State ex rel. Johnson v. Richardson
| Decision Date | 12 January 2012 |
| Docket Number | No. 2011–1464.,2011–1464. |
| Citation | 961 N.E.2d 187,131 Ohio St.3d 120,2012 -Ohio- 57 |
| Parties | The STATE ex rel. JOHNSON v. RICHARDSON et al. |
| Court | Ohio Supreme Court |
OPINION TEXT STARTS HERE
Rion, Rion & Rion, L.P.A., Inc., Dayton, and Bradley D. Anderson, Troy, for relator.
Schottenstein, Zox & Dunn Co., L.P.A., Alan G. Starkoff, Jeremy M. Grayem, and Asim Z. Haque, Columbus, for respondents.
[Ohio St.3d 120] {¶ 1} This is an original action in which relator, Terry Johnson, requests a writ of quo warranto to oust respondent Scott Richardson from the office of member of the council of the village of Carlisle, Ohio, and to declare relator entitled to the office. Because the pertinent facts are uncontroverted and relator has established his entitlement to the requested extraordinary relief, we grant the writ.
{¶ 2} On November 3, 2009, Chad S. Johnson was elected to serve a four-year term as an at-large member of the Carlisle Village Council. On April 22, 2011, Chad S. Johnson resigned from his office as an at-large council member effective June 1, 2011.
{¶ 3} On June 28, 2011, at a regular meeting of the Carlisle Village Council, the remaining six council members voted to fill the vacant council seat. Of the six votes cast, respondent Scott Richardson received three votes, relator, Terry [Ohio St.3d 121] Johnson, received two votes, and Cheryl Sweezy received one vote. After village-council members disagreed about whether their vote had filled the vacant council seat, a council member requested that the village law director render an opinion on the matter.
{¶ 4} On June 30, the law director gave his written opinion concerning the June 28 vote. On that same date, the law director swore Richardson into the office of member of village council. No further votes to elect a successor council member were taken.
{¶ 5} On July 1, 2011, Carlisle Mayor Timothy Humphries appointed relator, Terry Johnson, to the office of Carlisle Village Council member to fill the vacancy caused by the resignation of former council member Chad S. Johnson. But Richardson has assumed the council seat and purported to exercise the rights and duties of that office, notwithstanding the mayor's request that he remove himself from the council meetings.
{¶ 6} On August 25, 2011, Terry Johnson filed this action for a writ of quo warranto to oust Richardson from the office of member of the Carlisle Village Council and to declare Johnson entitled to possession of that office. Richardson filed an answer, the village filed a motion to intervene and an answer, and Johnson filed a memorandum in opposition to the motion to intervene. Twenty-four days after he filed his answer, Richardson filed a motion for judgment on the pleadings. Johnson filed a motion to strike Richardson's motion.
{¶ 7} This cause is now before the court for our consideration of the village's motion to intervene, Johnson's motion to strike Richardson's motion for judgment on the pleadings, and our S.Ct.Prac.R. 10.5 determination.
{¶ 8} The village of Carlisle seeks to intervene as an additional respondent in this case. The village has an interest in this case because it involves the interpretation of the village's charter procedure to fill a vacancy in the village council. Moreover, the village may not be adequately represented by Richardson in this proceeding. Further, the village has complied with the mandatory procedural requirements of Civ.R. 24(C) by filing its answer with its motion to intervene.
{¶ 9} Based on the foregoing, as well as our duty to liberally construe Civ.R. 24 in favor of intervention, we grant the village's motion to intervene. See State ex rel. Watkins v. Eighth Dist. Court of Appeals (1998), 82 Ohio St.3d 532, 534, 696 N.E.2d 1079.
[Ohio St.3d 122] Motion to Strike
{¶ 10} Johnson moves to strike Richardson's motion for judgment on the pleadings. In an original action filed here, the respondent “shall file an answer to the complaint or a motion to dismiss within twenty-one days of service of the summons and complaint.” S.Ct.Prac.R. 10.5(A). Under S.Ct.Prac.R. 10.5(B), “[t]he respondent may file a motion for judgment on the pleadings at the same time an answer is filed.” (Emphasis added.)
{¶ 11} Under the rule, respondents in original actions filed in the Supreme Court are authorized to file motions for judgment on the pleadings, but if they do so, the motion must be filed “at the same time an answer is filed.” State ex rel. Van Landingham v. Lucas Cty. Bd. of Elections (2002), 94 Ohio St.3d 1509, 764 N.E.2d 1038; State ex rel. Toledo v. Lucas Cty. Bd. of Elections (2002), 95 Ohio St.3d 73, 74, 765 N.E.2d 854. Because Richardson did not file his motion for judgment on the pleadings until 24 days after he filed his answer, we grant Johnson's motion and strike the untimely motion.
S.Ct.Prac.R. 10.5 Standard
{¶ 12} We now determine whether dismissal, an alternative writ, or a peremptory writ is appropriate. S.Ct.Prac.R. 10.5. Dismissal, which respondents request in their answers, is required if it appears beyond doubt, after presuming the truth of all material factual allegations of relator's complaint and making all reasonable inferences in his favor, that relator is not entitled to the requested extraordinary relief in quo warranto. See State ex rel. Duke Energy Ohio, Inc. v. Hamilton Cty. Court of Common Pleas, 126 Ohio St.3d 41, 2010-Ohio-2450, 930 N.E.2d 299, ¶ 13.
{¶ 13} If, however, after so construing the complaint, it appears that relator's quo warranto claim may have merit, we will grant an alternative writ and issue a schedule for the presentation of evidence and briefs. See State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 8.
{¶ 14} Finally, if the pertinent facts are uncontroverted and it appears beyond doubt that relator is entitled to the requested extraordinary relief in quo warranto, a peremptory writ will be granted. See State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 14.
{¶ 15} “[Q]uo warranto is the exclusive remedy by which one's right to hold a public office may be litigated.” State ex rel. Battin v. Bush (1988), 40 Ohio St.3d 236, 238–239, 533 N.E.2d 301; see also State ex rel. Varnau v. Wenninger, 128 Ohio St.3d 361, 2011-Ohio-759, 944 N.E.2d 663, ¶ 9. “To be entitled to the writ of quo warranto, the relator must establish that the office is being unlawfully held [Ohio St.3d 123] and exercised by respondent and that relator is entitled to the office.” State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 23.
{¶ 16} Relator asserts that Richardson's holding and exercising the office of village-council member is unlawful because the village council did not properly vote for him to fill the vacancy pursuant to the village charter. Under Section 4.01(a) of the Carlisle Charter, “all powers of the Municipality, including its legislative powers, shall be vested in a Council consisting of seven (7) members (including the Mayor),” with three of the council's seven members being elected from the village at large. The office of member of the village council became vacant when Chad S. Johnson resigned effective June 1, 2011. See Section 4.05(a), Carlisle Charter. (“The office of member of Council shall become vacant upon the member of Council's death, resignation, removal from office in any manner authorized by this Charter, or forfeiture of office”).
{¶ 17} Section 4.05(d) of the village charter governs the procedure to fill vacancies in the office of village council:
{¶ 18} (Emphasis added.)
{¶ 19} Richardson and the village claim that Richardson lawfully holds the office of village-council member based on the village council's June 28, 2011 vote of three to two to one in which three council members voted for Richardson and two council members voted for relator, Terry Johnson. Relator counters that because Richardson received the vote of only three of the six remaining council members, he did not receive the requisite “majority vote” to fill the vacancy.
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