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State ex rel. Branch v. Pitts

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 23, 2018

STATE OF OHIO, EX REL. DEVIN BRANCH, ET AL. RELATORS
v.
CHRISTOPHER PITTS, ET AL. RESPONDENTS

          Writ of Quo Warranto Order No. 514904

          ATTORNEYS FOR RELATORS Darryl E. Pittman Darryl E. Pittman & Associates, Robert Smith Law Offices of Robert Smith III, L.L.C.

          ATTORNEY FOR RESPONDENTS Willa M. Hemmons

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., JUDGE.

         {¶1} The relators, Devin Branch, Kelvin Erby, and Tracy Udrija-Peters, have filed a complaint for a writ of quo warranto.[1] The complaint for quo warranto seeks: 1) the removal of the respondents, Earnest Smith and Christopher Pitts, from the positions of councilperson on the East Cleveland City Council ("Council"); 2) the seating of Branch and Erby as councilpersons on the Council; 3) the removal of respondent Khadijah Guy as clerk of the Council; and 4) the seating of Udrija-Peters as clerk of the Council.[2] For the following reasons, we grant in part and deny in part the request for a writ of quo warranto.

         I. THE FACTS

         {¶2} On December 6, 2016, a special election was held in order to determine whether the mayor of the city of East Cleveland ("City") and the president of Council should be recalled. The mayor and the president of Council were recalled as certified by the Cuyahoga County Board of Elections. As a result of the certification of the recall election, the mayor and the president of the Council were removed from office. The vice president of the Council, Brandon King, was sworn in as mayor of the City on December 20, 2016, pursuant to § 114 of the East Cleveland City Charter ("Charter"). Two empty councilperson positions were created as a result of the recall and the elevation of King as the mayor of the City.

         {¶3} On December 29, 2016, Nathaniel Martin, Barbara Thomas, and Joie Graham, the remaining members of the Council, convened a special closed-door executive session council meeting in order to interview potential candidates for the two empty councilperson positions. At the conclusion of the closed-door executive session, the Council meeting was continued as a public hearing, without the presence of Graham. Martin and Thomas then "appointed" Branch and Erby to fill the vacant councilperson seats. The newly formed Council then voted to remove Guy as Council clerk and appointed Udrija-Peters as the Council clerk.

         {¶4} A dispute arose between Council members, the mayor, and the law director over the validity of Council's actions in filling the vacant councilperson vacancies and the termination of the Council clerk. On January 23, 2017, King appointed Smith and Pitts to the councilperson seats as previously filled by Branch and Erby. With the support of King, Hemmons, and other city employees, Smith and Pitts took the councilperson seats and excluded Branch and Erby. In addition, Udrija-Peters was removed as Council clerk and Guy was reinstated as the Council clerk through the actions of King, Hemmons, and other city employees. On January 25, 2017, the relators filed their complaint for a writ of quo warranto.

         II. LEGAL ANALYSIS

         {¶5} The Supreme Court of Ohio has firmly established that quo warrant is the sole remedy that may be employed to challenge the right of any person to hold a public office.

Quo warranto is the exclusive remedy to litigate the right of a person to hold a public office. State ex rel Deiter v. McGuire, 119 Ohio St.3d 384, 2008-Ohio-4536, 894 N.E.2d 680, ¶ 20; see also, State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶ 8, citing State ex rel. Johnson v. Richardson, 131 Ohio St.3d 120, 2012-Ohio-57, 961 N.E.2d 187, ¶ 15. In quo warranto, judgment may be rendered on the right of the defendant to hold the contested office and the right of the person alleged to be entitled to hold the office "or only upon the right of the defendant, as justice requires." Deiter at ¶ 22.

State ex rel. Flanagan v. Lucas, 139 Ohio St.3d 559, 2014-Ohio-2588, 13 N.E.3d 1135. See also State ex rel. Price v. Columbus, Delaware & Marion Elec. Co., 104 Ohio St. 120, 135 N.E. 297 (1922); Sections 2 and 3 of Article IV of the Constitution of Ohio.

         {¶6} Thus, this court is required to answer two questions in deciding whether a writ of quo warranto should issue: 1) the right of Smith and Pitts to hold the positions of councilperson; and 2) the right of Branch and Erby to assume the positions of councilperson.

         A. The Appointments of Smith and Pitts to Council

         {¶7} Section 100 of the Charter provides that:

When the office of a member of Council shall become vacant, the vacancy shall be filled by election for the unexpired term by a majority vote of all the remaining members of the Council. If the Council fails within 30 days to fill such a vacancy, the President of Council shall fill it by appointment.

         {¶8} The language of Section 100 mirrors the language of R.C. 731.43, which deals with filling vacancies in the legislative body of a village, except that R.C. 731.43 provides that the power to fill a legislative vacancy falls to the mayor if Council does not act within 30 days of the creation of the vacancy. R.C. 733.31(C) provides that any vacancy in the legislative body of a city is to be filled as set forth in R.C. 731.43. We find that a conflict exists between the Charter and R.C. 731.43, because under the Charter only Council or the Council president may fill a vacancy in Council. Contrary to Section 100 of the Charter, a mayor may fill a vacancy in Council pursuant to R.C. 731.43 and 733.31(C).

         {¶9} The Supreme Court of Ohio has determined that when a conflict exists between a city charter and statutory provisions governing the filling of a legislative vacancy, the charter takes precedence and must be followed to fill any legislative vacancy.

1. The portion of Section 731.43, Revised Code, authorizing the mayor of a municipal corporation to fill by appointment a vacancy in the office of a member of the legislative authority of such municipal corporation, conflicts with Section 5 of the Columbus City Charter providing that "vacancies in council shall be filled by the council for the remainder of the unexpired term."

2. The facts, that a vacancy occurs in the Columbus city council and that council fails for over 30 days to fill such vacancy, do not authorize the mayor of Columbus to fill such vacancy by appointment.

State ex rel. Devince v. Hoermle, 168 Ohio St. 461, 156 N.E.2d 131 (1959), paragraphs one and two of the syllabus.

         {¶10} The Supreme Court of Ohio, in Hoermle, ...


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