[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. King v. Cuyahoga Cty. Bd. of Elections, Slip Opinion No. 2023-Ohio-3959.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2023-OHIO-3959

THE STATE EX REL. KING, MAYOR, v. CUYAHOGA COUNTY BOARD OF 

ELECTIONS ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. King v. Cuyahoga Cty. Bd. of Elections, Slip 

Opinion No. 2023-Ohio-3959.]

Elections—Mandamus—Prohibition—Protest procedures under R.C. 

3501.39(A)(1) or (2) were inapplicable to city-charter-amendment and

mayoral-recall issues board of elections placed on ballot—Board did not 

abuse its discretion or disregard applicable law in dismissing relator’s 

protest—Writs denied.

(No. 2023-1322—Submitted October 27, 2023—Decided November 1, 2023.)

IN MANDAMUS, PROCEDENDO, AND PROHIBITION

__________________

Per Curiam.

{¶ 1} For the second time in less than a month, relator, Brandon L. King, 

mayor of East Cleveland, has filed a petition seeking extraordinary relief ordering
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respondents, Cuyahoga County Board of Elections and its individual members 

(collectively, “the board”),1to (1) remove a proposed East Cleveland city-charter 

amendment from the November 7, 2023 general-election ballot and (2) refrain from 

going forward with a special mayoral-recall election on December 5, 2023. On 

October 8, we unanimously denied King’s separate request for a writ of prohibition

seeking the same relief. See State ex rel. King v. Cuyahoga Cty. Bd. of Elections, 

__ Ohio St.3d __, 2023-Ohio-3668, __ N.E.3d __, ¶ 1, 19-22, 24.

{¶ 2} Following our decision in King, King pursued the same relief by 

submitting a written protest to the board. The board dismissed King’s protest for 

lack of jurisdiction. King then filed this expedited election action, seeking 

extraordinary writs to compel the removal of the proposed city-charter amendment 

from the November 7 ballot and to prevent the December 5 special mayoral-recall 

election. We deny the writs.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. East Cleveland Charter Amendment and Recall Issue Submitted to East 

Cleveland Voters

{¶ 3} As we noted in King, the root of the dispute relating to the proposed 

city-charter amendment and the mayoral-recall election lies with Eric Brewer’s 

status as clerk of the East Cleveland City Council. See King at ¶ 2. King does not 

believe that Brewer has been validly appointed clerk of council, and he does not 

recognize Brewer as clerk of council.

{¶ 4} On August 9, 2023, the East Cleveland City Council passed 

Resolution No. 57-23, submitting to East Cleveland electors a proposed revision to 

Section 115 of the East Cleveland Charter that would change the mayoral primary 

election from a partisan to a nonpartisan contest. On September 8, Brewer 

submitted to the board a certification that the council had adopted Resolution 

1. The individual respondents are Board Chair Henry F. Curtis IV and board members Inajo Davis 

Chappell, Terence McCafferty, and Lisa Stickan.
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3

No. 57-23 by a four-fifths majority vote for placement on the November 7 generalelection ballot. On September 11, the board voted unanimously to approve the 

proposed city-charter amendment for placement on the November 7 ballot as “Issue 

48.” After receiving correspondence from King’s counsel stating that King had 

vetoed Resolution No. 57-23 and from Brewer disputing the purported veto, the 

board placed the charter amendment on its agenda for reconsideration at its 

September 27 meeting.

{¶ 5} In a letter dated September 20, 2023, Brewer notified King that East 

Cleveland resident Lateek Shabazz had submitted a petition for King’s recall as 

mayor. The petition contained 789 elector signatures, which was more than 25 

percent of the number of voters who voted in the 2021 municipal election, the 

amount required by Section 49 of the city’s charter to place a recall on the ballot. 

On September 26, Brewer filed a notice with the board, stating that King had been 

notified of the sufficiency of the recall petition and that King had not resigned as 

mayor within five days of the notification. Brewer asked the board to “fix the day 

of the recall election of Mayor King” under Section 54 of the city’s charter. The 

board placed the East Cleveland mayoral-recall issue on its September 27 meeting 

agenda.

{¶ 6} At its September 27 meeting, the board voted to take no further action 

regarding its prior decision to place Issue 48 on the November 7 general-election

ballot. Regarding the mayoral-recall issue, the board scheduled a December 5, 

2023 special election.

B. This Court Denies King’s Prior Request for a Writ of Prohibition, and

Voting Begins

{¶ 7} King filed an expedited election action in this court on September 27, 

seeking a writ of prohibition (1) to prevent the board from placing Issue 48 on the 

November 7 general-election ballot and (2) ordering that the December 5 mayoralrecall election not be held. We denied the writ because the board had not exercised
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quasi-judicial power. King, __ Ohio St.3d __, 2023-Ohio-3668, __ N.E.3d __, at 

¶ 19-22, 24. King’s prior challenge to Issue 48 and the mayoral-recall election did 

not involve any written protest under R.C. 3501.39(A)(1) or (2); therefore, the 

board had not been required to hold a quasi-judicial hearing. Id. at ¶ 20, 22; see 

also State ex rel. Wright v. Cuyahoga Cty. Bd. of Elections, 120 Ohio St.3d 92, 

2008-Ohio-5553, 896 N.E.2d 706, ¶ 8-9 (denying writ of prohibition when no 

statute or other law required quasi-judicial hearing on a protest to proposed charter 

amendment’s placement on ballot); State ex rel. Fritz v. Trumbull Cty. Bd. of 

Elections, 165 Ohio St.3d 323, 2021-Ohio-1828, 179 N.E.3d 67, ¶ 10 (denying writ 

of prohibition when no statute or other law required quasi-judicial hearing on a 

protest to scheduling of recall election). King filed a motion for reconsideration, 

which we denied. See __ Ohio St.3d __, 2023-Ohio-3858, __ N.E.3d __.

{¶ 8} Early and absentee voting has commenced for the November 7 

election, and approximately 128 East Cleveland voters had voted in the election as 

of October 23. Regarding the special mayoral-recall election scheduled for 

December 5, ballots have already been mailed under the Uniformed and Overseas 

Citizens Absentee Voting Act, 52 U.S.C. 20302, and early in-person and absentee 

voting will begin on November 7.

C. King Files a Written Protest with the Board

{¶ 9} On October 17, King submitted a written protest to the board, 

challenging (1) the placement of Issue 48 on the November 7, 2023 general-election

ballot and (2) the placement of the mayoral-recall issue on the December 5 specialelection ballot. King demanded a quasi-judicial hearing on the protest, arguing that 

this court’s decision in King entitled him to one.

{¶ 10} With respect to the mayoral-recall election, King protested on three 

grounds. First, King challenged the validity of “approximately 200” signatures on 

the recall petition submitted to Brewer on the basis that they were “forged.” 

Second, King contended that Brewer was not the legitimate clerk of the East 
January Term, 2023

5

Cleveland City Council and that he therefore had no capacity to submit a recall 

petition to the board under the East Cleveland Charter. Third, King argued that he 

had not been given sufficient notice of the mayoral-recall issue to provide a 

meaningful opportunity to challenge the issue.

{¶ 11} With respect to Issue 48, King protested its placement on the ballot 

on three grounds. King argued that he had not been given sufficient notice to 

challenge the issue before the board. King also contended that Resolution No. 57-

23, which submitted the proposed charter amendment to East Cleveland voters, was 

procedurally defective because it was not submitted to him or East Cleveland’s law 

director for review before its passage. Finally, King contended—as he had done at 

the board’s September 27 meeting—that he had vetoed the resolution.

{¶ 12} At its October 18 meeting, the board voted to dismiss King’s protest 

for lack of jurisdiction. In a letter to King’s counsel, counsel for the board 

explained that R.C. 3501.39(A)(1) and (2), which King purported to invoke, were 

not applicable to the charter-amendment or mayoral-recall issues placed on the 

ballot.

D. King Files This Action

{¶ 13} Later on October 18, King filed this action against the board and its 

members, seeking writs of mandamus, procedendo, and prohibition. King’s 

petition alleges that the board’s dismissal of his protest was “in clear derision of 

this Court’s ruling” in King, __ Ohio St.3d __, 2023-Ohio-3668, __ N.E.3d __,

which, according to King, entitles him to a protest hearing under 

R.C. 3501.39(A)(1) or (2). As he argued in King, King alleges that the board has 

allowed Brewer to submit matters for the ballot despite his not being the legitimate 

clerk of council. See id. at ¶ 15. King further alleges that the board has 

“abdicat[ed]” its responsibility to determine what should be placed on the ballot 

and that it is “continuing to be complicit” in Brewer’s acting as clerk of council. 

He seeks extraordinary writs ordering the board to (1) remove Issue 48 from the 
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November 7, 2023 general-election ballot and (2) decertify the mayoral-recall 

petition and cancel the December 5 recall election. Because of the proximity of the 

November 7 election, we set an expedited schedule for the board to answer the 

petition and for the parties to submit evidence and merit briefs. See 171 Ohio St.3d 

1468, 2023-Ohio-3788, __ N.E.3d __. The matter is now ripe for decision.

II. ANALYSIS

{¶ 14} The gravamen of King’s claims in this case is that the board 

improperly dismissed his written protest without conducting a hearing. In denying 

prohibition relief in King, we noted that King had not filed a written protest related 

to either the charter-amendment issue or the mayoral-recall election under 

R.C. 3501.39. King at ¶ 20-22. Accordingly, the board had not been required to 

hold a quasi-judicial hearing before deciding to keep Issue 48 on the November 7 

ballot or to submit the mayoral-recall issue at a special election on December 5. Id.

at ¶ 24. King interprets this court’s rationale in King to mean that he was entitled 

to a hearing upon filing his protest with the board. King is wrong.

A. Mandamus

{¶ 15} King asks for a writ of mandamus or, alternatively, a writ of 

prohibition ordering the board to remove Issue 48 from the November 7, 2023

general-election ballot and the mayoral-recall issue from the December 5 specialelection ballot.2

 To obtain a writ of mandamus, King must establish by clear and 

convincing evidence that (1) he has a clear legal right to the requested relief, (2) the 

board has a clear legal duty to provide that relief, and (3) he does not have an 

2. King’s petition pleaded claims for relief in prohibition (Count One), mandamus (Count Two), 

and Procedendo (Count Three). In his merit brief, however, King limits his requested relief to a 

writ of mandamus or, alternatively, a writ of prohibition. Accordingly, we summarily deny the writ 

of procedendo. See State ex rel. Howard v. Watson, __ Ohio St.3d __, 2023-Ohio-3399, __ N.E.3d 

__, ¶ 40 (denying writ regarding claims for which the relator was no longer seeking relief); see also 

State ex rel. Ohio Gen. Assembly v. Brunner, 114 Ohio St.3d 386, 2007-Ohio-3780, 872 N.E.2d 

912, ¶ 26, fn. 4 (there was no need to address request for writ that was raised in complaint but not 

specifically argued in merit briefs).
January Term, 2023

7

adequate remedy in the ordinary course of the law. See State ex rel. Linnabary v. 

Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13. As for the third 

element, King lacks an adequate remedy in the ordinary course of the law due to 

the proximity of both the November 7 general election and the December 5 special 

mayoral-recall election. King at ¶ 17.

{¶ 16} The first two elements of King’s mandamus claim require us to 

determine whether the board engaged in fraud, corruption, or an abuse of discretion 

or acted in clear disregard of applicable law in dismissing King’s protest. See 

Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 

778 N.E.2d 32, ¶ 11. Though King says the board is complicit in Brewer’s

usurpation of the office of clerk of the East Cleveland City Council, hints that the 

board is facilitating the effort to oust him as mayor, and accuses the board of “an 

abuse of discretion that borders on outright fraud,” he does not present any evidence 

of fraud or corruption. Rather, King seems to argue that the board’s decision was 

so erroneous that it must be deemed the result of fraud. Accordingly, we have no

evidentiary basis on which to conclude that the board engaged in fraud or 

corruption. Thus, the relevant inquiry becomes whether the board abused its 

discretion or disregarded applicable law in dismissing King’s protest.

{¶ 17} King argues that he was entitled to a protest hearing under 

R.C. 3501.39(A)(1) or (2) upon filing his written protest with the board. R.C. 

3501.39 states:

(A) The * * * board of elections shall accept any petition 

described in section 3501.38 of the Revised Code unless one of the 

following occurs:

(1) A written protest against the petition or candidacy, 

naming specific objections, is filed, a hearing is held, and a 

determination is made by the election officials with whom the 
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protest is filed that the petition is invalid, in accordance with any 

section of the Revised Code providing a protest procedure.

(2) A written protest against the petition or candidacy, 

naming specific objections, is filed, a hearing is held, and a 

determination is made by the election officials with whom the 

protest is filed that the petition violates any requirement established 

by law.

(Emphasis added.)

{¶ 18} The board did not abuse its discretion or disregard applicable law in 

dismissing King’s protest, because R.C. 3501.39 is inapplicable here. The protest 

procedure contemplated in R.C. 3501.39 applies to petitions described in 

R.C. 3501.38, namely, “declarations of candidacy, nominating petitions, or other 

petitions presented to * * * a board of elections * * * for the purpose of becoming 

a candidate for any nomination or office or for the holding of an election on any 

issue.” R.C. 3501.38. When a protest does not involve a petition or candidacy 

described in R.C. 3501.38, the board is not required to conduct a quasi-judicial

hearing on the protest. See Wright, 120 Ohio St.3d 92, 2008-Ohio-5553, 896 

N.E.2d 706, at ¶ 9.

{¶ 19} Neither the city-charter-amendment issue nor the mayoral-recall 

issue was presented to the board through a petition described in R.C. 3501.38. The 

board placed the charter-amendment issue on the ballot after it received the city 

council’s resolution proposing the amendment under Section 94 of the East 

Cleveland Charter. As we held in King, __ Ohio St.3d __, 2023-Ohio-3668, __ 

N.E.3d __, at ¶ 20, that process did not trigger any obligation for the board to 

conduct a quasi-judicial hearing under R.C. 3501.39(A)(1) or (2).

{¶ 20} As for the mayoral-recall issue, the board scheduled a recall election 

under Section 54 of the East Cleveland Charter after Brewer notified the board that 
January Term, 2023

9

a sufficient petition to recall King as mayor had been filed under Section 53 of the 

city charter. That process did not trigger any obligation on the board’s part to 

conduct a quasi-judicial hearing under R.C. 3501.39(A)(1) or (2). See Fritz, 165 

Ohio St.3d 323, 2021-Ohio-1828, 179 N.E.3d 67, at ¶ 10 (quasi-judicial hearing 

not required under R.C. 3501.39(A) when protest arose from city council’s vote to 

schedule a recall election). The fact that King purported to protest the validity of 

the signatures on the recall petition submitted to Brewer does not change the result. 

As this court explained last year after King challenged a prior petition for his recall 

as mayor, the board “has no authority to assess the validity of a recall petition” 

under the East Cleveland Charter, State ex rel. King v. Cuyahoga Cty. Bd. of 

Elections, 170 Ohio St.3d 42, 2022-Ohio-3613, 208 N.E.3d 787, ¶ 32. Rather, 

under the charter, the clerk of council must certify whether at least 25 percent of 

the voters who voted in the last regular municipal election of officers signed the 

petition. Id., citing East Cleveland Charter Section 53. And once the clerk of 

council provides that certification, “the charter gives the board no discretion: the 

board ‘shall forthwith order and fix a day for holding a recall election.’ ” 

(Emphasis sic.) Id., quoting East Cleveland Charter, Section 54. Thus, under the 

recall process of the East Cleveland Charter, the board has no role in reviewing the 

validity of a recall petition. Accordingly, here, the board did not abuse its discretion 

or disregard applicable law in declining to hold a hearing on King’s protest, which 

was outside the purview of R.C. 3501.38. See Wright at ¶ 9.

{¶ 21} King also contends that the board abused its discretion in this case 

because, according to him, the board previously held a hearing on a protest to a 

recall petition by a Berea City Council member and Berea’s charter has a recall 

procedure similar to East Cleveland’s. He also submits that the cities of Westlake, 

Brook Park, and Warrensville Heights have similar charter provisions governing 

recall procedure but that the board has entertained protests involving those cities. 

King has provided no evidence in support of these factual assertions. But even if 
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he had provided such evidence, the board’s decisions to conduct protest hearings in 

other cases are not relevant to whether the board abused its discretion here. A board 

of elections does not abuse its discretion by declining to hold a protest hearing when 

the protestor has no statutory right to a hearing. See State ex rel. Nauth v. Dirham, 

161 Ohio St.3d 365, 2020-Ohio-4208, 163 N.E.3d 526, ¶ 23-24.3

{¶ 22} For these reasons, King is not entitled to relief in mandamus.

B. Prohibition

{¶ 23} King’s alternative request for a writ of prohibition is also without 

merit. As this court explained in denying a writ of prohibition in King, __ Ohio 

St.3d __, 2023-Ohio-3668, __ N.E.3d __, “ ‘extraordinary relief in prohibition is 

not available when there is no statute or other law requiring a board of elections to 

conduct a quasi-judicial hearing on a protest,’ ” (emphasis added in King) id. at 

¶ 18, quoting Fritz, 165 Ohio St.3d 323, 2021-Ohio-1828, 179 N.E.3d 67, at ¶ 10; 

see also State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections, 90 Ohio St.3d 

238, 242, 736 N.E.2d 893 (2000). For the reasons stated above, the board was not 

required to hold a quasi-judicial hearing on King’s October 17 protest. King is 

therefore not entitled to a writ of prohibition.

III. CONCLUSION

{¶ 24} The statutory protest procedure that King sought to invoke is not 

applicable to the charter-amendment or mayoral-recall issues that the board placed 

on the ballot. Therefore, the board did not abuse its discretion or disregard 

3. King also argues that in State ex rel. Stevenson v. King, 169 Ohio St.3d 61, 2022-Ohio-3093, 201 

N.E.3d 873, and State ex rel. Richardson v. Gowdy, __ Ohio St.3d __, 2023-Ohio-976, __ N.E.3d 

__, the board had “allowed recall protest hearings, [which] makes the current board position of not 

allowing a protest hearing as to [King] even more untenable.” King’s premise is incorrect: neither 

Stevenson nor Richardson concerned the holding of a protest hearing—much less a protest hearing 

related to a recall petition. Stevenson was a public-records mandamus case in which the thenpresident of the East Cleveland City Council sought to compel King and the city finance director to 

produce records related to public expenditures. Id. at ¶ 1, 3. And Richardson was a mandamus case 

in which the relator sought to compel the city council president to appoint a new clerk of council to 

perform the recall-petition duties specified in the city’s charter. Richardson at ¶ 1.
January Term, 2023

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applicable law in dismissing King’s protest. We therefore deny the requested writs. 

By so holding, we need not address the board’s argument that this action is barred 

by the doctrine of laches. See State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 

172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 57.

Writs denied.

KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER, 

and DETERS, JJ., concur.

_________________

Willa M. Hemmons, East Cleveland Law Director, for relator.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mark

R. Musson, Assistant Prosecuting Attorney, for respondents.

_________________