionary 1559 (2002). The definition of "obstruct" is "to be or come in the way of." Id.

{¶ 38} The majority interprets the statute to require a plaintiff to establish that an obstruction is "on" a traffic-control device in order to create a risk of liability, but there is no question that an object can obstruct or block a traffic-control device without literally being on it. The majority effectively rewrites the statute by interpreting the word "from" to mean "on" based on a single definition of the word "from" that the majority selects out of multiple offerings in a dictionary.

{¶ 39} Importantly, if the General Assembly had intended the immunity exception to exist only when an obstruction was "on" a public road, it could have used the word "on" instead of "from." It did not.

{¶ 40} The majority analogizes the removing of an obstruction "from" a stop sign to the act of taking a dime "from" a pocket, but deciding the case based on this definition simply does not make sense. Interpreting the statute as requiring that the obstacle literally touch the traffic-control device nearly eliminates blocked traffic-control devices from the liability exception because of the low likelihood that a traffic-control device will have an obstruction physically on it. But in "enacting a statute, it is presumed that * * * [t]he entire statute is intended to be effective." R.C. 1.47(B). Consequently, we should not adopt a strained reading that unduly limits the statute's effectiveness.

{¶ 41} A simple example highlights the shortcomings of the majority's analysis. Every driver in Ohio is concerned with the practical question whether a stop sign can be seen clearly from the road. From the perspective of a driver, it does not matter whether foliage touching a stop sign renders it unviewable or whether a tree growing two feet in front of it, but not touching it, does. Either way, the sign is impossible to see-thereby creating a dangerous situation. The majority, however, is not concerned with this practical reality faced by drivers across Ohio. It believes there is a difference between obstructing a stop sign with foliage from a tree planted two feet away and not touching it and foliage from a tree planted two feet away and actually touching it-even if under both scenarios, the stop sign is equally obstructed.

{¶ 42} We previously concluded that the General Assembly "used the word 'obstructions' in a deliberate effort to impose a condition more demanding than a showing of 'nuisance' in order for a plaintiff to establish an exception to immunity." Howard v. Miami Twp. Fire Div. , 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, ¶ 29. In Howard , we considered whether ice on a roadway was an obstruction. Id. at ¶ 15-17. We concluded that "an 'obstruction' must be an obstacle that blocks or clogs the roadway and not merely a thing or condition that hinders or impedes the use of the roadway or that may have the potential to do so." Id. at ¶ 30. Because "public roads" includes the traffic-control device at issue in this case, it is appropriate to replace "roadway" as used in Howard with "stop sign." The result is that an "obstruction" must be an obstacle that blocks the stop sign and not merely a thing or condition that hinders or impedes the use of the stop sign or that may have the potential to do so.

{¶ 43} The majority's narrow interpretation of "from" is also incompatible with the testimony legislators heard prior to voting on the 2002 amendments that added the words "negligent failure to remove obstructions from public roads" to R.C. 2744.02(B)(3). Representative Jay Hottinger assured legislators at the bill's first hearing in the House that "if there is negligence involved, there are consequences and liability and the political subdivision may be sued." Representative Jay Hottinger, Sponsor Testimony, House Local Government and Townships Committee, Meeting Report, Hannah Capitol Connection (Jan. 23, 2002). According to Representative Hottinger, under the pre-amendment statute, political subdivisions were liable for "any" failure to remove obstructions from the roadway and the intent of the amendment was to limit the liability of political subdivisions to "negligent" failures to remove roadway obstructions. Id. And Mark Landes, an attorney testifying on behalf of the County Commissioners Association, stated at a Senate committee hearing that the section of the bill pertaining to roadway liability would not change the law substantially but would make it much clearer with the addition of the term "negligence." Mark Landes, Testimony on Behalf of the County Commissioners Association, Senate State and Local Government and Veterans Affairs Committee, Meeting Report, Hannah Capitol Connection (June 6, 2001).

{¶ 44} It is evident, based on this testimony and our own precedent, that the General Assembly's two key motivations in amending the law were to avoid liability for lawsuits brought against political subdivisions for nuisances rather than true obstructions and to provide immunity to political subdivisions that had not been at least negligent in failing to remove obstructions. As evidenced by the General Assembly's decision to continue including certain traffic-control devices in the definition of "public roads," the 2002 amendments did not eliminate liability for a city's negligent failure to remove obstacles obstructing mandatory stop signs, and there is no evidence that legislators intended to add a requirement that the obstacle be touching the public road.

{¶ 45} As we did in Howard , this court should focus its inquiry on whether the public road (in this case, the stop sign) is blocked in a way that renders the stop sign wholly unserviceable, not merely more difficult to see. Accordingly, to the extent that an obstacle is actually blocking a traffic-control device from the view of a driver at all distances in which it would be effective, I would hold that a political subdivision may be liable for negligently failing to remove the obstruction, pursuant to R.C. 2744.02(B)(3).

{¶ 46} This court did not accept a proposition of law asserting that the city of Campbell was entitled to immunity under this clarified standard. But contrary to the decisions of the trial and appellate courts below, I would conclude that the trial court, not the jury, is responsible for resolving the immunity question. See Conley v. Shearer , 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992), quoting Roe v. Hamilton Cty. Dept. of Human Servs. , 53 Ohio App.3d 120, 126, 560 N.E.2d 238 (1st Dist.1988) (" 'Whether immunity may be invoked is a purely legal issue, properly determined by the court prior to trial' "). That it is necessary to consider the facts in order to determine whether the city negligently failed to remove an obstruction does not transform the immunity question into one that cannot be answered by the court.

See O'Day v. Webb , 29 Ohio St.2d 215, 219, 280 N.E.2d 896 (1972) ("the fact that a question of law involves a consideration of the facts or the evidence does not turn it into a question of fact"). Accordingly, I would remand the case to the trial court for further proceedings. I dissent in part.

Harsha, J., concurs in the foregoing opinion.

      In Howard , we mistakenly stated that Am.Sub.S.B. No. 106, 149 Ohio Laws, Part II, 3500, "also limited the definition of 'public roads' from a more expansive reading that included 'berms, shoulders, rights-of-way, or traffic control devices' to one that focused solely on the roadway itself," 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, at ¶ 29. In fact, although that legislation limited the definition of "public roads," that definition still includes "traffic control devices" that "are mandated by the Ohio manual of uniform traffic control devices," R.C. 2744.01(H).


author: Per Curiam.

text:
    The STATE EX REL. DOE v. GALLIA COUNTY COMMON PLEAS COURT.
    No. 2017-1673
    Supreme Court of Ohio.
    Submitted January 23, 2018 Decided June 7, 2018
    J. Roger Smith II, Huntington, WV, for relator.
    Montgomery, Rennie & Jonson, Lisa M. Zaring, Cincinnati, and Anthony M. McNamara, for respondent.
   Per Curiam.

{¶ 1} On November 30, 2017, relator, John Doe, filed a complaint for a writ of mandamus to compel respondent, Gallia County Common Pleas Court, to enforce its 2013 order sealing the record in a criminal case against Doe in accordance with R.C. 2953.52 and to rule on his 2017 motion to reseal the record. The common pleas court has filed a motion to dismiss Doe's complaint. For the reasons that follow, we deny the common pleas court's motion to dismiss, sua sponte convert Doe's complaint to a request for a writ of procedendo (the appropriate writ to compel the relief he seeks), and grant a writ.

Background

{¶ 2} A jury convicted Doe of three fifth-degree felonies and found him not guilty of several other charged offenses. In 2012, the Fourth District Court of Appeals vacated Doe's convictions and remanded his case to the common pleas court, where the charges were dismissed with prejudice.

{¶ 3} Doe filed an application in the trial court to seal his official records in the case pursuant to R.C. 2953.52(A)(1), under which "[a]ny person, who is found not guilty of an offense by a jury or a court or who is the defendant named in a dismissed complaint, indictment, or information may apply to the court for an order to seal the person's official records in the case." Common pleas court judge D. Dean Evans found that

(1) the applicant was found NOT GUILTY of Counts 3, 5, and 6 of the Indictment, * * * the remaining Counts were vacated on appeal, and then, upon application of the parties, DISMISSED with prejudice, (2) there is no criminal proceeding pending against the applicant, (3) the application was filed in a timely manner, and (4) the interest[s] of the applicant are not outweighed by any legitimate governmental need to maintain such records.

(Capitalization sic.) Because these findings met the criteria set forth in R.C. 2953.52(B), Judge Evans entered an order sealing the records of Doe's case pursuant to R.C. 2953.52(B)(4)'s mandate that if the statutory criteria are met, "the court shall issue an order directing that all official records pertaining to the case be sealed and that, except as provided in [ R.C. 2953.53 ], the proceedings in the case be deemed not to have occurred." (Emphasis added.)

{¶ 4} Doe alleges that after this order was issued, the trial-court and appellate-court records were sealed; however, the appellate court's opinion was still available on court websites. Doe alleges that he filed a motion in the court of appeals that somehow resulted in the court of appeals making his appellate records public again. It is unclear on this record why the court of appeals, which has the general responsibility to control its own records, did not grant Doe relief.

{¶ 5} In 2017, Doe filed an emergency motion in the common pleas court for an order resealing his records. According to Doe, Judge Margaret Evans held a conference call with Doe, his counsel, and counsel for the state in July 2017, during which the state "agreed that the records should be sealed." Doe alleges that since the conference call, Judge Evans has neither taken action to enforce her predecessor's 2013 order to seal nor ruled on his motion to reseal.

{¶ 6} On November 30, 2017, Doe filed, under seal, his complaint for a writ of mandamus. On December 6, 2017, outside counsel for the common pleas court filed a notice of appearance, which prompted Doe to file a motion to disqualify outside counsel. On December 22, 2017, the common pleas court filed a motion to dismiss, which Doe opposed. The same day, the common pleas court filed its memorandum in opposition to Doe's motion to disqualify.

Analysis

Motion to dismiss

{¶ 7} The common pleas court moved to dismiss Doe's complaint on the ground that it fails to state a claim for which relief can be granted. Dismissal is required if it appears beyond doubt, after presuming the truth of all material factual allegations in the complaint and making all reasonable inferences in Doe's favor, that he is not entitled to the requested extraordinary relief. State ex rel. Bates v. Court of Appeals for the Sixth Appellate Dist. , 130 Ohio St.3d 326, 2011-Ohio-5456, 958 N.E.2d 162, ¶ 8.

{¶ 8} The common pleas court first contends that Doe's complaint should be dismissed because he failed to caption his complaint "in the name of the state on the relation of the person applying," in compliance with R.C. 2731.04. But we recently held that "the requirements of that statute are not jurisdictional," noting a number of cases that were not dismissed for the relator's failure to caption his or her complaint in the name of the state. Salemi v. Cleveland Metroparks , 145 Ohio St.3d 408, 2016-Ohio-1192, 49 N.E.3d 1296, ¶ 15. Moreover, Doe has requested leave to amend the case caption, which we grant.

{¶ 9} The common pleas court next argues that Doe is not entitled to relief because he has an adequate remedy in the ordinary course of the law, the lack of which is required for Doe to receive extraordinary relief, e.g. , State ex rel. Ward v. Reed , 141 Ohio St.3d 50, 2014-Ohio-4512, 21 N.E.3d 303, ¶ 9-10.

{¶ 10} The common pleas court asserts that "the sealing statute itself" provides Doe with an adequate remedy in the ordinary course of the law. Under that statute, an order to seal "applies to every public office or agency that has a record of the case that is the subject of the order." R.C. 2953.53(C). The statute provides that "[t]he court * * * shall send notice of any order issued pursuant to [ R.C. 2953.52(B)(4) ] to any public office or agency that the court knows or has reason to believe may have any record of the case, whether or not it is an official record, that is subject to the order," R.C. 2953.53(A)(1), and "[a] person whose official records have been sealed pursuant to an order issued pursuant to [ R.C. 2953.52 ] may present a copy of that order and a written request to comply with it, to a public office or agency that has a record of the case that is the subject of the order," R.C. 2953.53(B).

{¶ 11} Upon receipt of a sealing order or "upon otherwise becoming aware of an applicable order to seal official records * * * a public office or agency shall comply with the order." (Emphasis added.) R.C. 2953.53(D). However, the public office or agency "may maintain a record of the case that is the subject of the order if the record is maintained for the purpose of compiling statistical data only and does not contain any reference to the person who is the subject of the case and the order." Id.

{¶ 12} An adequate remedy in the ordinary course of the law " 'includes equitable as well as legal remedies; and where there is an adequate equitable remedy, mandamus will not lie.' " State ex rel. Pressley v. Indus. Comm. , 11 Ohio St.2d 141, 168, 228 N.E.2d 631 (1967), quoting 35 Ohio Jurisprudence 2d, Mandamus, Section 31, at 278. "The alternative must be complete, beneficial, and speedy in order to constitute an adequate remedy at law." State ex rel. Ullmann v. Hayes , 103 Ohio St.3d 405, 2004-Ohio-5469, 816 N.E.2d 245, ¶ 8. While R.C. 2953.53(B) provides the person whose case is subject to a sealing order the right to notify any public office, it is not a legal or equitable remedy, as the common pleas court contends, and is therefore not an adequate remedy that will preclude the issuance of an extraordinary writ.

{¶ 13} The common pleas court also submits that Doe has an adequate remedy through petitioning the common pleas court to enforce its own order. Indeed, Doe's complaint alleges that he recently filed in the common pleas court an "[e]mergency [m]otion * * * seeking to Order the records re-sealed." However, the gist of Doe's complaint is that the common pleas court has not taken any action in regard to his emergency motion to reseal.

{¶ 14} We conclude that procedendo, not mandamus, is the appropriate writ to achieve the result Doe seeks. " 'A writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment.' "

State ex rel. R.W. Sidley, Inc. v. Crawford , 100 Ohio St.3d 113, 2003-Ohio-5101, 796 N.E.2d 929, ¶ 16, quoting State ex rel. Weiss v. Hoover , 84 Ohio St.3d 530, 532, 705 N.E.2d 1227 (1999). "Although mandamus will lie in cases of a court's undue delay in entering judgment, procedendo is more appropriate, since '[a]n inferior court's refusal or failure to timely dispose of a pending action is the ill a writ of procedendo is designed to remedy.' " State ex rel. Dehler v. Sutula , 74 Ohio St.3d 33, 35, 656 N.E.2d 332 (1995), quoting State ex rel. Levin v. Sheffield Lake , 70 Ohio St.3d 104, 110, 637 N.E.2d 319 (1994).

{¶ 15} Although Doe's complaint seeks a writ of mandamus, we use our plenary authority to sua sponte convert his request to one for a writ of procedendo. See State ex rel. Dispatch Printing Co. v. Louden , 91 Ohio St.3d 61, 66, 741 N.E.2d 517 (2001). As in Louden , the common pleas court has not asserted that the complaint should be dismissed "because it was improperly styled," id.

{¶ 16} A writ of procedendo is appropriate when the petitioner has "a clear legal right to require the trial court to proceed," there is "a clear legal duty on the part of the trial court to proceed," and there is no adequate remedy in the ordinary course of the law. Ward , 141 Ohio St.3d 50, 2014-Ohio-4512, 21 N.E.3d 303, at ¶ 9. Here, Doe alleges that he filed a motion to reseal in 2017 and that the common pleas court has not ruled on that motion, despite the state's assurance in a telephone conference with the common pleas court in July 2017 that it does not object to the motion. While that does not mean that the motion must be granted, Doe has a clear legal right to have the motion ruled on, and the common pleas court has a clear legal duty to rule on it. We have already determined that Doe lacks an adequate remedy in the ordinary course of the law.

{¶ 17} We do not know the current status of Doe's motion to reseal. But the common pleas court has not asserted in any of its filings in this court that it has ruled on the motion. We therefore deny the common pleas court's motion to dismiss Doe's complaint, and we issue a writ of procedendo ordering the common pleas court-if it has not already done so-to rule on Doe's motion to reseal, and to serve on the Fourth District Court of Appeals a copy of its ruling on that motion and a copy of its 2013 order sealing the record.

Motion to seal

{¶ 18} Our Rules of Practice provide that documents filed in this court "shall be available for public access pursuant to Sup.R. 44 through 47. A document that has been sealed pursuant to a court order * * * or is the subject of a motion to seal pending in the Supreme Court, shall remain under seal and not be made available for public access unless ordered by the Supreme Court." S.Ct.Prac.R. 3.02(A)(1)(b). Doe attached to his complaint a redacted copy of the common pleas court's 2013 order to seal his records. The common pleas court does not challenge the validity of the 2013 order to seal. Doe asserts that the pleadings filed in this court in this original action should not be publicly available and should be sealed, and the common pleas court does not oppose Doe's motion. We order that the pleadings filed in this original action be sealed.

Motion to disqualify respondent's counsel

{¶ 19} Doe asks that this court disqualify the common pleas court's counsel on the basis of R.C. 309.09(A), which states:

The prosecuting attorney shall be the legal adviser of the board of county commissioners, board of elections, all other county officers and boards, and all tax-supported public libraries * * *. The prosecuting attorney shall prosecute and defend all suits and actions that any such officer, board, or tax-supported public library directs or to which it is a party, and no county officer may employ any other counsel or attorney at the expense of the county, except as provided in [ R.C. 305.14 ].

If there is a conflict between the prosecutor and the county officer or board that the prosecutor must represent, R.C. 305.14(A) provides the process by which private counsel may be employed.

{¶ 20} Because we grant Doe a writ of procedendo, we deny as moot his request to disqualify the common pleas court's counsel.

Conclusion

{¶ 21} We deny the common pleas court's motion to dismiss, grant Doe's motion to amend the case caption, and sua sponte convert Doe's request for a writ of mandamus to a request for a writ of procedendo. We grant a writ of procedendo ordering the common pleas court-if it has not already done so-to rule on Doe's motion to reseal and to serve on the Fourth District Court of Appeals a copy of its ruling on that motion and a copy of its 2013 order sealing the record. We grant Doe's motion to seal the pleadings filed in this original action. And we deny as moot Doe's motion to disqualify counsel.

Motion to dismiss denied and writ of procedendo granted.

O'Connor, C.J., and French and Fischer, JJ., concur.

O'Donnell, J., concurs in part and dissents in part, with an opinion.

Kennedy, J., dissents, with an opinion.

DeWine and DeGenaro, JJ., not participating.

{¶ 22} I dissent from the lead opinion's decision to sua sponte convert John Doe's request for a writ of mandamus to a request for a writ of procedendo, as that is not a practice undertaken by this court on behalf of litigants. I would grant a writ of mandamus pursuant to R.C. 2953.52(B)(4) ordering the Gallia County Common Pleas Court to rule on Doe's motion to reseal if it has not yet done so and to serve a copy of its ruling on the Fourth District Court of Appeals. The law of the case has already been established and the predecessor judge made the requisite findings necessary to satisfy the statute requiring that the record be sealed.

{¶ 23} Therefore, in accordance with the statute, the common pleas court "shall issue an order directing that all official records pertaining to the case be sealed and that * * * the proceedings in the case be deemed not to have occurred." R.C. 2953.52(B)(4). I concur in the lead opinion in all other respects.

{¶ 24} Because the lead opinion in this case grants a peremptory writ of procedendo without first allowing respondent, Gallia County Court of Common Pleas, to answer the complaint, I dissent.

{¶ 25} Before a writ of procedendo may issue, the relator is required to demonstrate a clear legal right to have the respondent proceed. State ex rel. Charvat v. Frye , 114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270, ¶ 13. However, relator, John Doe, never sought that writ, and as the lead opinion admits, "[w]e do not know the current status of Doe's motion to reseal," lead opinion at ¶ 17. By itself, this factual question precludes us from issuing a peremptory writ of procedendo, which is appropriate only "if the pertinent facts are uncontroverted and it appears beyond doubt that [the relator] is entitled to the requested writ." State ex rel. Rodak v. Betleski , 104 Ohio St.3d 345, 2004-Ohio-6567, 819 N.E.2d 703, ¶ 12.

{¶ 26} The lead opinion also points out that the common pleas court "has not asserted in any of its filings in this court that it has ruled on the motion." Lead opinion at ¶ 17. That is irrelevant, because the common pleas court had no duty to controvert the allegations of the complaint in filing a motion to dismiss.

{¶ 27} S.Ct.Prac.R. 12.04 permits a respondent to file an answer to a complaint or a motion to dismiss the complaint. Although the Rules of Practice do not provide the consequence of filing one or the other, S.Ct.Prac.R. 12.01(A)(2)(b) states that "[t]he Ohio Rules of Civil Procedure shall supplement these rules unless clearly inapplicable." And pursuant to the Civil Rules, the filing of a motion to dismiss simply delays the deadline for the filing of an answer until after the court denies the motion. Civ.R. 12(A)(2) and (B) ; State ex rel. Yeagley v. Harden , 68 Ohio St.3d 136, 137, 624 N.E.2d 702 (1993). {¶ 28} A respondent's duty to admit or deny the allegations of the complaint in an answer therefore does not arise until the court denies the motion to dismiss. Civ.R. 8(D) ; Yeagley at 137, 624 N.E.2d 702. This is why we presume the truth of all material factual allegations of the complaint when we review a motion to dismiss a procedendo action, see Rodak , 104 Ohio St.3d 345, 2004-Ohio-6567, 819 N.E.2d 703, at ¶ 10.

{¶ 29} For these reasons, a court generally may not grant a peremptory writ before an answer admitting or denying the material facts has been filed. State ex rel. Conley v. Park , 146 Ohio St.3d 454, 2015-Ohio-5226, 58 N.E.3d 1112, ¶ 9-10 ; State ex rel. Beacon Journal Publishing Co. v. Radel , 57 Ohio St.3d 102, 103, 566 N.E.2d 661 (1991) ; State ex rel. Temke v. Outcalt , 49 Ohio St.2d 189, 191, 360 N.E.2d 701 (1977). A peremptory writ will not issue unless the relator is entitled to relief as a matter of law and fact, Conley at ¶ 9, and until the answer is filed, all we have to review are allegations in a complaint.

{¶ 30} At this stage of the proceedings in this case, no answer has been filed and the common pleas court may still deny the allegations in the complaint, dispute the authenticity of the documents attached to it, or assert an affirmative defense precluding relief in Doe's favor. The decision to grant a peremptory writ of procedendo in this case is therefore premature.

{¶ 31} Accordingly, I would deny the motion to dismiss and order the common pleas court to file an answer to Doe's complaint.

      In November 2016, Judge Margaret Evans was elected to replace former Judge D. Dean Evans.


text:
    The STATE EX REL. GUEST v. HUSTED, Secy., et al.
    No. 2018-0889
    Supreme Court of Ohio.
    Submitted August 2, 2018 Decided August 8, 2018
    Warner Mendenhall Akron, and Logan Trombley, for relator.
    Michael DeWine, Attorney General, and Renata Y. Staff and Halli Brownfield Watson, Assistant Attorneys General, for respondent Ohio Secretary of State Jon Husted.
    Fishel, Downey, Albrecht & Riepenhoff, L.L.P., Daniel T. Downey, Melanie J. Williamson, and Angelica M. Jarmusz, Columbus, for respondent Columbiana County Board of Elections.
   Per Curiam.

{¶ 1} In this expedited election case, relator, Heaven Guest, seeks a writ of mandamus to compel respondents, Ohio Secretary of State Jon Husted and the Columbiana County Board of Elections, to place her name on the November 6, 2018 ballot as an independent candidate for judge of the Columbiana County Court of Common Pleas. Because Guest has failed to carry her burden to show by clear and convincing evidence that Husted abused his discretion, we deny the writ.

I. Facts

{¶ 2} On May 7, 2018, Guest filed a nominating petition and statement of candidacy to run as an independent candidate for common-pleas-court judge in the November general election. Before she filed the paperwork to run as an independent candidate, Guest was an active member of the Democratic Party. In fact, she was appointed to the Columbiana County Democratic Party Central Committee in February 2018. She alleges that she resigned from that position and disaffiliated herself from the Democratic Party on April 14, 2018.

{¶ 3} At a regular board-of-elections meeting on May 29, a member of the board moved to reject Guest's nominating petition, arguing that Guest was not eligible to run as an independent candidate because she had not disaffiliated from the Democratic Party at the time she filed her petition. Guest was not present at the meeting. When the motion resulted in a tie vote, the board referred the matter to Husted under R.C. 3501.11(X).

{¶ 4} The board members gave Husted evidence and presented written arguments supporting their views. The members opposing Guest's candidacy argued that she attempted to become an independent candidate only after it appeared that the incumbent judge in Columbiana County-a Republican whom the Democratic Party had not opposed-might not win the primary election. The Republican incumbent did, in fact, lose the primary election on May 8, 2018, and the board members opposing Guest argued that her candidacy is a coordinated, impermissible effort by the Democratic Party to field a candidate in the general election. In support of this theory, the board members opposing Guest pointed to the fact that the majority of the circulators of Guest's part-petitions are Democrats-and that one of the circulators was Nick Barborak, chairman of the Columbiana County Democratic Party. They also highlighted that Guest's nominating committee consists of her husband and four Democrats.

{¶ 5} In the view of the board members opposing Guest's candidacy, ample evidence shows that she claimed disaffiliation from the Democratic Party in bad faith. They argued that she remained a member of the county Democratic Party central committee at the time of their vote, because the board had no notice of her purported resignation, see R.C. 3517.06. They also pointed to Guest's Facebook page, which included numerous photos of her with national and local Democratic figures and statements supportive of Democratic candidates, and to her financial contributions to the campaigns of Democratic candidates in 2018.

{¶ 6} In response, the board members who voted in favor of Guest's candidacy argued that she meets the requirements to serve as a judge, submitted the requisite number of valid signatures with her petition, and demonstrated her independence from any political party by voting "as an independent" in the May 2018 primary election. Included with their submission was a copy of a handwritten letter from Guest to Barborak, the county Democratic Party chairman. The entire letter, dated April 14, 2018, states:

Mr. Barborak,
I am writing to reject/resign my appointment as a PC.[ ] My political views are independent.
I sincerely appreciate the thought and look forward to talking to you again.
Heaven Guest

{¶ 7} Husted received the board's request for a tie-breaking vote on June 1. Following the referral to Husted, the board members who had voted to reject Guest's petition informed Husted that they wanted an opportunity for the board to hold a special meeting so that it could "address a series of substantive questions relating to the veracity and authenticity and truthfulness" of Guest's claim that she had resigned from the county Democratic Party central committee on April 14. Specifically, they wanted to investigate the matter under R.C. 3501.11(J) by issuing subpoenas to Guest and Barborak. The two members who opposed Guest's candidacy attempted to call a special meeting on June 6, but no quorum was reached because the other members, both Democrats, did not attend.

{¶ 8} On June 8, Husted voted to reject Guest's petition, finding that she "remains affiliated with the Democratic Party." In reaching his decision, Husted focused on Guest's position on the county Democratic Party central committee, the composition of her nominating committee, the support she has received from members of the Democratic Party, and her support of Democratic candidates.

{¶ 9} Guest commenced this action in this court on June 22.

II. Analysis

A. Legal standard

{¶ 10} R.C. 3501.01(I) defines "independent candidate" as "any candidate who claims not to be affiliated with a political party, and whose name has been certified * * * through the filing of a statement of candidacy and nominating petition, as prescribed in section 3513.257 of the Revised Code." R.C. 3513.257 requires an independent candidate to file a statement of candidacy and nominating petition no later than 4:00 p.m. the day before the day of the primary election. This court has accepted the view of the Sixth Circuit Court of Appeals that R.C. 3501.01(I) and 3513.257 require an independent candidate to make her claim of disaffiliation from a political party in good faith. See State ex rel. Davis v. Summit Cty. Bd. of Elections , 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, ¶ 27, following Morrison v. Colley , 467 F.3d 503, 509 (6th Cir.2006).

{¶ 11} To prevail on her mandamus claim, Guest must establish a clear legal right to have her name placed on the November ballot, a corresponding clear legal duty of Husted to place her name on the ballot, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Allen v. Warren Cty. Bd. of Elections , 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507, ¶ 8. She must prove her case by clear and convincing evidence. State ex rel. Orange Twp. Bd. of Trustees v. Delaware Cty. Bd. of Elections , 135 Ohio St.3d 162, 2013-Ohio-36, 985 N.E.2d 441, ¶ 14.

{¶ 12} Given the proximity of the November election, Guest satisfies the third requirement. State ex rel. Ohio Liberty Council v. Brunner , 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410, ¶ 27. To satisfy the first two requirements, Guest must show that Husted "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, 778 N.E.2d 32, ¶ 11. Because Guest makes no allegation of fraud or corruption, she must show that Husted abused his discretion or disregarded the law when he rejected her petition.

B. Husted's decision

{¶ 13} Husted's conclusion that Guest's claim of disaffiliation from the Democratic Party was not made in good faith was based on four basic findings: (1) that Guest still was a member of the county Democratic Party central committee at the time she submitted her petition, (2) that her nominating committee consisted of her husband and four Democrats, (3) that her candidacy received support from members of the Democratic Party, and (4) that she recently has supported Democratic candidates. Husted addressed each of these findings separately, but he viewed them together in the context of the Republican incumbent judge's primary-election loss and the Democratic Party's failure to field a candidate for the judicial seat. He concluded that Ohio law does not permit the Democratic Party "a second bite at the apple" after having failed to field its own candidate in the Democratic primary. We agree that this broader context was relevant to Husted's inquiry.

{¶ 14} Guest has not shown by clear and convincing evidence that Husted abused his discretion in finding that she claimed disaffiliation from the Democratic Party in bad faith. We address Husted's findings in turn.

1. Membership on the county central committee

{¶ 15} In his decision, Husted concluded that "Guest remains affiliated with the Democratic Party." He reached that conclusion based on a letter from Barborak to the board stating that Guest is a member of the county Democratic Party central committee. That letter is dated February 27 and was received by the board on March 30. In their briefs, Husted and the board contend that Guest's name was on the central committee's active roster when she claimed to be disaffiliated from the Democratic Party on May 7.

{¶ 16} Ordinarily, there are few affirmative steps an Ohio elector can take to disaffiliate from a political party. "Party affiliation in Ohio is purely a matter of self-identification, and that self-identification is subject to change."

State ex rel. Stevens v. Fairfield Cty. Bd. of Elections , 152 Ohio St.3d 584, 2018-Ohio-1151, 99 N.E.3d 376, ¶ 20. In State ex rel. Coughlin v. Summit Cty. Bd. of Elections , we explained:

A voter cannot register as an independent, except in the negative sense of not voting in partisan primaries or signing partisan nominating petitions. The Revised Code contains no provision for declaring party affiliation when one registers to vote, State ex rel. Young v. Gasser , 21 Ohio St.2d 253, 255, 257 N.E.2d 389 (1970), and the registration forms do not contain a space for that information. Rather, party affiliation or membership is "that which [the voter] desires it to be from time to time." Id. at 257 [257 N.E.2d 389]. Essentially, being "registered" as a Republican or Democrat means nothing more than voting in that party's primary, because the local boards of elections keep records of that information.

136 Ohio St.3d 371, 2013-Ohio-3867, 995 N.E.2d 1194, ¶ 28, fn. 2. Thus, disaffiliation from a political party largely involves an elector's inaction .

{¶ 17} But here, Guest had been appointed to the county Democratic Party central committee. Clearly, resigning from that position was an affirmative step she could-and needed to-take to disaffiliate from the Democratic Party.

{¶ 18} In reaching his decision, Husted acknowledged the handwritten letter by which Guest attempted to resign from her position on the county central committee, but he nevertheless found that she remained on the committee. As an initial matter, we reject Husted's suggestion that Guest's resignation was not effective simply because the board had not received notice of the change under R.C. 3517.06. That statute requires the secretary of a county central committee to file with the county board of elections a list of the names and addresses of the committee's members and to promptly report any changes in the membership. Thus, the secretary of the county Democratic Party central committee-not Guest-was responsible for notifying the board of Guest's resignation. Guest cannot be faulted for not taking steps that were not under her control. See State ex rel. Morris v. Stark Cty. Bd. of Elections , 143 Ohio St.3d 507, 2015-Ohio-3659, 39 N.E.3d 1232, ¶ 35-36.

{¶ 19} But we do not conclude that Husted abused his discretion in viewing Guest's letter with suspicion. He first questioned its origin and veracity, noting that a "copy of a document is never the best evidence when there are questions about the original's authenticity." Continuing, he explained that it "would have been useful to receive direct testimony from Ms. Guest on these issues." The record shows that members of the board attempted to conduct a hearing at which these issues could have been addressed, but no hearing was held after the board's Democratic members failed to attend. Although there is no direct evidence that Guest prevented the hearing from occurring, Husted was not required to ignore the role of the Democratic members in preventing it from occurring or to view their nonattendance in isolation from the larger context in which the Democratic Party had failed to field a candidate. Therefore, he did not abuse his discretion in questioning the letter's authenticity.

{¶ 20} Husted also found the content of the letter to be insufficient, concluding that its language is "ambiguous at best." The letter's two operative sentences state that Guest was "writing to reject/resign [her] appointment as a PC" and that her "political views are independent." She concluded by stating that she "look[ed] forward to talking to [Barborak] again." Husted noted that Guest did not "declare that she wishe[d] to disaffiliate from the Democratic Party" and that "it is possible to have 'independent' political views and still be a member of a political party." {¶ 21} Resigning from her position on the county Democratic Party central committee was one of the few affirmative steps Guest could take to validate her disaffiliation. If that was her goal, she did not do it well. She did not explain the import of her holding independent views (i.e., that she did not wish to remain a Democrat) or unequivocally state that she meant to leave the party. Indeed, she ended her letter with a statement of hope to be in further communication with the county Democratic Party chairman. The letter contains neither the formality nor the clarity one would expect from someone looking to disaffiliate from a political party. Thus, we cannot conclude that Husted abused his discretion in questioning the letter's effectiveness.

2. Composition of Guest's nominating committee

{¶ 22} After addressing Guest's resignation letter, Husted found that "[e]ven assuming that Ms. Guest effectively resigned on April 14, 2018, it is perhaps most disingenuous to the claim of disaffiliation that her petitions, which are dated after the date of her purported resignation, list as members of her nominating committee the names of her husband and four Democrats." Husted expressed concern that a majority of Guest's nominating committee would have authority to name a replacement candidate if Guest were to withdraw as a candidate. See R.C. 3513.31(F). He concluded that "good faith disaffiliation had not taken place, given that she selected a super-majority of Democrats to represent her."

{¶ 23} No statute prevents members of a political party from constituting a majority (or supermajority) of an independent candidate's nominating committee after the candidate has disaffiliated from that party. See R.C. 3501.01(I), 3513.257, and 3513.261. Nor will we impose any such rule here. But we do acknowledge, as Husted did, that the inclusion of four Democrats on Guest's nominating committee is relevant to the determination whether her claim of disaffiliation from the political party was made in good faith. Thus, Husted did not abuse his discretion in considering that evidence.

3. Support from members of the Democratic Party

{¶ 24} Husted also relied on the fact that Guest accepted campaign support from members of the Democratic Party. Evidence shows that Democrats, including the county party chairman, circulated a majority of the part-petitions for Guest's candidacy. According to the board, of the 11 electors who circulated part-petitions for Guest's candidacy, 7 (counting Guest) are Democrats and they collected nearly 78 percent of the signatures. Husted also referenced a news article reporting that the county party chairman introduced Guest at the Columbiana County courthouse and accompanied her at an event in Columbiana County on May 10.

{¶ 25} Husted's concern that a majority of the individuals who circulated part-petitions for Guest's candidacy were Democrats is similar to his concern about the composition of her nominating committee: Although there is no rule forbidding their circulating the part-petitions, the fact that they did is relevant because it shows significant support of her candidacy by local Democrats, including Democratic Party leadership. The same can be said of Barborak's support of Guest's candidacy, as reported in the above-mentioned news article. Accordingly, Guest has not shown that Husted abused his discretion in assigning weight to this evidence.

4. Guest's support of Democratic candidates

{¶ 26} Husted also found that Guest's cash donation to a Democratic candidate within days of her purported disaffiliation showed that her claim of disaffiliation from the Democratic Party was made in bad faith. In the same vein, Husted and the board argue in their briefs that the contents of Guest's Facebook page demonstrate her continued affiliation with the Democratic Party.

{¶ 27} When he made his decision, Husted had evidence that Guest had contributed to the campaigns of Democratic candidates this year on January 25 ($35), March 1 ($50), and April 9 ($100)-all before she claimed to be disaffiliated from the Democratic Party when she filed her petition on May 7. In Davis , we recognized that financial contributions to a partisan candidate's campaign may be relevant to the question whether an independent candidate disaffiliated from a political party in good faith. 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, at ¶ 24-25. But we gave "little weight" to Davis's donations because "there is no necessary correlation between donations and political affiliation" and Davis made the donations before she filed her declaration of candidacy. Id. at ¶ 25. The same considerations cause us to accord little weight to Guest's donations. But our conclusion does not undermine Husted's decision, because he only briefly mentioned Guest's financial contributions to a Democratic candidate and nothing suggests that he afforded the evidence significant weight.

{¶ 28} As for Guest's Facebook page, Husted and the board try to analogize this case to Jolivette v. Husted , 694 F.3d 760 (6th Cir.2012), a case in which the putative independent candidate's Facebook page contained posts that undermined his disaffiliation claim, id. at 767-768. Jolivette is distinguishable because Jolivette's Facebook posts included explicit statements about his own membership in Republican organizations and his campaign website indicated that support for his candidacy was a "Vote for Strong Republican Leadership," id. The evidence from Guest's Facebook page was posted April 9, 2018, or earlier, and many of the posts were made in 2016. Unlike Jolivette, there is no evidence that Guest made representations related to her party affiliation on Facebook, either before or after she claimed to have disaffiliated from the Democratic Party.

III. Conclusion

{¶ 29} After reviewing the findings upon which Husted based his decision, analyzing those findings in context and as a whole, and affording them the appropriate weight, we find that Guest has not shown by clear and convincing evidence that Husted abused his discretion by refusing to place her name on the ballot, and we deny the writ accordingly.

Writ denied.

O'Connor, C.J., and French, Fischer, and DeWine, JJ., concur.

O'Donnell, J., concurs in judgment only.

Kennedy and DeGenaro, JJ., not participating.

      The board members provided evidence of contributions to Democratic candidates made by "Heaven R. DiMartino." Guest does not dispute that she made the contributions.

      The parties do not define "PC," but it appears to refer to "Precinct Committeeperson."

      The board has presented us with new evidence that Guest contributed $25 to the campaign of a candidate for state representative on June 2. Because evidence of that contribution was not presented to the board or to Husted, we do not consider it in determining whether Husted abused his discretion. See State ex rel. Tam O'Shanter Co. v. Stark Cty. Bd. of Elections , 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 11 (explaining that evidence that was not presented to a board of elections is not relevant to whether the board abused its discretion or clearly disregarded applicable law).