[Cite as McKitrick v. LaRose, 2022-Ohio-3800.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Bradley T. McKitrick et al., :
Plaintiffs-Appellants, : No. 22AP-582
(C.P.C. No. 22CV-6230)
v. :
(ACCELERATED CALENDAR)
Frank LaRose, in his official capacity as :
Ohio Secretary of State, et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on October 25, 2022
On brief: McTigue & Colombo, LLC, Donald J. McTigue, and
J. Corey Colombo, for appellants.
On brief: Dave Yost, Attorney General, Julie M. Pfeiffer,
Michael A. Walton, and Garrett M. Anderson, for appellee
Frank LaRose, in his official capacity as Ohio Secretary of
State.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, P.J.
{¶ 1} Plaintiffs-appellants, Bradley T. McKitrick and William S. Jordan, III, appeal
from a judgment of the Franklin County Court of Common Pleas denying appellants'
motion for a temporary restraining order and preliminary injunction enjoining the
inclusion of Judge Jill Flagg Lanzinger's name on the November 8, 2022 general election
ballot for a seat on the Ninth District Court of Appeals. For the following reasons, we vacate
the trial court's judgment and remand with instructions to dismiss the matter.
No. 22AP-582 2
I. Facts and Procedural History
{¶ 2} Appellants are qualified electors of Summit County, Ohio, entitled to vote for
judicial candidates for the Ninth District Court of Appeals. The 2022 general election ballot
will include three open seats on the Ninth District Court of Appeals, with terms that
commence on February 9, 10, and 11, 2023, respectively.
{¶ 3} Judge Lanzinger, who currently sits on the Barberton Municipal Court, ran
as a Republican in the May 3, 2022 primary election by declaration of candidacy for the
seat on the Ninth District Court of Appeals that commences on February 9, 2023. Judge
Lanzinger won that primary. Judge Lynn Callahan, currently a judge on the Ninth District
Court of Appeals, won the Republican primary for the seat commencing on February 11,
2023. After winning the primary, however, Judge Callahan announced her retirement and
withdrew as a candidate for that seat. After Judge Callahan made this announcement,
Judge Lanzinger withdrew her candidacy for the seat for which she was nominated at the
primary election. The Republican Party District Committee for Summit, Wayne, Medina,
and Lorain counties selected Judge Lanzinger to fill the general election vacancy created by
Judge Callahan's withdrawal of candidacy. This nomination was accepted by Judge
Lanzinger and was sent to the Summit County Board of Elections for certification. Two
board of elections members voted to certify Judge Lanzinger's candidacy, and the other two
voted against this certification. Consequently, pursuant to R.C. 3501.11(X), the matter was
referred to defendant-appellee Ohio Secretary of State Frank LaRose ("Secretary") to break
the tie. The Secretary decided the issue in favor of placing Judge Lanzinger's name on the
general election ballot as a candidate for the seat commencing February 11, 2023.
{¶ 4} On September 8, 2022, appellants filed a declaratory judgment complaint
and a motion for temporary restraining order and preliminary injunction requesting the
trial court enjoin the Secretary and the board members of the Summit County Board of
Elections from placing Judge Lanzinger on the 2022 general election ballot. The trial court
denied the motion based on its finding that appellants did not meet their burden of
establishing, under the pertinent factors, that the requested injunction is warranted.
{¶ 5} Appellants timely appeal.
No. 22AP-582 3
II. Assignments of Error
{¶ 6} Appellants assign the following errors for our review:
[1.] The Trial Court erred in its finding that R.C. 3513.04
applies only to unsuccessful candidates at the primary election.
[2.] The Trial Court erred in finding that Appellants will not
suffer irreparable injury.
[3.] The Trial Court erred in finding "harm" to Judge
Lanzinger.
[4.] The Trial Court erred in its analysis for the public interest.
III. Discussion
{¶ 7} Before addressing the merits of appellants' appeal, we must determine the
threshold issue of whether the trial court had subject-matter jurisdiction. Subject-matter
jurisdiction is a court's power to hear and decide a particular class of cases. Bank of Am.,
N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 19. Because a court is powerless to
hear and decide a case without subject-matter jurisdiction, the issue cannot be waived and
may be raised at any time by the parties or a reviewing court. State ex rel. Bond v. Velotta
Co., 91 Ohio St.3d 418, 419 (2001); Pointer v. Smith, 10th Dist. No. 20AP-555, 2021-Ohio-
2247, ¶ 8.
{¶ 8} Here, the Secretary's tie-breaking decision, placing Judge Lanzinger's name
on the general election ballot as a candidate for the Ninth District Court of Appeals seat
commencing February 11, 2023, was made pursuant to R.C. 3501.11(X). This statute
provides as follows: "In all cases of a tie vote or a disagreement in the board, if no decision
can be arrived at, the director or chairperson shall submit the matter in controversy, not
later than fourteen days after the tie vote or the disagreement, to the secretary of state, who
shall summarily decide the question, and the secretary of state's decision shall be final."
Because the Secretary's tie-breaking decision is "final," it is not subject to judicial review,
except in an action seeking an extraordinary writ. State ex rel. Emhoff v. Medina Cty. Bd.
of Elections, 153 Ohio St.3d 313, 2018-Ohio-1660, ¶ 14; State ex rel. Herman v. Klopfleisch,
72 Ohio St.3d 581, 583 (1995).
No. 22AP-582 4
{¶ 9} A court may review, in an extraordinary action, "whether the Secretary of
State engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes or
applicable legal provisions." Id. A declaratory judgment and injunctive relief action is not
an action that seeks an extraordinary writ. State ex rel. Ministerial Day Care Assn. v.
Zelman, 100 Ohio St.3d 347, 2003-Ohio-6447, ¶ 25; Brown v. Columbus City Schools Bd.
of Edn., 10th Dist. No. 08AP-1067, 2009-Ohio-3230, ¶ 14. Appellants, seeking to challenge
the Secretary's decision to place Judge Lanzinger's name on the 2022 general election
ballot, initiated this action for declaratory judgment and injunctive relief in the ordinary
course of law. Because the trial court lacked subject-matter jurisdiction over appellants'
action, it erred in not dismissing the case before reaching the merits.
{¶ 10} Accordingly, we vacate the judgment of the Franklin County Court of
Common Pleas and remand this matter to that court with instructions to dismiss the case.
This disposition renders as moot appellants' four assignments of error.
Judgment vacated;
cause remanded.
KLATT and SADLER, JJ., concur.