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IN THE SUPREME COURT OF OHIO THE STATE OF OHIO EX REL. Case No. 2012-1545 CITY OF BRECKSVILLE, OHIO, Original Action in Mandamus and Relator, Prohibition vs. Expedited Election Case, S.Ct.Prac.R. 10.9 JON HUSTED, ET AL., Respondents. EVIDENCE OF RESPONDENT CUYAHOGA COUNTY BOARD OF ELECTIONS DAVID J. MATTY * (0012334) MICHAEL DEWINE (0009181) * Counsel of Record Ohio Attorney General SHANA A. SAMSON (0072871) MICHAEL J. SCHULER * (0082390) Rademaker, Matty, Henrikson * Counsel of Record & Greve LLC AARON D. EPSTEIN (0063286) 55 Public Square, Suite 1775 DAMIAN W. SIKORA (0075224) Tel: (216) 621-6570/Fax: (216) 621-1127 Assistant Attorneys General drnattygnnmalaw. com Constitutional Offices Section ssampson(w',rmmg1aw.co m 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872/Fax: (614) 728-7592 SERGIO DIGERONIMO (0042030) michael.schuler(6hohioattomeyzeneral.gov 8748 Brecksville Road, Suite 216 aaron epsteinAohioattorneyQeneral.Qov Brecksville, Ohio 44141 damian. sikora(&ohioattorney¥eral. aoI Tel: (440) 546-9200/Fax: (440) 546-9201 sdiaeronimo ^brecksville.oh.us Counsel for Respondent Ohio Secretary of State Jon Husted o ^ ^^'^- MED G^ ^ G ( ^ ^ D F SEP 2 4 2012 CLtttK OF COURT ^Cy l.^Ep 4^t nF CC11(RT /^;^ I SUPREME COURT OF OHIO I SU PRCStliL LUUrI€ ui r.;i6i13 WILLIAM D. MASON (0037540) Prosecuting Attomey of Cuyahoga County, Ohio CHARLES E. HANNAN * (0037153) * Counsel ofRecord Assistant Prosecuting Attorney The Justice Center, Courts Tower, 8 th Floor 1200 Ontario Street Cleveland, Ohio 44113 Tel: (216) 443-7758/Fax: (216) 443-7602 channan(cUcuyahogaaounty.us Counsel for Respondent Cuyahoga County Board of Elections IN THE SUPREME COURT OF OHIO THE STATE OF OHIO EX REL. ) Case No. 2012-1545 CITY OF BRECKSVILLE, OHIO, Original Action in Mandamus and Relator, ) Prohibition Expedited Election Case, vs. S.Ct.Prac.R. 10.9 JON HUSTED, ET AL., EVIDENCE OF RESPONDENT Respondents. CUYAHOGA COUNTY BOARD OF ELECTIONS Pursuant to S.Ct. Prac. R. 10.9(A)(2)(b), Respondent Cuyahoga County Board of Elections respectfully submits the following evidence: 1. Affidavit of Eben O. McNair, IV; 2. Affidavit of Patrick McDonald. Respectfully submitted, WILLIAM D. MASON, Prosecuting Attorney of Cuyahoga County By: CHARLES E. HANNAN'^* (0037153) Assistant Prosecuting Attorney * Counsel of Record The Justice Center, Courts Tower, 8tr' Floor 1200 Ontario Street Cleveland, Ohio 44113 Tel: (216) 443-7758/Fax: (216) 443-7602 channauLdcuyahogacoimty.us Counsel for Respondent Cuyahoga County Board of Elections I PROOF OF SERVICE Pursuant to S.Ct.Prac.R. 10.9(C), a true copy of the foregoing Evidence of Respondent Cuyahoga County Board of Elections was served this S"S` day of September 2012 by e- mail upon: David J. Matty Sergio DiGeronimo Suite 216 Shana A. Samson 8748 Brecksville Road, Rademaker, Matty, Henrikson Brecksville, Ohio 44141 & Greve LLC 55 Public Square, Suite 1775 Cleveland, Ohio 44113 Counselfor Relator City ofBrecksville Michael DeWine, Ohio Attorney General Michael J. Schuler Aaron D. Epstein Damian W. Sikora Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16"' Floor Columbus, Ohio 43215 Counsel for Respondent Ohio Secretary ofState Jon Husted CHARLES E. HANNAN * Assistant Prosecuting Attorney * Counsel of Record 2 STATE OF OHIO SS. AFFIDAVIT COUNTY OF CUYAHOGA I, EBEN O. McNAIR; IV, being first duly sworn, depose and state the following: 1. I am a member of the Cuyahoga County Board of Elections and I have personal knowledge of the facts and circumstances stated herein. 2. Members and officers of the Brecksville-Broadview Heights Democratic Club and other activists drafted and gathered signatures for the "Brecksville Initiative In Support Of Movement To Amend The U.S. Constitution To Establish That Corporations Are Not People And Money Is Not Speech" (hereafter "the Initiative"). 3. I am the Democratic City Leader of Brecksville and am a member of the Breoksville- Broadview Heights Democratic Club and therefore know many of the individuals who were involved in drafting and gathering signatures for the Initiative. 4. I received many e-mails from individuals who were involved in drafting and gathering signatures for the Initiative while that process was underway. 5. I took no active role and did not substantively participate in the process of drafting and gathering signatures for the Initiative. 6. At one point, I offered to review the draft of the Initiative but ultimately did not do so. 7. I was not even aware of the Initiative language until I reviewed it in the context of considering the City of Breclcsville's protest correspondence that was received by the Cuyahoga County Board of Elections on August 9, 2012. 8. On or about August 14, 2012, the Cuyahoga County Board of Elections scheduled a hearing on the City of Brecksville's protest to be held on August 28, 2012. 9. Because I was familiar with some of the individuals who were involved in drafting and/or gathering signatures for the Initiative and out of an abundance of caution, I telephoned Gretchen A. Quinn, Elections Counsel, Office of Ohio Secretary of State Jon Husted, one to two weeks prior to the August 28, 2012 hearing to discuss whether in the Secretary of State's view there existed any conflict of interest that would warrant my recusal from considering the City of Brecksville's protest. 10. I separately contacted the Ohio Ethics Commission to inquire as to whether in its view there existed any conflict of interest that would warrant my recusal from considering the City of Brecksville's protest. I spoke with Staff Advisory Attorney Karen R. King and on or about August 20, 2012, she also sent me an e-mail indicating that she was unable to find any Commission precedent that directly addressed the issue I raised in my telephone call with her. She additionally sent me three (3) prior Ohio Ethics Commission opinions. Attached as Exhibit 1 is Ms. King's e-mail to me, with the three (3) opinions she provided to me, each one of which I read. 11. At Ms. King's suggestion, I additionally spoke with the Director of the Ohio Elections Commission, Philip C. Richter, who told me that he believed that his Commission did not have jurisdiction over my issue, but that he saw no problem from his perspective that would warrant my recusal from considering the City of Brecksville's protest. 12. I also reviewed the matter with the Cuyahoga County Board of Elections counsel, Reno Oradini, Esq., and he did not believe needed to recuse myself. 13. On August 27, 2012, at 11:18 a.m., I sent Secretary of State Elections Counsel Gretchen A. Quinn an e-mail to follow up on my earlier telephone call to her. A copy of my e-mail to Ms. Quinn is attached hereto as Exhibit 2. 2 14. In response to an August 27, 2012 voice-mail message left for me by Ms. Quinn, I sent her an e-mail at 3:09 p.m. that set forth the facts recited in paragraphs 1 through 12 of this Affidavit. A copy of my e-mail to Ms. Quinn is attached hereto as Exhibit 3, p. 2. 15. On August 27, 2012, at 3:11 p.m., I forwarded by e-mail to Ms. Quinn the August 20, 2012 e-mail that I had received previously from Ohio Ethics Commission Staff Advisory Attorney Karen R. King. A copy of my forwarding e-mail to Ms. Quinn is attached hereto as Exhibit 4. 16. On August 28, 2012 at 1:47 p.m., Ms. Quinn responded to my e-mail by indicating that the office of the Secretary of State did not see anything that would warrant my recusal from considering the City of Brecksville's protest, adding that if I were aware of facts that I believed had the likelihood of creating an appearance of impropriety or otherwise calling into question the integrity of the electoral process, then I should recuse myself from hearing the protest. See Exhibit 3, p. 1. 17. I do not believe that my familiarity with some of the individuals who were involved in drafting and/or gathering signatures for the Initiative would bias my consideration of the protest submitted by the City of Brecksville. 18. Prior to the public discussion of the City of Brecksville's protest at the August 28, 2012 meeting, I fully disclosed my relationship with the petitioners for the Brecksville issue; my receipt of e-mail correspondence regarding the Petition prior to the hearing; my lack of substantive participation in the process; and, following my consultations with the offices of the Ohio Secretary of State, the Ohio Ethics Commission, and the Ohio Elections Commission, my belief that I had no conflict of interest that would warrant my recusal from considering the City of Brecksville's protest. 3 FURTHER AFFIANT SAYETH NAUGHT. 4 & EBEN O. McNAIR, IV SWORN TO AND SUBSCRIBED before me and in my presence this day of September 2012. MELISSIA S. LOWERY NOTARY PUBLIC ^ STATE OF OHIO Recorded in Cuyahoga County My commiesion expires Dec. 9, 2015 4 Melissia S. LoweM From: Eben O. McNair Sent: Monday, August 20, 2012 10:48 PM To: King, Karen Cc: Melissia S. Lowery Subject: RE: Adv. Ops. issued to Wagar; Cunningham; and Gates Karen- Thank you for your prompt assistance. Eben McNair From: King, Karen [mailto: Karen Kino@ethics state.oh.usl Sent: Monday, August 20, 2012 5:17 PM To: Eben O. McNair Subject: Adv. Ops. issued to Wagar; Cunningham; and Gates Dear Mr. McNair: Thank you for your phone call. The Ethics Commission policy is for staff to provide general information about the Ethics Law and Commission precedent whenever possible. In accordance with that policy, I have attached regarding the Ethics Law.