HENSCHEN v. OHIO ELECTIONS COMMISSION (2024)

DECISION

{¶ 1} Plaintiff-appellant, Bud Henschen, appeals the judgment of the Franklin County Court of Common Pleas, which affirmed an order of defendant-appellee, the Ohio Elections Commission (“commission”), wherein Henschen was found to be in violation of R.C. 3517.13. For the following reasons, we reverse the trial court's judgment.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} In 2017, Henschen, as a resident and business owner in the Bowling Green City School District, became involved in opposing local school levy proposals as he was concerned about increasing property taxes that he believed the community could not afford. (July 8, 2021 Henschen Aff. at ¶ 3.) Henschen used personal funds to anonymously send a mailing to all residences in the school district. (Henschen Aff. at ¶ 6.) However, after he sent the mailing, he realized there was an incorrect figure. In order to correct the error, he wrote an editorial in the local newspaper identifying himself as the author of the letter and explaining the mistake. (Henschen Aff. at ¶ 6.)

{¶ 3} Around the time he sent the mailing, Henschen was told by the director of the Wood County Board of Elections that he did not need to file campaign finance reports because Henschen was paying for the mailing with personal funds and not in coordination with a political action committee (“PAC”) or other individuals. (Henschen Aff. at ¶ 4.) Henschen attested that after the election, he did not hear from the board of elections indicating that he needed to file a report for using his own funds and therefore assumed the instruction from the director was correct. (Henschen Aff. at ¶ 7.)

{¶ 4} In 2018, Henschen opposed another school levy and paid for various newspaper ads and billboards. A local newspaper printed an article which identified Henschen and other individuals who were members of a PAC as the entities behind the ads and billboards in opposition to the levy. (Henschen Aff. at ¶ 9.) Following the publication of that article, Henschen and the individuals who contributed to the PAC received harassing and threatening messages. Henschen received one message that claimed he was “Asshole of the Year,” and “[a]fter you are dead and buried, most people will give you all the respect you deserve. They will visit your grave to piss on it.” (Henschen Aff., Ex. B.)

{¶ 5} In 2019, Henschen wanted to oppose yet another school levy that was on the ballot, but he wished to do so anonymously to avoid threats and harassment like he had experienced the year prior. (Henschen Aff. at ¶ 13.) After the 2019 election, however, the director of the board of elections informed Henschen that, contrary to his prior comments, Henschen did in fact need to file a statement disclosing his expenditures. (Henschen Aff. at ¶ 14.) Henschen retained counsel and filed with the local board of elections Form 30-E, in which he identified the expenditures he had made in relation to the ballot issue for the 2019 election. Henschen listed “Individual-DBA Bowling Green Levy Facts” in the pertinent field for his name and wrote “anonymity protected by 1st amendment” in the field for his street address. (Henschen Aff., Ex. C.) Henschen's attorney included with the form a cover letter which stated that counsel submitted the form on behalf of a client who wished to remain anonymous, cited McIntyre v. Ohio Elections Comm., 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), and invited the board of elections to contact counsel if it had questions.

{¶ 6} In 2020, Henschen again made independent expenditures in opposition to a school levy and reported those expenditures on Form 30-E anonymously as an “Unnamed Individual” through his attorney with a similar cover letter. (Henschen Aff., Ex. D.)

{¶ 7} Instead of contacting Henschen's attorney, who is listed on the cover letter attached to his Form 30-E, the board of elections asked the Wood County Prosecuting Attorney's office to conduct an investigation to uncover the identity of the unnamed individuals on the Form 30-E filings. The investigation, which included subpoenas to the advertising company Henschen used for billboards, led the Prosecuting Attorney's office to conclude that Henschen was in fact the anonymous filer of the two Form 30-E filings.

{¶ 8} On July 20, 2020, the board of elections referred Henschen's 2019 and 2020 Form 30-E filings to the commission.

{¶ 9} On October 9, 2020, after the board of elections publicly revealed that he was the individual who made the expenditures, Henschen filed amended Form 30-E statements for the 2019 and 2020 elections that included his name and address.

{¶ 10} On April 22, 2021, the commission found that Henschen had committed a violation of R.C. 3517.13(G)(1), which states, “No person shall knowingly conceal or misrepresent contributions given or received, expenditures made, or any other information required to be reported by a provision in sections 3516.08 to 3517.13 of the Revised Code,” but the commission did not impose a fine or refer the matter for further prosecution.

{¶ 11} Henschen appealed the commission's decision to the Franklin County Court of Common Pleas pursuant to R.C. 119.12. Henschen argued that, under R.C. 3517.11(B)(3)(a), the local board of elections should have conditionally accepted his reports, informed him that the reports were incomplete or inaccurate, and given him an opportunity to amend his reports prior to referring the matter to the commission. He also argued that the disclosure requirement in R.C. 3517.105(C)(2)(b) unconstitutionally burdens his First Amendment right to anonymous political speech, citing McIntyre and Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). Henschen also argued that R.C. 3715.11 violates the Equal Protection Clauses of the United States and Ohio constitutions because Ohio's campaign finance law enforcement scheme allows counties to determine whether to allow filers to cure a defect in independent expenditure statements.

{¶ 12} The commission responded by arguing that the trial court lacked subject-matter jurisdiction because Henschen was not an “adversely affected” party, as the commission did not impose a fine on Henschen and did not refer the matter for prosecution. (Brief of Appellee at 6.) The commission also argued that R.C. 3517.11(C)(2) provides that an incomplete or inaccurate statement is defined as a statement that fails to include at least 90 percent of the total expenditures or disbursements during a reporting period, and that it does not include the failure to provide a filer's name or address. The commission further argued that a local board of elections is not required to wait until a filer has amended a statement but, rather, that R.C. 3517.11(C)(1) requires officials to promptly file a complaint with the commission. The commission also urged the trial court that it did not need to address Henschen's constitutional claims unless absolutely necessary, and that Henschen's equal protection and First Amendment claims fail, whether considered as facial or as applied challenges.

{¶ 13} On July 24, 2023, the trial court affirmed the commission's decision. The trial court found that the commission's order was supported by reliable, probative, and substantial evidence and was in accordance with the law. The trial court rejected the commission's argument that Henschen was not an adversely affected party and found that the trial court did in fact have subject-matter jurisdiction to consider the appeal. (July 24, 2023 Decision & Entry Affirming Appellee's Order at 21.) The trial court also rejected Henschen's argument that he should have had an opportunity to cure the deficiencies in his Form 30-E statements under R.C. 3517.11(B)(3)(a) because his statement was incomplete or inaccurate. The trial court looked to R.C. 3517.11(C)(2), which defined an incomplete or inaccurate statement as a statement that “fails to disclose substantially all contributions, gifts, or donations” or “fails to disclose at least ninety per cent” of the expenditures or disbursements made during the reporting period. The trial court reasoned that Henschen did not fail to disclose at least 90 percent of his expenditures or disbursements, but rather he failed to provide his name and address. (July 24, 2023 Decision & Entry Affirming Appellee's Order at 27.) The trial court found that it need not address Henschen's constitutional challenges because the trial court determined it was not necessary to the resolution of the matter. (July 24, 2023 Decision & Entry Affirming Appellee's Order at 28.)

{¶ 14} On August 23, 2023, Henschen filed this appeal.

II. ASSIGNMENTS OF ERROR

{¶ 15} Henschen argues the following assignments of error:

(1) The Trial Court erred in holding that R.C. 3517.11(C)(2) limits the rights of a campaign finance filer to amend an initially incomplete report.

(2) The Trial Court misapplied the principle of constitutional avoidance after deciding that the Ohio Elections Commission correctly applied the statutory provision at issue.

(3) The compelled disclosure requirement in R.C. 3517.105(C)(2)(b) for individuals who act alone and use their personal funds to make independent expenditures in support of or opposition to a ballot issue unconstitutionally burdens the rights to Free Speech in the United States and Ohio Constitutions.

III. STANDARD OF REVIEW

{¶ 16} In an administrative appeal, pursuant to R.C. 119.12, the common pleas court must consider the entire record to determine whether reliable, probative, and substantial evidence supports the agency's order and whether the order is in accordance with law. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110-11, 407 N.E.2d 1265 (1980). See Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992) (defining reliable, probative, and substantial evidence). The common pleas court's “review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court ‘must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.’ ” (Emphasis omitted.) Lies v. Ohio Veterinary Med. Bd., 2 Ohio App.3d 204, 207, 441 N.E.2d 584 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280, 131 N.E.2d 390 (1955). The common pleas court “must give due deference to the administrative resolution of evidentiary conflicts,” although “the findings of the agency are by no means conclusive.” Conrad at 111, 407 N.E.2d 1265. The common pleas court conducts a de novo review of questions of law. Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471, 613 N.E.2d 591 (1993), citing R.C. 119.12.

{¶ 17} An appellate court's review of an administrative decision is more limited than that of the common pleas court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). The appellate court is to determine only whether the common pleas court abused its discretion. Id.; Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261, 533 N.E.2d 264 (1988). An abuse of discretion implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Absent an abuse of discretion, this court may not substitute its judgment for that of the administrative agency or the common pleas court. Pons at 621, 614 N.E.2d 748. However, on the question of whether the commission's order was in accordance with the law, this court's review is plenary. Kistler v. Conrad, 10th Dist. No. 04AP-1095, 2006-Ohio-3308, 2006 WL 1781457, ¶ 9, citing Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343, 587 N.E.2d 835 (1992).

IV. LEGAL ANALYSIS

A. First Assignment of Error

{¶ 18} In his first assignment of error, Henschen argues that the trial court and the commission erred in finding that the Form 30-E statements were not “incomplete or inaccurate” under R.C. 3517.11, and that the local board of elections was not required to accept Henschen's anonymous Form 30-E statements on a conditional basis, notify Henschen of the incomplete or inaccurate nature of the reports, and give him an opportunity to cure his statements.

{¶ 19} The parties do not dispute that Henschen was required to file Form 30-E statements under R.C. 3517.105(C)(2)(b)¹ , which requires an individual to file a statement itemizing all independent expenditures made in opposition to a district or local issue placed on the ballot.

{¶ 20} Henschen directs this court to R.C. 3517.11(B)(3)(a), which states that any statement required to be filed under R.C. 3517.105(C)(2)(b) that “is found to be incomplete or inaccurate by the officer to whom it is submitted shall be accepted on a conditional basis, and the person who filed it shall be notified by certified mail as to the incomplete or inaccurate nature of the statement.” Henschen also notes that under R.C. 3517.11(B)(3)(a), an individual who receives notice that their statement is inaccurate or incomplete would have 21 days after receipt of that notice to “file an addendum, amendment, or other correction to the statement providing the information necessary to complete or correct the statement.”

{¶ 21} The commission points us toward R.C. 3517.11(C), which it interprets to require a local board of election to promptly file a complaint with the commission in the event of an incomplete or inaccurate statement. R.C. 3517.11(C)(1) states:

In the event of a failure to file or a late filing of a statement required to be filed under sections 3517.081 to 3517.14 of the Revised Code, or if a filed statement or any addendum, amendment, or other correction to a statement or any amended statement, if an addendum, amendment, or other correction or an amended statement is required to be filed, is incomplete or inaccurate or appears to disclose a failure to comply with or a violation of law, the official whose duty it is to examine the statement shall promptly file a complaint with the Ohio elections commission under section 3517.153 of the Revised Code if the law is one over which the commission has jurisdiction to hear complaints, or the official shall promptly report the failure or violation to the board of elections and the board shall promptly report it to the prosecuting attorney in accordance with division (J) of section 3501.11 of the Revised Code. If the official files a complaint with the commission, the commission shall proceed in accordance with sections 3517.154 to 3517.157 of the Revised Code.

(Emphasis added.)

{¶ 22} R.C. 3517.11(C)(2) also states that:

For purposes of division (C)(1) of this section, a statement or an addendum, amendment, or other correction to a statement or an amended statement required to be filed under sections 3517.081 to 3517.14 of the Revised Code is incomplete or inaccurate under this section if the statement, addendum, amendment, other correction, or amended statement fails to disclose substantially all contributions, gifts, or donations that are received or deposits that are made that are required to be reported under sections 3517.10, 3517.107, 3517.108, 3517.1011, 3517.1012, 3517.1013, and 3517.1014 of the Revised Code or if the statement, addendum, amendment, other correction, or amended statement fails to disclose at least ninety per cent of the total contributions, gifts, or donations received or deposits made or of the total expenditures or disbursements made during the reporting period.

(Emphasis added.)

{¶ 23} The commission argued that Henschen's filed statements were not incomplete or inaccurate because, under R.C.3517.11(C)(2), his statement did not fail to disclose at least ninety percent of his total expenditures during the reporting period. The commission further argues that because Henschen's statements were not “incomplete or inaccurate” under the definition in R.C. 3517.11(C)(2), the local board of elections was not required to conditionally accept his statements or give him an opportunity to cure his statements. Rather, the commission argues that the local board of elections acted in accordance with R.C. 3517.11(C)(1), which requires it to promptly file a complaint with the commission. We do not agree.

{¶ 24} As in any case of statutory construction, the paramount goal is to ascertain and give effect to the legislature's intent in enacting the statute. Brooks v. Ohio State Univ., 111 Ohio App.3d 342, 349, 676 N.E.2d 162 (10th Dist.1996), citing Featzka v. Millcraft Paper Co., 62 Ohio St.2d 245, 405 N.E.2d 264 (1980). In order to do so, this court must first look to the plain language of the statute itself. State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78, 81, 676 N.E.2d 519 (1997); In re Collier, 85 Ohio App.3d 232, 237, 619 N.E.2d 503 (1993). “ ‘If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary.’ ” Id., quoting State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). Only when a statute is found to be subject to various interpretations, may a court invoke rules of statutory construction to determine legislative intent. State v. Smith, 108 Ohio App.3d 663, 667, 671 N.E.2d 594 (1996). Ambiguity in a statute exists if its language is susceptible to more than one reasonable interpretation. State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio St.3d 508, 513, 668 N.E.2d 498 (1996).

{¶ 25} We first turn to R.C. 3517.11(C)(2), which we do not find to be ambiguous. The statute defines “incomplete or inaccurate” statements as those that fail to disclose at least 90 percent of the total expenditures made during the reporting period. Yet, this definition is expressly limited, and it applies only “[f]or purposes of division (C)(1) of this section.” R.C. 3517.11(C)(2). One of the key tenets of statutory construction is that every word in a statute is presumed to have some legal effect. State v. Moore, 99 Ohio App.3d 748, 751, 651 N.E.2d 1319 (1st Dist.1994); see also In re Collier at 237, 619 N.E.2d 503 (“Courts do not have authority to ignore the plain and unambiguous language of a statute under the guise of statutory interpretation, but must give effect to the words used.”). The trial court found, and the commission argues here, that R.C. 3517.11(C)(2)’s definition of “incomplete or inaccurate” should be applied to the entirety of R.C. 3517.11, not just to section (C)(1). However, this would render part of R.C. 3517.11(C)(2) meaningless, namely the limitation of the definition of “incomplete or inaccurate” “[f]or purposes of division (C)(1) of this section.” R.C. 3517.11(C)(2). Therefore, we cannot ignore the express limitation of the definition of “incomplete or inaccurate” within R.C. 3517.11(C)(2) that is constrained to the use of that defined term in R.C. 3517.11(C)(1).

{¶ 26} Our determination that the definition of “incomplete or inaccurate” in R.C. 3517.11(C)(2) applies only to R.C. 3517.11(C)(1) informs our reading of R.C. 3517.11(B)(3)(a), which we similarly do not find to be ambiguous. R.C. 3517.11(B)(3)(a) states, “[a]ny statement required to be filed under sections 3517.081 to 3517.14 of the Revised Code that is found to be incomplete or inaccurate by the officer to whom it is submitted shall be accepted on a conditional basis, and the person who filed it shall be notified by certified mail as to the incomplete or inaccurate nature of the statement.” The statute continues, “Within twenty-one days after receipt of the notice, * * * the recipient shall file an addendum, amendment, or other correction to the statement providing the information necessary to complete or correct the statement.” Id. The plain language of the statute therefore gives filers of statements an opportunity to file a correction after they receive notice that their filing is “incomplete or inaccurate.”

{¶ 27} While R.C. 3517.11(B)(3)(a) uses the same phrase, “incomplete or inaccurate,” that is defined in R.C. 3517.11(C)(2), we have already determined that R.C. 3517.11(C)(2)’s definition of that phrase is limited to R.C. 3517.11(C)(1). Therefore, to understand the meaning of that phrase in R.C. 3517.11(B)(3)(a), we must instead look to the ordinary meaning of “incomplete or inaccurate.” “In determining the plain and ordinary meaning of a word, courts may look to dictionary definitions of the word as well as [to] the ‘meaning that the word[ ] ha[s] acquired when * * * used in case law.’ ” State v. Bertram, 173 Ohio St.3d 186, 2023-Ohio-1456, 229 N.E.3d 8, ¶ 13, quoting Rancho Cincinnati Rivers, L.L.C. v. Warren Cty. Bd. of Revision, 165 Ohio St.3d 227, 2021-Ohio-2798, 177 N.E.3d 256, ¶ 21.

{¶ 28} Merriam-Webster's Dictionary defines “incomplete” as “not complete * * * lacking a usually necessary part, element, or step.” https://www.merriamwebster.com/dictionary/incomplete (accessed Aug. 8, 2024). Here, Henschen's Form 30-E filings were incomplete under the ordinary meaning of that term, as they lacked the “usually necessary part” of the filer's name and address. Id. We therefore agree with Henschen that the local board of elections should have notified him by certified mail of the incomplete nature of the statement and allowed him an opportunity to amend the statements by providing the missing information before the board of elections filed a complaint with the commission. We note that Henschen's Form 30-E filings were accompanied by a cover letter from his attorney that invited communication from the local board of elections should it have questions.

{¶ 29} While we have determined from the plain language of the relevant statutes that Henschen was entitled to notice of incompleteness and an opportunity to cure his statements, we also note that is a harmonious reading of the statute that promotes principles of good government. Read together, R.C. 3517.11(B) and (C) create a remedial system that allows filers to correct incomplete or inaccurate statements, while still allowing the filing of complaints with the commission for more serious failures, namely a failure to disclose at least 90 percent of total contributions. Applying R.C. 3517.11(C)(2)’s definition of “incomplete or inaccurate” to the entirety of R.C. 3517.11, as the commission argues and the trial court found, would allow a local board of elections to file a complaint with the commission for minor exclusions or errors, such as a typo, without affording a filer an opportunity to cure the error.

{¶ 30} Accordingly, we sustain Henschen's first assignment of error.

B. Second and Third Assignments of Error

{¶ 31} In Henschen's second and third assignments of error, he argues that the trial court improperly applied the doctrine of constitutional avoidance and that the compelled disclosure requirement in R.C. 3517.105(C)(2)(b) unconstitutionally burdens his right to free speech.

{¶ 32} Since we have ultimately concluded that Henschen was entitled to an opportunity to cure his Form 30-E statements, we decline to address Henschen's constitutional arguments. “[A] court will not exercise its power to determine the constitutionality of a legislative enactment unless it is absolutely necessary to do so. And, such necessity is absent where other issues are apparent in the record which will dispose of the case on its merits.” Greenhills Home Owners Corp. v. Greenhills, 5 Ohio St.2d 207, 212, 215 N.E.2d 403 (1966); see also Interstate Motor Freight Sys. v. Bowers, 164 Ohio St. 122, 134, 128 N.E.2d 97 (1955); Jackson v. Bartec, Inc., 10th Dist. No. 10AP-173, 2010-Ohio-5558, 2010 WL 4632557, ¶ 12; Columbus v. State,

V. CONCLUSION

{¶ 33} For these reasons, we sustain Henschen's first assignment of error and decline to address his second and third assignments of error. We accordingly reverse the trial court's judgment and remand this matter to that court to reverse the commission's decision.

Judgment reversed; cause remanded.

{¶ 1} I respectfully concur in judgment only.

{¶ 2} I do not agree with the majority's construction of the terms “incomplete or inaccurate” pursuant to R.C. 3517.11(C)(2) as applied to Henschen's filed Form 30-E statement. Thus, I do not agree that Henschen was entitled to the opportunity to cure the deficiencies pursuant to R.C. 3517.11(B)(3)(a). (Majority opinion at ¶ 12.) Therefore, I would overrule the first assignment of error.

{¶ 3} However, I would reverse the trial court's judgment affirming the commission's finding that Henschen had committed a violation of R.C. 3517.13(G)(1) without having first considered whether R.C. 3517.105(C)(2)(b) violates the First Amendment facially and as applied to Henschen. Therefore, I would sustain the second assignment of error. I would render moot the third assignment of error and instruct the trial court to determine the constitutional claims in the first instance.

{¶ 4} For these reasons, I would reverse the trial court's decision that Henschen violated R.C. 3517.13(G)(1) and remand the case to the trial court to address whether R.C. 3517.105(C)(2)(b) violates the First Amendment facially and as applied to Henschen.

FOOTNOTES

1.   R.C. 3517.105(C)(2)(b) states: “Whenever any individual* * * makes one or more independent expenditures in excess of one hundred dollars in support of or opposition to any ballot issue or question, the individual * * * shall file with the * * * board of elections in the county that certifies the issue or question for placement on the ballot in the case of a district or local issue or question, not later than the dates specified in divisions (A)(1), (2), (3), and (4) of section 3517.10 of the Revised Code, and, except as otherwise provided in that section, a statement itemizing all independent expenditures made during the period since the close of business on the last day reflected in the last previously filed such statement, if any. The statement shall be made on a form prescribed by the secretary of state or shall be filed by electronic means of transmission pursuant to division (E) of section 3517.106 of the Revised Code as authorized or required by that division. The statement shall indicate the date and the amount of each independent expenditure and the ballot issue or question in support of or opposition to which it was made and shall be made under penalty of election falsification.”

BOGGS, J.

LELAND, J., concurs. DORRIAN, J., concurring separately.