dissenting.
{¶ 116} Ohioans learn something new today: two wrongs can make a writ. Through a unique bit of judicial alchemy, two unrelated concurring opinions that were each able to garner the support of only one other justice have combined to produce four votes to grant a writ of mandamus. A majority of this court thus announces the granting of a writ of mandamus, but cannot exactly put its finger on why; it grants a writ of mandamus on the basis of an unclear legal duty. Especially disturbing is the fact that one of the concurrences is based upon a *541theory of relief so novel that the relator never raised it. Thus, the majority grants the writ on the basis of an argument never raised and to which the respondent never had an opportunity to respond.
Unavailability of Mandamus Without Legislative Authority
{¶ 117} When this court grants a writ of mandamus, as in this instance, it commands a public official in another branch of government to perform a certain act. We do not undertake such serious business based upon this court’s view of what the law ought to be. To be entitled to the requested writ, relators must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of the secretary of state to provide it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Evans v. Blackwell, 111 Ohio St.3d 437, 2006-Ohio-5439, 857 N.E.2d 88, ¶ 18.
{¶ 118} There can be no mandamus without a clear legal duty, and this court does not have the power to establish the legal duty enforceable in mandamus. State ex rel. Lewis v. Rolston, 115 Ohio St.3d 293, 2007-Ohio-5139, 874 N.E.2d 1200, ¶ 22. “It is axiomatic that in mandamus proceedings, the creation of the legal duty that a relator seeks to enforce is the distinct function of the legislative branch of government, and courts are not authorized to create the legal duty enforceable in mandamus.” (Emphasis sic.) State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 18.
{¶ 119} This court is powerless to grant a writ of mandamus in this case because the General Assembly has placed upon the secretary of state no legal duty to do what the relator seeks. Correspondingly, the General Assembly has granted the relator no legal right to the relief it seeks. Nothing in R.C. 3501.07 requires the secretary of state to appoint to the county elections board the second person recommended by the county executive committee of the political party entitled to the appointment, nor does that statute confer a right on the committee to file a mandamus action in this court to challenge the secretary’s rejection of a successive recommendation. Even accepting the view that R.C. 3501.07 provides a repeating procedure for successive committee recommendations, the statute does not impose any duty on the secretary of state to appoint an elector recommended by a political party’s county executive committee when the committee’s recommendation is not made and filed within the time specified by the statute.
The Powers and Duties of the Secretary of State
{¶ 120} R.C. 3501.07 is the focus of this case, but we must examine R.C. 3501.07 with other statutes in pari materia.
*542{¶ 121} By statute, only the secretary of state has the power to make appointments to county boards of elections. R.C. 3501.05 provides:
{¶ 122} “The secretary of state shall do all of the following:
{¶ 123} “(A) Appoint all members of boards of elections.”
{¶ 124} Pursuant to R.C. 3501.06, the members of the boards of elections are appointed by the secretary of state and serve as the secretary of state’s representatives. The only absolute limitation on her power to appoint is that each four-member board must consist of two members from each major political party:
{¶ 125} “There shall be in each county of the state a board of elections consisting of four qualified electors of the county, who shall be appointed, by the secretary of state, as the secretary’s representatives, to serve for the term of four years. On the first day of March in even-numbered years the secretary of state shall appoint two of such board members, one of whom shall be from the political party which cast the highest number of votes for the office of governor at the most recent regular state election, and the other shall be from the political party which cast the next highest number of votes for the office of governor at such election.” (Emphasis added.) R.C. 3501.06.
{¶ 126} The secretary of state’s appointments to the boards of elections must be equally divided between the two major political parties, pursuant to R.C. 3501.06. Thus, each party is entitled to two spots on the board of elections, but the authority to make the appointments belongs to the secretary of state. R.C. 3501.05.
{¶ 127} Moreover, in the process of appointing elections board members, time is of the essence. R.C. 3501.06 and 3501.07 contemplate an accelerated appointment process. The secretary of state must appoint 176 persons to boards of elections by March 1 in even-numbered years. R.C. 3501.06. Within five days after the secretary’s appointments are made, the members must meet and reorganize. R.C. 3501.09. “An analysis of R.C. 3501.07 reveals that the General Assembly in providing for the appointment of recommended electors to boards of elections recognized that such decisions should be finalized as quickly as possible, so that the work of the board may not be impeded, and that there be four members of the board acting in their official capacity at all times.” State ex rel. Democratic Executive Commt. of Lucas Cty. v. Brown (1974), 39 Ohio St.2d 157, 164-165, 68 O.O.2d 100, 314 N.E.2d 376 (Stern, J., concurring).
{¶ 128} Any interpretation of R.C. 3501.07 must take into account the statutory sections surrounding it. Those statutes establish that the power to appoint the secretary of state’s own representatives lies with the secretary of state, not local party officials, that equal representation is achieved by requiring the secretary of *543state to appoint an equal number of members from each of the two leading political parties, and that the Secretary should make those appointments in an expeditious manner.
Limits to Political Party Executive Committee’s Authority and Recourse under R.C. 3501.07
{¶ 129} The relator must establish a clear legal right to its requested relief. R.C. 3501.07 gives the county executive committees of the major political parties the authority to recommend to the secretary of state whom she should appoint to the slots each political party is entitled to on boards of election. However, the appointments are not automatic upon the recommendations; the secretary of state may refuse to appoint a recommended elector if she believes that the recommended elector would not be a competent board member.
{¶ 130} Further, the participation of the county executive committee in the appointment process is permissive, not mandatory, under R.C. 3501.07; the statute states that “the county executive committee * * * may make and file a recommendation.” (Emphasis added.) The statute also provides that the Secretary shall make an appointment when the committee fails to make a recommendation.
{¶ 131} The law anticipates and allows the secretary of state to make appointments to boards of elections without a recommendation of the county executive committee. A grant of mandamus in this case must presuppose the absolute necessity of participation by county executive committees. There is no statutory support for that.
The Operation of R.C. 3501.07
{¶ 132} R.C. 3501.07 provides:
{¶ 133} “At a meeting held not more than sixty nor less than fifteen days before the expiration date of the term of office of a member of the board of elections, or within fifteen days after a vacancy occurs in the board, the county executive committee of the major political party entitled to the appointment may make and file a recommendation with the secretary of state for the appointment of a qualified elector. The secretary of state shall appoint such elector, unless he has reason to believe that the elector would not be a competent member of such board. In such cases the secretary of state shall so state in writing to the chairman of such county executive committee, with the reasons therefor, and such committee may either recommend another elector or may apply for a writ of mandamus to the supreme court to compel the secretary of state to appoint the elector so recommended. In such action the burden of proof to show the qualifications of the person so recommended shall be on the committee making *544the recommendation. If no such recommendation is made, the secretary of state shall make the appointment.”
{¶ 134} There is no ambiguity in how R.C. 3501.07 works. R.C. 3501.07 prescribes the following procedure for committee recommendations of elections board members when a member’s term of office is about to expire:
{¶ 135} 1. The county executive committee of the political party entitled to the appointment may make and file a recommendation with the secretary of state for the appointment of a qualified elector if it does so at a meeting held not more than 60 nor less than 15 days before the expiration date of the term of office.
{¶ 136} 2. The secretary shall appoint the recommended elector, unless the secretary has reason to believe that the elector would not be a competent member of the board.
{¶ 137} 3. If the secretary has reason to believe that the elector would not be competent, the secretary must give written reasons to the chairman of the committee.
{¶ 138} 4. The committee may either recommend another elector or apply to this court for a writ of mandamus to compel the secretary of state to appoint the recommended elector. In the case of a writ of mandamus, the committee has the burden to prove the qualifications of the recommended elector.
{¶ 139} 5. If no such recommendation is made, the secretary of state shall make the appointment.
{¶ 140} The plain language of R.C. 3501.07 does not specify any duty on the part of the secretary of state to appoint the second elector recommended by a county executive committee. Instead, the statute requires that the Secretary support by written reasons the rejection of the first elector recommended by the committee. Moreover, once the committee forgoes the mandamus option regarding the first recommendation, R.C. 3501.07 grants no right to the committee to assert it in regard to the second recommendation; the statute specifies mandamus in this court as the appropriate remedy to challenge the Secretary’s rejection of the first recommendation, but it is silent about the availability of that action to challenge the Secretary’s rejection of a successive committee recommendation.
{¶ 141} This court has held that the participation of the county executive committee in the appointment process is not mandatory and that the committee has a limited opportunity to make a recommendation. Although a committee may seek a writ of mandamus on its original recommendation, the committee’s power to recommend effectively ends at the point it seeks mandamus. State ex rel. Pike Cty. Republican Executive Commt. v. Brown (1989), 43 Ohio St.3d 184, 540 N.E.2d 245. When the mandamus action is filed, either this court finds that the recommended elector was indeed qualified and the Secretary must appoint *545him, or this court finds in favor of the Secretary and the committee has no further authority to recommend a different elector. As this court held in Pike Cty.:
{¶ 142} “If the committee’s first choice is not appointed, the committee may either make another recommendation or it may file for a writ of mandamus. R.C. 3501.07 does not allow the committee to make a second recommendation in addition to filing for a writ of mandamus.” (Emphasis sic.) Pike Cty., 43 Ohio St.3d at 185, 540 N.E.2d 245.
{¶ 143} Thus, when the court finds in favor of the Secretary in the mandamus action, the committee has no authority to make a second recommendation; the Secretary makes the replacement appointment on her own, without having to consider a recommendation from the committee.
{¶ 144} R.C. 3501.07’s alternative to a mandamus action upon the Secretary’s rejection of the first recommendation is for the committee to make another recommendation. The seeming attractiveness of the second-recommendation option is a relatively quick decision as to the elector’s appointment, as opposed to a potentially time-consuming mandamus action.
{¶ 145} By not allowing the committee to make another recommendation after a mandamus action is filed, R.C. 3501.07 prevents a committee from making an unlimited number of recommendations to the secretary of state. Under the committee’s suggested interpretation, a committee could continue to make recommendations and the secretary of state could refuse to appoint those recommended electors ad infinitum. That would effectively remove from the Secretary the power to appoint. The statute prevents that scenario by limiting the number of recommendations the committee can make.
{¶ 146} R.C. 3501.07 is complementary to the rest of Ohio’s statutory scheme regarding the secretary of state. Interpreting the statute to give a committee only one opportunity to choose between filing a mandamus action and making another recommendation prevents a merry-go-round of recommendations and refusals, and allows the Secretary to achieve finality in her appointments, so that the members, who are, after all, her representatives, may carry on the important work of the boards of elections. It also gives the committee an opportunity to defend before an impartial tribunal its first recommendation.
{¶ 147} Had the General Assembly intended a repeating procedure, it could have easily included it in R.C. 3501.07. In fact, when the General Assembly has intended to set forth statutory requirements upon a second rejection of a particular thing, it has done so. For example, R.C. 125.52 provides a procedure for a first rejection of bids on certain government contracts; R.C. 125.53 specifies the procedure for a second rejection. If the General Assembly had determined that a balancing of the various policy interests warranted application of the *546statutory procedure to successive committee recommendations, it would have specified that application in R.C. 3501.07. See State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 46. It did not do so.
The Concurrences
{¶ 148} Justice O’Donnell’s concurrence ignores R.C. 3501.05, which states that the secretary of state shall make all appointments to boards of elections. The concurrence states that R.C. 3501.07 does not authorize the Secretary to reject the committee’s second recommendation. However, the statute also does not direct the Secretary to appoint the recommended elector absent a finding of incompetence, as it does with the first recommended elector. Even if the Secretary were somehow powerless to reject the recommendation, the committee’s recommendation could never be more than a recommendation. The power to appoint belongs to the Secretary pursuant to R.C. 3501.05. How could that power default to the committee without the default being mentioned in the statute? How could the power to recommend be stretched to mean that the committee has the power to appoint? It could not, absent a rewriting of the statute.
{¶ 149} Justice O’Donnell’s concurrence states that “[t]he procedure in R.C. 3501.07 is comparable to the gubernatorial appointment procedure for members of the board of directors of the Bureau of Workers’ Compensation and for the commissioners of the Public Utilities Commission.” ¶ 35. Actually, the statutes the governor must follow in making those appointments, R.C. 4121.12 and 4901.02, set forth a completely different appointment process from that set forth in R.C. 3501.07, and place upon the governor a clear legal duty. Pursuant to R.C. 4121.12 and 4901.02, the governor must make the appointments from a list of names submitted by the pertinent nominating entity. The participation of the nominating entities is mandatory; under R.C. 3501.07, the participation of the county executive committees is permissive. Also, although R.C. 4121.12 and 4901.021 allow the governor to seek a second list of names from the nominating entity, the governor has no further recourse; the statutes explicitly require the governor to appoint a person from either of the two lists. R.C. 3501.07 lacks any explicit requirement of the secretary to appoint the second elector recommended by the county executive committee. R.C. 4121.12 and 4901.02 present good examples of what R.C. 3501.07 could have been, but isn’t.
{¶ 150} Justice Cupp’s concurrence recognizes the right of the Secretary to reject the committee’s second recommendation, but would give the committee an additional chance to seek mandamus in this court. His concurrence states that “[t]o foreclose a mandamus challenge at this juncture would remove both of the statutory remedies granted to a political party executive committee to ensure *547meaningful participation in the selection of the board member to which that party is entitled: challenging the Secretary’s rejection of its second candidate or recommending someone else from its party to serve as a board member for that party.” ¶ 87.
{¶ 151} To the contrary, the committee itself refused the remedy of mandamus. It had two choices upon the Secretary’s rejection of Arshinkoff: file a mandamus action or make another recommendation. The committee declined to seek mandamus regarding its first, and presumably best, recommended elector. It had the right to argue before this court why Arshinkoff was indeed competent to serve. It chose not to assert its right to do so. The statute is not written to allow the committee to assert that right some other time — time is of the essence in the process of appointing boards of elections. The committee blew its one chance.
{¶ 152} Instead, the committee chose a route that did not include mandamus— it chose to recommend a second elector. Although the Secretary did not choose to appoint that recommended elector, R.C. 3501.06 guaranteed equal participation by both political parties. The Secretary remained statutorily bound to appoint a Republican to the board.
Failure to File Second Recommendation Within the Time Specified in R.C. 3501.07
{¶ 153} Even assuming that the Secretary’s rejection of the committee’s first recommendation restarted the statutory procedure set forth in R.C. 3501.07 once the committee decided to submit a second recommendation, the committee’s mandamus claim still fails. If the statutory process starts over again, it does so in toto. The second recommendation was not made at a committee meeting within the time specified in R.C. 3501.07: “not more than sixty nor less than fifteen days before the expiration date of the term of office of a member of the board of elections.” The committee made and filed its recommendation of Daley with the secretary of state on February 26, which was less than the 15 days specified in R.C. 3501.07 before the expiration of Arshinkoffs board of elections term for the committee to submit a timely recommendation. Thus, the secretary of state did not have any duty to provide written reasons for rejecting Daley, and the committee did not have a right to bring the mandamus action specified in the statute in this court to challenge the Secretary’s rejection.
{¶ 154} The committee relies on the Secretary’s supposed 21-day delay in ruling on its first recommendation to support its argument that the statute should not include a time requirement on successive recommendations. This argument ignores the committee’s own 30-day delay in submitting its first recommendation to the Secretary. Under R.C. 3501.07, the committee could have submitted its first recommendation as early as 60 days before the expiration of Arshinkoffs *548term of office, but it waited until 31 days before the February 29, 2008 expiration of his term to submit its recommendation that the Secretary reappoint Arshin-koff. In fact, there is no evidence in the record that the Secretary deliberately delayed her determination on the committee’s first recommendation so as to prevent the committee from exercising its rights under R.C. 3501.07. Instead, if anything, the Secretary afforded the Committee more rights than it was entitled to under the statute by providing a letter detailing reasons for her rejection of the committee’s second recommendation, although the statute did not require her to do so.
Grendell & Simon Co., L.P.A., and Timothy J. Grendell, for relator. Nancy Hardin Rogers, Attorney General, and Richard N. Coglianese, Damian W. Sikora, Pearl M. Chin, and Michael J. Schuler, Assistant Attorneys General, for respondent.Conclusion
{¶ 155} Legislative silence does not equate to a clear legal duty or to a clear legal right. Neither concurrence is tenable without adding language to R.C. 3501.07. R.C. 3501.07 does not require additional language to meet the General Assembly’s purpose. As written, it provides for the bipartisan make-up of boards of elections, gives county executive committees input into appointments, gives the Secretary the power to refuse to appoint an incompetent elector, and gives the committee the opportunity to appeal the Secretary’s refusal to this court or to make another recommendation. It sets forth an appeal right as to only the first recommendation, thus ensuring a quicker process in making the time-sensitive appointments to the boards of elections.
{¶ 156} Because R.C. 3501.07 imposes no duty upon the secretary of state to appoint Daley under the circumstances present in this case, the court should deny the writ. Because the court does not do so, I dissent.
Moyer, C.J., and Lanzinger, J., concur in the foregoing opinion.