State ex rel. Spangler v. Board of Elections

Per Curiam. It is well-settled that the decision of a board of elections will not be disturbed absent a showing that the decision constituted an abuse of discretion or clear disregard of applicable law. See State, ex rel. Flynn, v. Bd. of Elections (1955), 164 Ohio St. 193 [57 O.O. 402], paragraph one of the syllabus; State, ex rel. Senn, v. Bd. of Elections (1977), 51 Ohio St. 2d 173, 175 [5 O.O.3d 381]; State, ex rel. Morrison, v. Bd. of Elections (1980), 63 Ohio St. 2d 336, 338-339 [17 O.O.3d 420]. Thus, our review is limited to determining whether respondent’s decision that Lambros was a resident of Brook Park constituted an abuse of discretion or clear disregard of applicable law. R.C. 3503.02 sets forth the rules for determining voter residence and provides, in part: “(D) The place where the family of a married man or woman resides shall be considered to be his or her place of residence; except that when the husband and wife have separated and live apart, the place where he or she resides the length of time required to entitle a person to vote shall be considered to be his or her place of residence.” Under the terms of R.C. 3503.02(D), Lambros’ residence must be considered as being in the city of Fairview Park where his family resides. This statute has not been construed strictly under all circumstances. In State, ex rel. Lakes, v. Bd. of Elections (1954), 161 Ohio St. 341 [53 O.O. 249], this court held that a married man did not lose his voting residence in Mad River Township just because his wife and child moved temporarily to Dayton to obtain schooling for his child who was afflicted with infantile paralysis. Similarly, in Cox v. Union City (1948), 84 Ohio App. 279 [39 O.O. 412], a married man was not denied a voting residence in Union City, Ohio because his wife temporarily lived in Union City, Indiana due to a housing shortage, having the intention of joining her husband as soon as accommodations could be located. The exceptions defined in these cases, however, do not support respondent’s decision herein. In both of these cases, the families at issue were residing elsewhere on a temporary basis, with the intention of returning. In the case at bar, there was no evidence that the residence of Lambros’ family in Fairview Park was temporary or that they ever intended to live in the city of Brook Park. All the evidence relevant to a determination under R.C. 3503.02(D) and cases construing that section support the conclusion that Lambros is a resi [22] dent of the city of Fairview Park. We therefore conclude that respondent’s decision dismissing relator’s protest constituted an abuse of discretion and was entered without regard to R.C. 3503.02(D). Accordingly, we hereby allow a writ of mandamus to compel respondent to strike the name of Arthur P. Lambros from the ballot for the municipal election to be held in the city of Book Park on November 8, 1983. Writ allowed. Celebrezze, C.J., Sweeney, C. Brown and J. P. Celebrezze, JJ., concur. W. Brown, Locher and Holmes, JJ., dissent.