Due Process is Due
By saying Lieberman and Ritchie violated the law, Husted violates the law himself
By A.J. Wagner
It is interesting to debate the issues surrounding the Husted v. Lieberman and Ritchie affair – see this week’s forum on pages 6-7 – but just as interesting are the laws that apply to the situation. Here’s a rundown of some of the pertinent law that should be considered by the hearing officer and Secretary Husted when deciding whether Dennis Lieberman (a partner in my law firm) and Tom Ritchie should be dismissed from the Montgomery County Board of Elections for their alleged violation of a directive issued by Husted.
John Husted, as Secretary of State has significant control over elections and election processes in Ohio. On Aug. 15, 2012 he issued a directive to all of the boards of election in Ohio that stated, “I hereby direct all boards of election to adopt the following as their regular business hours.” The directive then went on to outline the hours to be followed for Monday through Friday from Oct. 2 through Nov. 2, 2012. The directive specifically stated that the board was to be closed on Monday, Oct. 8, due to Columbus Day. The directive made absolutely no mention of opening or closing for Saturdays or Sundays.
This oversight was noticed by Lieberman so he felt that Saturday and Sunday were still fair game and brought a motion at a regular meeting of the board on the morning of Friday, Aug. 17, which was seconded by Ritchie, to open for voting on Saturdays and Sundays in October. The two Republican members of the Board voted “no” on the measure. All ties go to the Secretary of State for decision and, as expected, Husted nixed the motion, but not before having his Director of Elections, Matthew Damschroder, send a letter to Ritchie, as chair of the board, demanding that a meeting be held by 3 p.m. Friday afternoon to rescind the motion. The letter rewrote the earlier directive by saying the “only” days and hours the offices were to be open for absentee voting were the hours stated in the directive. The letter further threatened that failure to rescind the motion may result in removal for voting in contravention of a directive. Damschroder has no legal standing to change or rewrite a directive.
Lieberman and Ritchie refused to rescind the motion and Husted issued a letter, delivered Saturday by certified mail, to Lieberman and Ritchie commanding their presence in Columbus for a hearing the following Monday morning at 9 a.m. to determine why they should not be removed from office for violation of the directive.
There are two important areas of law to focus on here. First, whether Lieberman and Ritchie received due process when they were forced to appear at a hearing about 36 hours after receiving official notice of the hearing.
Amendment 14 Section 1 of the United States Constitution states, “. . . nor shall any State deprive any person within any person of life, liberty, or property, without due process of law . . .”
Due process is a requirement for procedures that allow for fairness and justice. Ohio Revised Code Section 3.08, which deals with removal of officials from office and has been interpreted by some courts to apply to this situation, requires a ten-day notice. Courts have also held that due process requires time to prepare a case. It takes more than a weekend to prepare any good case.
Due process also calls for impartiality. Lieberman and Ritchie have previously determined that Husted did not live in Kettering where he was registered to vote. This almost caused Husted to be removed from the ballot in the election for Secretary of State. As a result, Husted is hardly impartial when it comes to Lieberman and Ritchie.
The second area of law to consider is the directive and whether it was violated. There is little question that the directive is a legal order. Ohio Attorney General, Mike DeWine, issued an opinion to that effect on Friday, Aug. 17, 2012, but the hearing officer and the Secretary must consider how making a motion and voting on it violates the order.
First of all, Lieberman is correct, the directive never addressed hours for Saturday or Sunday. The directive did not say the hours were the “only” hours of operation. In fact, the directive specifically said offices were to be closed on Columbus Day while saying nothing about the weekends.
Secondly, even if you interpret the directive to limit the hours, the directive did not forbid motions from being made. The offices were not open in contravention to the directive. There is no interpretation that can say the order was violated.
By the time this is published we will have the decision. If Husted removes Lieberman and Ritchie, expect a court to look at this matter to make the ultimate decision.
Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.
A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.