Republican Majority in Split Decision Says Brunner Failed to Follow State Law in Appointment Process

OhioNews Bureau

COLUMBUS, OHIO: In a widely anticipated decision from the all-Republican Supreme Court of Ohio on a case that pit the judgment of Ohio's Democratic Secretary of State against the recommendations of the Summit County Republican Party (SCRP) regarding the recommendation of a candidate to sit on the local board of elections, a 4-3 split decision on Monday, which made a case for state law not being followed, compelled Brunner to seat Brian Daley, a person she decided was not competent based on partisan information sent to her by a high-ranking member of the county’s Democratic Party, to the Summit County Board of Elections.

The ruling by the court followed a writ of mandamus by the SCRP when Brunner first rejected as incompetent Alex Arshinkoff, a multi-term member of the Summer County Board of Elections, and then rejected the party’s second recommendation, Brian Daley, on the same grounds, and then to appoint a third member of the SCRP, who was recommended to her by Democratic Party Finance Chairman Wayne Jones. The court ruled it all amounted to improper acts by Brunner that failed to comply with state election laws. In a legal battle that forced Brunner to answer questions in front of a video camera from Republican State Sen. Tim Grendell, who served as chief counsel to the SCRP, on what information she used and who she consulted with to reach her decision to not accept the nominations of both Arshinkoff and Daley, the larger message of the court, as codified by Justice Terrance O’Donnell in his concurring opinion is that “given the various interpretations of this statute apparent from the numerous opinions in this case, I would encourage members of the General Assembly to promptly revisit this section of the Revised Code and to clarify its intent with respect to the rights of the members of an executive committee and the duties of the secretary of state with respect to appointments to the county boards of elections.” The SCRP and Grendell accused Brunner of acting in concert with her Democratic Party "political henchmen" in "bushwhacking" first of Mr. Arshinkoff, whose appointment she rejected, and then that of Mr. Daley, who she also rejected.

Republicans said Brunner, 50, the first women to hold the office in Ohio, failed to follow state law in her unilateral appointment of Donald Varian, a Republican that recommended as the GOP representative on the panel. Mr. Varian is an Akron attorney.

The court rejected a GOP request to vacate certain decisions in which Mr. Varian participated during his brief tenure, saying that while his appointment was improper and not in compliance with Ohio law, he was there under the “color of law” and that decisions he had participated in, including the termination of seven staff members when the newly formed board organized itself – would stand.

The court’s majority decision was rendered by Justices Evelyn Stratton, Maureen O'Connor, Terrence O'Donnell, and Robert Cupp.

Justices dissenting were Chief Justice Thomas Moyer and Justices Paul Pfiefer and Judith Lanzinger. Pfiefer, a Republican by party affiliation whose dissenting decisions often reflect the concerns of Democrats, coined a catchy angle to his dissenting view, saying that “Ohioans learn something new today: two wrongs don’t make a writ.” Justice Pfeifer said the majority had granted the order sought on the basis of an argument “never raised and to which Secretary Brunner never had an opportunity respond.”

"Through a unique bit of judicial alchemy,” he wrote, “two unrelated concurring opinions that were each able to garner the support of only one other justice have combined to produce four votes to grant a writ of mandamus."

Continuing his cynical mockery of the majority’s decision, he said, "A majority of this court thus announces the granting of a writ of mandamus, but cannot exactly put its finger on why; it grants a writ of mandamus on the basis of an unclear legal duty. Especially disturbing is the fact that one of the concurrences is based upon a theory of relief so novel that the relator never raised it.”

Grendell had argued a secretary of state is required by law to appoint the person a political party executive committee recommends, unless she finds the person would not be a competent member of the board. Brunner, relying on an unsigned letter about Daley’s improper temperament, newspaper articles and editorials, reasoned he was not competent for the elections post.

Justice O’Donnell took on Pfeifer’s dissention, saying He would “pay no heed to Justice Pfeifer's coy argument that the statute does not specifically authorize a mandamus action for a second recommendation," he said at one point.” He also took “exception to his mischaracterization of my opinion” by suggesting that it converts the committee's right to make a recommendation into a right to appoint. O’Donnell said the statute plainly fixes the appointment authority with the secretary of state and that Pfeifer’s “analysis only confuses the issue.” O’Donnell didn’t stop focus all his venom on Pfeifer. He saved some for Chief Justice Thomas Moyer. "In addition, I take strong exception to the Chief Justice's misstatement that my view is 'a break from our previous decisions,’” he said. Reminding everyone that the court has never considered a case involving rejection of a second recommendation,” he said, “Politely, there is no previous decision involving rejection of a second recommendation."

"Finally, I think that the Chief Justice's mischaracterization of my view of this statute, implying that I have morphed the committee recommendation into a committee appointment, is disingenuous," Justice O'Donnell said. This decision marks the latest in a string of defeats, direct and indirect for Brunner, who some might say based on the negative headlines she’s generated during her 17-months on the job and accusations of being a “bully” and “coercive” that if she used on herself the same reasoning she used to not appoint the SCRP’s recommendation, she wouldn’t find herself competent to sit on a board of elections.