Court of Appeals of Ohio, Eighth District, Cuyahoga
STATE OF OHIO, EX REL. DEVIN BRANCH, ET AL. RELATORS
CHRISTOPHER PITTS, ET AL. RESPONDENTS
of Quo Warranto Order No. 514904
ATTORNEYS FOR RELATORS Darryl E. Pittman Darryl E. Pittman
& Associates, Robert Smith Law Offices of Robert Smith
ATTORNEY FOR RESPONDENTS Willa M. Hemmons
JOURNAL ENTRY AND OPINION
A. JONES, SR., JUDGE.
The relators, Devin Branch, Kelvin Erby, and Tracy
Udrija-Peters, have filed a complaint for a writ of quo
warranto. 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. For the following reasons, we grant in
part and deny in part the request for a writ of quo warranto.
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.
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.
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
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.
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.
The Appointments of Smith and Pitts to Council
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
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
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
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
The Supreme Court of Ohio, in Hoermle, ...