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Erick D. Gale

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Erick D. Gale IN THE SUPREME COURT OF OHIO State of Ohio ex rel. Jon A Husted Case No. 2009-1455 Relator, Original Action in Mandamus V. Jennifer L. Brunner, Ohio Secretary of State Respondent. RELATOR'S MOTION FOR PEREMPTORY WRIT Maria J. Armstrong (0038973) Richard Cordray (0038034) Counsel of Record Ohio Attorney General Anne Marie Sferra (0030855) Riehard C. Coglianese (0066830) Jennifer A. Flint (0059587) Assistant Attorney General BRICKER & ECKLER LLP Cotinsel of'Record 100 South Third Street Damian Sikora (0075224) Coluinbus, Oliio 43215 Erick D. Gale (0075723) 1'elephone: (614) 227-2316 30 East Broad Street, 16th Floor Facsimile: (614) 227-2390 Colunibus, Ohio 43215-2400 E-mail: asferranbricker.eom Telephone: (614) 466-2872 E-mail: marmstrongrdbricker.com Facsimile: (614) 728-7592 E-mail: 'iflicltn^bricker.conr E-mail: reotrlianeseC^i>,ac.state.oh.us Counselfor Relator Counsel for Respondent, .Iennifer L. Brunner, Ohio Secretary ofStnte 32686:33v1 IN THE SUPREME COUR'1' OF OHIO State of Ohio ex rel. Case No. 2009-1455 Jon A Husted Relator, Original Action in Mandainus Jennifer L.13runner, Ohio Secretary of State Respondent. RELATOR'S MOTION FOR PEREMPTORY WRIT Jon A. Husted ("Relator") hereby respectfully moves this Coiu-t for a peremptory writ pursuant to Ohio Constitution Art. IV, §2 and R.C. 2731.06. Reasons supporting this motion are included in the attached memorandum. On August 10, 2009, Relator filed a Cotnplaint in Mandamus with this Court seeking to compel Secretary of State Jennifer Brutmer ("Respondent") to issue a decision breaking a tie vote submitted to her by the Montgomery County Board of Elections. On August 11, 2009, Respondent, through her spokesperson, made comments to several media outlets indicating that Respondent's decision to break the tie was nearly complete and had been scheduled to be released on August 10 or August 1 I. Respondent further stated that because the above-captioned Coinplaint was filed, she did not irrtend to release any decision, but rather would allow this Court to rule on the matter. (See attached articles.) Since the date of these public statements, another month has passed and still Respondent has not broken the tie vote. On September 4, 2009, Respondent filed her Answer to the 2 3268633v1 Coinplaint, denying her duty to "suminarily decide" this matter as required by R.C. 3501.1 I(X). (Answer 1190.) Moreover, Respondent admits in her Answer that she unilaterally identified, subpoenaed, and received all of the additional records that she thought were necessary to inake her decision. (Answer Il,[ 49, 51.) Respondent has had all of the documents before her since at least June 8, 2009, when she subrnitted them to the Montgomery County Board of Elections. No new information has been submitted in the three months since that time. Even with this information before her and months to review it, Respondent repeatedly avers in her Answer that still she is "without knowledge or information sufficient" to decide the tie. (See, e.g., Answer ¶ll 6, 27-29.) Clearly, Respondent is unable or unwilling to carry out Irer statutorily mandated duty to brealc a tie subinitted to lier by a eounty board of elections and has publicly pronounoed her reftisal to do so absent an Order by this Court. In addition to being a registered elector whose voting status has been "investigated" through two elections already, Relator is the endorsed candidate of the Ohio Republican Party for Ohio Secretary of State. In light of this endorsement (which Relator received today), witliin a few months Relator will circulate petitions to ntn for statewide office. Those petitions must include his "voting i-esidence" (see R.C. 3513.07) - which is the very issue that has been pending before Respondent. Like any other voter or candidate, Relator has a clear legal right to a sununai-y resolution of the tie presented to Respondent. Yet for Relator, the Responclent has delayed, wavered, and refused to carry out the same statutory duty that she has exercised numerous times before to break other tie votes. To the best of Relator's knowledge, no other tie vote by a Board of Elections has lingered this long. No other candidate, voter, registrant or elector whose residency has been challenged, 3 3z68v33vi questioned or investigated, has been subject to such delay and abuse of authority. Enough is enough. Relator respectfully requests this Court to issue a preemptory writ ordering Respondent to break the tie. Respondent's decision may moot this case in its entirety or narrow the issues this Court must address. Relator urges this Court to order Respondent to irmnediately issue her decision within ttuee business days of the Court's Order. In the alternative, Relator seeks an alternative writ and an expedited briefing schedule for the same reasons as set forth above. Respectfully submitted, Maria J. Armstrong (0038973) Counsel of Record Anne Marie Sfen-a (0030855) Jennifer A. Flint (0059587) BRICKER & ECKLER LLP 100 South Third Street Columbus, Ohio 43215-4291 Telephone: (614) 227-2300 Facsimile: (614) 227-2390 E-mail: [email protected] E-mail: jflint(n?,bricker.com E-mail: [email protected] Aitorneys for Relator, Jon A. LIi, sted 4 3268633v1 CERTIFICATE OF SERVICE I do hereby certify that a true copy of the foregoing document was served this I lth day of September 2009, via email and regular mail upon: Richard C. Coglianese, Assistant Attorney General, 30 East Broad Street, 16th Floor, Columbus, Ohio, 43215-2400. Maria J. Arni'strong (0038973) 5 3268633v1 Copyright 2009 Dayton Newspapers, Inc. Dayton Daily News (Ohio) August 13, 2009 Thursday SECTION: MAIN; Pg. Al LENGTH: 238 words HEADLINE: Husted sues to end residency challenge BYLINE: By Lynn Hulsey Staff Writer BODY: State Sen. Jon Husted, R-Kettering, is asking the Ohio Supreme Court to dismiss a residency challenge against him or to order Ohio Secretary of State Jennifer Brunner to make a decision. Husted, a 2010 candidate for Ohio secretary of state, has said the demands of his job in the State Legislature keep him in Columbus so he sometiines lives with his wife and kids in her Upper Arlington home. But he said his legal residence is in Kettering, where he intends to return when ttis term in public office ends. Husted argues the law allows him to leave his home during his government service without forfeiting his residency for voting purposes. In the lawsuit filed on Tuesday, Aug. 11, Husted said Brunner has taken too long to make a decision on the complaints, which were sent to her after the Montgomery County Board of Elections twice deadlocked along partisan lines first in February and again in June_ Brunner spokesman Patrick Gallaway said Brunner was close to a decision . "Now that he has brought the matter to the Supreme Court, we believe that the high court is the best arbiter of the matter, and we will abide by uny decision reachcd by the court," said Brumter, a Democrat. Husted said it is clear from Brunner'.s remarks that she does not want to tnake a decision. I-Ie wants the court to nile before the upcoming November election. "This has bccn a political charade froin the very beginning, and it is time to end," Husted said. LOAD-DATE: August 14, 2009 Dayton Daily News By Lynn Hulsey, Staff Writer 1:23 PM Wednesday, August 12, 2009 State Sen. Jon Husted, R-Ketterittg, sued Ohio Secretary of State Jennifer Brunner in the Ohio Supreme Court, saying the residency challenge against him should be dismissed. Husted also argued that 13runner liad no right to base a decision on documents she subpoenaed in her investigation oFcomplaints that he does not reside at his 148 Sherbrooke Ave., home and instead lives with his wife and kids in Upper Arlington. "Phe Montgoinery County Board of Elections twice deadloclced on the question, sending it to Brunner to decided. Husted said the decision has taken too long and that a complaint was not properly filed in the first place. Brunner spokesman Patrick Gallaway said Brunner had been close to a decision, which could have been issued today or tomorrow but she will iiot wait for the Supreme Court to act. "I'here are three different provisions of state law that operate toward different outcomes of the matter involving Senator Husted's residency," Brunner said in a written statement. "This case is on of first impression, and we have treated it with great care. We have tried to be paitistakingly fair and give Senator Husted all possible opportunities to provide information." "Now that he has brought the matter to the Supreme Court, we believe that the high court is the best arbiter of the matter, and we will abide by any decision reached by the court.".
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