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

ex rel. Miller v. Hamilton Cty. Bd. of Elections, Slip Opinion No. 2021-Ohio-831.] 

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. 2021-OHIO-831

THE STATE EX REL. MILLER v. HAMILTON 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. Miller v. Hamilton Cty. Bd. of Elections, Slip 

Opinion No. 2021-Ohio-831.] 

Elections—Prohibition—Writ of prohibition sought to prevent board of elections 

from placing mayoral candidate’s name on the May 4, 2021 primaryelection ballot—Relator failed to show that the board abused its discretion 

or clearly disregarded applicable law by accepting candidate’s nominating 

petitions with circulator statements that were not in the form of sworn 

affidavits but did substantially comply with the nominating-petition form 

prescribed by the city charter—Writ denied. 

(No. 2021-0274—Submitted March 12, 2021—Decided March 18, 2021.) 

IN PROHIBITION. 

__________________ 

Per Curiam.
SUPREME COURT OF OHIO

2

{¶ 1} Relator, Mark W. Miller, seeks a writ of prohibition barring 

respondents Hamilton County Board of Elections and its members1

 from placing 

the name of respondent Aftab Pureval on the ballot as a candidate for mayor of 

Cincinnati in the May 4, 2021 nonpartisan primary election. Miller claims the 

board abused its discretion and clearly disregarded applicable law by denying his 

protest of Pureval’s candidacy, because Pureval’s part-petitions did not include 

sworn affidavits of the petition circulators, which Miller claims the Cincinnati City 

Charter requires. Respondents and amicus curiae, the city of Cincinnati, counter 

that when all applicable sections of the charter are considered, Pureval’s petition 

met the requirements. We agree, and we therefore deny the writ. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

{¶ 2} The Cincinnati City Charter provides that “candidates for mayor shall 

be determined at a nonpartisan primary election to be held on the first Tuesday after 

the first Monday in May * * *.” Article IX, Section 1a, Cincinnati City Charter. 

To be placed on the primary-election ballot, a mayoral candidate must submit a 

petition to the board of elections. Article IX, Section 2, Cincinnati City Charter. 

Pureval submitted his nominating petition, consisting of 76 part-petitions, to the 

board on February 10, 2021. 

{¶ 3} On February 24, the board received from Miller, a registered elector 

in the city of Cincinnati, a written protest of Pureval’s petition under R.C. 

3501.39(A). Miller’s protest letter alleged that under the Cincinnati City Charter, 

circulator statements on part-petitions must be by sworn affidavit. The letter 

claimed that Pureval’s part-petitions contained only unsworn circulator statements 

and that the board should therefore reject his petition. On February 24, the board 

set a protest hearing for March 2. 

 

1. The respondent board members are Gwen L. McFarlin, Joseph L. Mallory, Charles H. Gerhardt 

III, and Alex M. Triantafilou. 
January Term, 2021 

3

{¶ 4} At the hearing, the board heard arguments from counsel for Miller and 

counsel for Pureval. The latter argued that the Cincinnati City Charter prescribes a 

form of petition that Pureval’s part-petitions complied with; that under R.C. 

3501.38(L), Pureval’s petition could not be rejected because he obtained his 

petition forms from the board within 90 days of the filing deadline; and that all of 

the other mayoral candidates had used the same forms. These last two claims were 

based on unsworn factual assertions made by Pureval’s attorney.

{¶ 5} The board’s counsel then advised that Pureval needed only to 

“substantially compl[y]” with the charter and that his petitions (as well as those of 

the other mayoral candidates) did substantially comply. The board voted 

unanimously to deny the protest, without comment. The board then certified 

Pureval and five other mayoral candidates to the ballot. 

{¶ 6} Miller filed this prohibition action on March 3. We ordered expedited 

briefing, see __ Ohio St.3d __, 2021-Ohio-574, __ N.E.3d __, which is now 

complete. The city of Cincinnati filed an amicus curiae brief in support of the 

board. 

II. ANALYSIS

A. Threshold Issues 

{¶ 7} Pureval asserts four threshold arguments. We reject all four. 

1. S.Ct.Prac.R. 12.02’s Affidavit Requirements 

{¶ 8} Pureval first argues that we must dismiss the cause because the

affidavit accompanying the complaint does not comply with S.Ct.Prac.R. 12.02(B), 

which states that a complaint in an original action “shall be supported by an 

affidavit specifying the details of the claim,” S.Ct.Prac.R. 12.02(B)(1). The 

affidavit “shall be made on personal knowledge, setting forth facts admissible in 

evidence, and showing affirmatively that the affiant is competent to testify to all 

matters stated in the affidavit.” S.Ct.Prac.R. 12.02(B)(2). “We have routinely 

dismissed original actions, other than habeas corpus, that were not supported by an 
SUPREME COURT OF OHIO

4

affidavit expressly stating that the facts in the complaint were based on the affiant’s 

personal knowledge.” State ex rel. Hackworth v. Hughes, 97 Ohio St.3d 110, 2002-

Ohio-5334, 776 N.E.2d 1050, ¶ 24. 

{¶ 9} Miller’s complaint was accompanied by an affidavit in which his

attorney, Curt C. Hartman, declares that Hartman “has personal knowledge of the 

factual allegations above and such allegations are true and accurate.” Pureval 

argues that the affidavit is insufficient because it is devoid of specific details or 

admissible facts and contains no information establishing that Hartman is 

competent to testify to the matters alleged in the complaint. 

{¶ 10} We rejected a similar argument in Wellington v. Mahoning Cty. Bd. 

of Elections, 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d 420. In that case, 

the relator’s affidavit “state[d] that he ha[d] ‘reviewed the facts contained in the 

foregoing Petition for Writ of Prohibition, and affirm [sic] that they are accurate 

based on my personal knowledge.’ ” Id. at ¶ 16. We reasoned, 

By specifying in his affidavit that he swore to the accuracy 

of the facts in the petition and stating that those facts are based on 

his personal knowledge, Sheriff Wellington satisfied the rule 

because his petition—as verified by his affidavit—specified the

details of his claim, set forth facts admissible in evidence, and 

affirmatively established that he is competent to testify to the 

material facts—i.e., he filed a protest challenging Aey’s candidacy 

for sheriff, and the board denied the protest at the conclusion of a 

hearing at which he testified and presented evidence. He did not 

need to repeat these same statements in his affidavit, which already 

verified the truth of these statements. 

Id. at ¶ 19. 
January Term, 2021 

5

{¶ 11} Similarly, here, the complaint specifies the details of the claim, sets 

forth admissible facts, and establishes Hartman’s competency to testify to the 

material facts, as he was present for and involved in the protest proceedings. We 

will not dismiss the complaint for failure to comply with S.Ct.Prac.R. 12.02. 

2. Laches 

{¶ 12} Pureval next argues that Miller’s claim is barred by the doctrine of 

laches. “The elements of laches are (1) unreasonable delay or lapse of time in 

asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or 

constructive, of the injury or wrong, and (4) prejudice to the other party.” State ex 

rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 145, 656 N.E.2d 

1277 (1995). 

{¶ 13} Miller filed his complaint one day after the board rejected his protest. 

Pureval does not, however, challenge Miller’s delay in the context of this case. 

Rather, he asserts that Miller’s true challenge is not to Pureval’s candidacy but to 

the board’s interpretation of the Cincinnati City Charter, which he claims has been 

consistent since 2001. He therefore argues that Miller unreasonably delayed for 20 

years, without excuse—causing prejudice to Pureval by making this case an 

expedited election matter. 

{¶ 14} We reject this argument, which ignores such questions as whether 

Miller had knowledge of the board’s longstanding interpretation or was eligible to 

challenge it before he protested Pureval’s petition. Moreover, despite the potential 

for broader implications, the subject matter of this prohibition action is the board’s 

rejection of Pureval’s 2021 mayoral petitions, see R.C. 3501.39(A). Because Miller 

filed this action one day after the board rejected his protest, we find that laches does 

not bar his claim. 

3. Unclean Hands 

{¶ 15} Pureval next argues that Miller’s claim is barred by the doctrine of 

unclean hands. Pureval argues that Miller has, without explanation, singled him 
SUPREME COURT OF OHIO

6

out by challenging his petition but not those of the other mayoral candidates who 

used the same forms. He argues that this calls Miller’s motives into question and 

amounts to discriminatory targeting. 

{¶ 16} Pureval cites no authority for applying the equitable doctrine of 

unclean hands in this prohibition action. We have, however, occasionally 

recognized its potential applicability in mandamus actions. See State ex rel. 

Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, 

¶ 53, quoting State ex rel. Albright v. Haber, 139 Ohio St. 551, 553, 41 N.E.2d 247 

(1942) (“On rare occasions, we have recognized that ‘while mandamus is 

considered a legal remedy, equitable principles often govern its issuance, and it 

may be denied to those who do not come before the court with clean hands’ ”). 

{¶ 17} In any event, “the doctrine of unclean hands requires a showing that 

[the relator] engaged in reprehensible conduct, not merely negligent conduct,” State 

ex rel. Columbus Coalition for Responsive Govt. v. Blevins, 140 Ohio St.3d 294, 

2014-Ohio-3745, 17 N.E.3d 578, ¶ 12, yet the record here is undeveloped on the 

question of Miller’s motivations. We find that the doctrine of unclean hands does 

not bar Miller’s claim. 

4. Failure to Join Necessary Parties under Civ.R. 19(A) 

{¶ 18} Finally, Pureval argues that we must deny Miller’s requested relief 

for failure to join necessary parties under Civ.R. 19(A). He argues that the equalprotection clauses of the Ohio and United States Constitutions would prohibit the 

selective enforcement of the Cincinnati City Charter, instead requiring the rejection 

of all mayoral petitions if his is rejected. He therefore argues that complete relief 

cannot be accorded in this action without joinder of the other five mayoral 

candidates. 

{¶ 19} However, Pureval’s equal-protection argument is undeveloped, and 

he has not established that this court (as opposed to the board) would be able—let 

alone required—to reject petitions that were not protested before the board under 
January Term, 2021 

7

R.C. 3501.39(A). As the scope of this prohibition action is limited to whether the 

board abused its discretion by rejecting the protest to Pureval’s petition, we will not 

dismiss the complaint for failure to join parties necessary to accord complete relief. 

B. Elements of the Prohibition Claim 

{¶ 20} To be entitled to a writ of prohibition, Miller must prove that the 

board exercised quasi-judicial power, that it lacked the authority to do so, and that 

he lacks an adequate remedy in the ordinary course of the law. State ex rel. Keith 

v. Lawrence Cty. Bd. of Elections, 159 Ohio St.3d 128, 2019-Ohio-4766, 149 

N.E.3d 449, ¶ 5. Miller lacks an adequate remedy due to the proximity of the May 

4 election. State ex rel. Tam O’Shanter Co. v. Stark Cty. Bd. of Elections, 151 Ohio 

St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 15. 

1. Quasi-Judicial Power 

{¶ 21} “Quasi-judicial authority is the power to hear and determine 

controversies between the public and individuals that require a hearing resembling 

a judicial trial.” State ex rel. Wright v. Ohio Bur. of Motor Vehicles, 87 Ohio St.3d 

184, 186, 718 N.E.2d 908 (1999). Miller argues that the board exercised quasijudicial power by hearing and rejecting his protest, which was brought pursuant to 

R.C. 3501.39(A), noting our observation that “R.C. 3501.39(A) requires a board of 

elections to conduct a quasi-judicial hearing on a petition protest,” State ex rel. 

Barney v. Union Cty. Bd. of Elections, 159 Ohio St.3d 50, 2019-Ohio-4277, 147 

N.E.3d 595, ¶ 12. 

{¶ 22} The board conceded in its answer and acknowledged at the protest 

hearing that it was exercising quasi-judicial power. However, Pureval argues that 

the board did not exercise quasi-judicial power because it did not consider sworn 

testimony at the hearing. And in its brief, the board appears to hedge on its previous 

admission. On the one hand, it cites our statement that “[a] board of elections 

exercises quasi-judicial power when it ‘conducts a protest hearing pursuant to 

statute,’ ” Keith at ¶ 6, quoting State ex rel. Save Your Courthouse Commt. v. 
SUPREME COURT OF OHIO

8

Medina, 157 Ohio St.3d 423, 2019-Ohio-3737, 137 N.E.3d 1118, ¶ 29. On the 

other hand, the board allows that quasi-judicial proceedings “generally involve the 

taking of sworn testimony.” 

{¶ 23} Our recent opinions have included statements such as, “A board of 

elections exercises quasi-judicial authority when it makes a decision regarding a 

protest after a mandatory hearing that includes sworn testimony.” E.g., Barney at 

¶ 12; see also State ex rel. Meyer v. Warren Cty. Bd. of Elections, ___ Ohio St.3d 

___, 2020-Ohio-4863, ___ N.E.3d ___, ¶ 9, citing Barney at ¶ 12. And in Save 

Your Courthouse, we stated, 

When a public entity takes official action but does not 

conduct proceedings akin to a judicial trial, prohibition will not 

issue. For example, a board of elections did not exercise quasijudicial authority when it denied an election protest, because it did 

not consider sworn testimony, receive documents into evidence, or 

in any other fashion “conduct a hearing sufficiently resembling a 

judicial trial.” 

 

Id. at ¶ 27, quoting State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections, 90 

Ohio St.3d 238, 242, 736 N.E.2d 893 (2000). 

{¶ 24} However, we took care to clarify in Baldzicki that the protest at issue 

was not brought pursuant to any statute, distinguishing it from “statutory protests 

requiring quasi-judicial proceedings.” Baldzicki at 242. And as the statement 

quoted above indicates, we have acknowledged that sworn testimony is one—but 

not the only—indicator that a hearing resembled a judicial trial. 

{¶ 25} As we have noted on many occasions, R.C. 3501.39(A)(2) requires

the board to conduct a quasi-judicial hearing. E.g., State ex rel. Wright v. Cuyahoga 

Cty. Bd. of Elections, 120 Ohio St.3d 92, 2008-Ohio-5553, 896 N.E.2d 706, ¶ 9 
January Term, 2021 

9

(“This is not a case involving written protests against petitions or candidacies, 

which would have required quasi-judicial proceedings. Cf. R.C. 3501.39(A)(1) and 

(2)” [emphasis sic]); State ex rel. Upper Arlington v. Franklin Cty. Bd. of Elections, 

119 Ohio St.3d 478, 2008-Ohio-5093, 895 N.E.2d 177, ¶ 16 (“Here, R.C. 

3501.39(A)(2) required that the board of elections conduct a quasi-judicial hearing 

on relators’ protest”); State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. 

Bd. of Elections, 80 Ohio St.3d 302, 306, 686 N.E.2d 238 (1997) (“a board of 

elections, like a board of revision, is a quasi-judicial body when it considers 

protests”); State ex rel. Harbarger v. Cuyahoga Cty. Bd. of Elections, 75 Ohio St.3d 

44, 45, 661 N.E.2d 699 (1996) (“A protest hearing in election matters is a quasijudicial proceeding”); State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections, 72 

Ohio St.3d 289, 291, 649 N.E.2d 1205 (1995) (“Since R.C. 3501.39 required a 

hearing which in some respects resembled a judicial trial, the board exercised quasijudicial authority in denying Thurn’s protest and deciding to place the proposed 

ordinances on the ballot”). 

{¶ 26} The secretary of state’s Election Official Manual likewise advises 

boards that “[w]hen resolving a protest, a board is acting in a quasi-judicial 

capacity.” Secretary of State Directive 2021-08, Section 1.04, Ohio Election 

Official Manual, at 12-9 available at https://www.sos.state.oh.us/globalassets 

/elections/directives/2021/dir2021-08-ch12.pdf [https://perma.cc/4GUX-4EGM]. 

The secretary’s guidelines for “Acting in a Quasi-Judicial Capacity” advise boards 

to “[p]lace anyone who will provide testimony under oath” and that decisions 

should be “based on evidence provided to the board at the hearing and information 

the board may retain on its own, such as voter registration information.” Secretary 

of State Directive 2021-02, Section 1.03, Ohio Election Official Manual, at 2-32, 

available at https://www.sos.state.oh.us/globalassets/elections/directives/2021/ 

dir2021-02-ch02.pdf [https://perma.cc/7UMB-F588]. 
SUPREME COURT OF OHIO

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{¶ 27} The board was doubtless under an obligation to conduct a quasijudicial hearing. Pureval’s attorney offered factual statements at that hearing. The 

board failed to adhere to the secretary’s directive to place him under oath; however, 

as the attorney pointed out at the hearing, he referred to facts that were documented 

by information retained by the board. We conclude that under these circumstances, 

the board conducted a hearing sufficiently resembling a judicial trial such that it 

was exercising quasi-judicial power. 

2. Lack of Authority 

{¶ 28} The question whether the board lacked authority hinges on whether 

it “acted fraudulently or corruptly, abused its discretion, or clearly disregarded 

applicable law.” State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 

63, 2006-Ohio-1292, 846 N.E.2d 8, ¶ 23. There is no allegation of fraud or 

corruption here. 

{¶ 29} Miller argues that the board abused its discretion and disregarded 

applicable law by denying his protest, because the Cincinnati City Charter requires 

circulator statements on mayoral petitions to be sworn affidavits, yet the statements 

on Pureval’s part-petitions were unsworn statements made on penalty of elections 

falsification. We reject this argument and conclude that the board did not abuse its 

discretion or clearly disregard applicable law, because the charter prescribes a form 

demonstrating what constitutes an affidavit for purposes of the circulator-statement 

requirement and Pureval’s part-petitions substantially complied with the charter’s 

prescribed form. 

{¶ 30} The Cincinnati City Charter sets forth specific requirements for 

mayoral and council elections in the city. With respect to mayoral-candidate 

petitions, the charter states the following: “to each separate [petition] paper there 

shall be attached an affidavit of the circulator thereof stating that each signature 

thereto was made in the circulator’s presence and is the genuine signature of the 
January Term, 2021 

11 

person whose name it purports to be.” Article IX, Section 2, Cincinnati City 

Charter. 

{¶ 31} Miller argues that “affidavit” means a statement sworn before an 

officer authorized to administer oaths, citing Toledo Bar Assn. v. Neller, 102 Ohio 

St.3d 1234, 2004-Ohio-2895, 809 N.E.2d 1152, ¶ 10, and State ex rel. Johnson v. 

Ohio Adult Parole Auth., 95 Ohio St.3d 463, 2002-Ohio-2481, 768 N.E.2d 1176, 

¶ 5. However, those cases were applying provisions of the Ohio Revised Code. 

{¶ 32} The Cincinnati City Charter provides, “[T]he provisions of the 

general election laws of the state shall apply to all such elections except as provision 

is otherwise made by this charter.” (Emphasis added.) Article IX, Section 1, 

Cincinnati City Charter. The charter does not expressly define “affidavit.” 

However, Article IX, Section 3a of the charter sets forth a prescribed form of 

petition for mayoral candidates. Section 3a states that the “form of the nominating 

petition papers shall be substantially as follows,” and the circulator statement of the 

form that follows reads: 

Statement of Circulator 

I, _______ [name of circulator of petition], declare under 

penalty of the election falsification laws of the state of Ohio that I 

am a qualified elector of the city of Cincinnati; that I reside at the 

address appearing below my signature; that this petition paper 

contains _____(number) signatures; that I witnessed the affixing of 

every signature; and that every signature is to the best of my 

knowledge and belief the signature of the person whose signature it 

purports to be. 

Signed: _____ 

Address: _____ 

Date: _____ 
SUPREME COURT OF OHIO

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Article IX, Section 3a, Cincinnati City Charter. The form clearly does not provide 

for a circulator statement in the manner of a sworn affidavit, but rather one that is 

styled after the form set forth in R.C. 3513.261. 

{¶ 33} “[W]hen construing city charters, we apply general rules of statutory 

interpretation.” State ex rel. Harris v. Rubino, 155 Ohio St.3d 123, 2018-Ohio3609, 119 N.E.3d 1238, ¶ 19. One of these rules is that we do not simply consider 

words in isolation, but consider the text as a whole. Vossman v. AirNet Sys., Inc., 

159 Ohio St.3d 529, 2020-Ohio-872, 152 N.E.3d 232, ¶ 14. Pureval, the board, and 

the city all argue that Section 2 and Section 3a must be read in pari materia and that 

when read together, it is clear that Section 3a provides the wording and the form of 

the “affidavit” required by Section 2. We agree. It would be nonsensical to read 

the charter otherwise—for example, as requiring both a sworn affidavit and a nearly 

identical circulator statement made under penalty of elections falsification. Miller 

argues that State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d 472, 764 N.E.2d 971 

(2002), controls this issue. In Ditmars, we held that the Columbus City Charter 

required circulator statements in the form of sworn affidavits. Id. at 474-475. 

However, in Ditmars, the charter did not define “affidavit” or contain a prescribed 

petition form. Id. Because Section 3a of the Cincinnati City Charter includes a

prescribed petition form clarifying the meaning of the affidavit requirement set 

forth in Section 2, we conclude that Ditmars is inapplicable. 

{¶ 34} Pureval’s part-petitions included circulator statements substantially 

in the form prescribed in Section 3a of the Cincinnati City Charter. We therefore 

conclude that the board did not abuse its discretion by rejecting Miller’s protest. 

III. CONCLUSION

{¶ 35} Based on the foregoing, we deny the writ. 

Writ denied. 
January Term, 2021 

13 

O’CONNOR, C.J., and DEWINE, DONNELLY, STEWART, and BRUNNER, JJ., 

concur. 

KENNEDY, J., concurs in judgment only. 

FISCHER, J., dissents. 

_________________ 

The Law Firm of Curt C. Hartman and Curt C. Hartman, for relator. 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and David T. 

Stevenson and Jesse K. Daley, Assistant Prosecuting Attorneys, for respondent 

Hamilton County Board of Elections. 

McTigue & Colombo, L.L.C., Donald J. McTigue, and Derek S. Clinger; 

Katz Teller Brant & Hild, Peter J. O’Shea, and Evan T. Nolan, for respondent Aftab 

Pureval. 

Andrew W. Garth, City Solicitor, Emily Smart Woerner, Deputy City 

Solicitor, and Erica Faaborg, Assistant City Solicitor, urging denial of the writ for 

amicus curiae, city of Cincinnati. 

_________________