Greene v. Cuyahoga Cnty., 95790.

• Decision Date: 27 October 2011
• Docket Number: No. 95790.,95790.
• Citation: 2011 -Ohio- 5493,961 N.E.2d 1171,195 Ohio App.3d 768
• Parties: GREENE et al., Appellants, v. CUYAHOGA COUNTY et al., Appellees.
• Court: Ohio Court of Appeals

195 Ohio App.3d 768

2011 -Ohio- 5493

961 N.E.2d 1171

GREENE et al., Appellants,

v.CUYAHOGA COUNTY et al., Appellees.

No. 95790.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Oct. 27, 2011.

Zagrans Law Firm, L.L.C., and Eric H. Zagrans, Cleveland, for appellants.

William D. Mason, Cuyahoga County Prosecuting Attorney, and David Lambert, Charles E. Hannan Jr., and Patrick J. Murphy, Assistant Prosecuting Attorneys, for appellees.

MARY JANE TRAPP, Judge.

[Ohio App.3d 771] {¶ 1} This case stems from the Cuyahoga County voters' decision in November 2009 to abolish the county's statutory form of government and replace it with a charter government. One of the plaintiffs below and the sole appellant in this appeal, Norman G. Lange, a Cuyahoga County voter, sued along with two other voters and then County Recorder, Judge Lillian Greene (Retired), claiming that Judge Greene and other county officials were being unconstitutionally removed from office before the end of their terms.

{¶ 2} The voters of Cuyahoga County are empowered by the Constitution to change the form of their government as they see fit. Despite plaintiffs' efforts to frame their legal challenge as one implicating the constitutional prohibition against retroactive law, the core issues in this case are (1) whether the elected officers have a vested property interest right in the offices they occupy, which would prohibit the voters from abolishing their offices midterm and (2) who has standing to challenge the constitutionality of the new county charter.

{¶ 3} While at first blush the arguments advanced by the plaintiffs may be appealing, Ohio law does not recognize an officeholder's vested right in the office. As observed by Thomas Jefferson, “when a man assumes a public trust he should [Ohio App.3d 772] consider himself as public property.” ¹ Neither does Ohio law recognize an elector's right to have an elected officer complete his or her term in the office. The consequences of the voters' decision to change the form of government may be harsh for the officeholders, who had made a commitment to the public that they would serve in that office and expended time and money to be elected to a four-year term. County offices, however, are a public privilege and not a property right. The Cuyahoga County Charter (“the charter”) could have provided a remedy for the officeholders whose terms are abolished in midterm, but the drafters chose not to; and this court cannot provide redress. Therefore, we affirm the trial court's decision granting summary judgment in favor of defendants.²

Substantive Facts and Procedural History

{¶ 4} In November 2009, the voters of Cuyahoga County adopted the charter, which replaces the county's statutory form of government with a new governing structure anchored by an elected county executive and an elected 11–member council. The county executive and county council have the duties and responsibilities previously performed by county commissioners. The county executive appoints individuals, subject to council confirmation, to perform the duties previously performed by certain elected officeholders, including the county recorder. The former county offices would be abolished when the appointed individual took office on or after January 1, 2011.

{¶ 5} Then County Recorder, Judge Lillian Greene, an elected officeholder whose four-year term would be terminated before its expiration date when the new form of government took effect, together with several electors, Norman G. Lange, Steve J. Lewis, and Janis Sapp, filed their lawsuit in June 2010. They claimed that the charter provisions abolishing elected offices in midterm constitute retroactive law and are therefore unconstitutional. They maintained that the officeholders have a right under the Ohio Constitution to fill the remainder of their elected terms of office and, further, that electors of the county have “a vested constitutional right to expect that an elected public official will hold office for the entire statutory term to which he or she was elected.”

{¶ 6} We begin our analysis with the constitutional and statutory basis of the structure of Cuyahoga County's government before and after the county electors' adoption of its charter.

[Ohio App.3d 773] Statutory Form of County Governance

{¶ 7} A county in Ohio has historically been regarded as a political subdivision of the state. See Schaffer v. Bd. of Trustees of Franklin Cty. Veterans Memorial (1960), 171 Ohio St. 228, 230, 168 N.E.2d 547; R.C. 2744.01. Article X of the Ohio Constitution provides for the organization of the counties. Article X, Section 1 states the following:

{¶ 8} “The general assembly shall provide by general law for the organization and government of counties, and may provide by general law alternative forms of county government. No alternative form shall become operative in any county until submitted to the electors thereof and approved by a majority of those voting thereon under regulations provided by law. Municipalities and townships shall have authority, with the consent of the county, to transfer to the county any of their powers or to revoke the transfer of any such power, under regulations provided by general law, but the rights of initiative and referendum shall be secured to the people of such municipalities or townships in respect of every measure making or revoking such transfer, and to the people of such county in respect of every measure giving or withdrawing such consent.” (Emphasis added.)

{¶ 9} Pursuant to the constitutional grant of authority, the General Assembly passed laws, codified under Title III of the Ohio Revised Code, that prescribe a general structure of county governance for those counties without a charter. The offices created by the General Assembly include the board of county commissioners, prosecuting attorney, sheriff, coroner, engineer, recorder, auditor, treasurer, and the clerk of court.

Alternative Form of County Governance Permitted

{¶ 10} The Ohio Constitution, however, permits the voters to adopt home rule and change the form of county governance through the adoption of a charter. This is set forth in Article X, Section 3, which governs a county charter and its approval by voters. Article X, Section 3 states:

{¶ 11} “The people of any county may frame and adopt or amend a charter as provided in this article but the right of the initiative and referendum is reserved to the people of each county on all matters which such county may now or hereafter be authorized to control by legislative action. Every such charter shall provide the form of government of the county and shall determine which of its officers shall be elected and the manner of their election. It shall provide for the exercise of all powers vested in, and the performance of all duties imposed upon counties and county officers by law. Any such charter may provide for the concurrent or exclusive exercise by the county, in all or in part of its area, of all or of any designated powers vested by the constitution or laws of Ohio in [Ohio App.3d 774] municipalities; it may provide for the organization of the county as a municipal corporation; and in any such case it may provide for the succession by the county to the rights, properties, and obligations of municipalities and townships therein incident to the municipal power so vested in the county, and for the division of the county into districts for purposes of administration or of taxation or of both. Any charter or amendment which alters the form and offices of county government or which provides for the exercise by the county of power vested in municipalities by the constitution or laws of Ohio, or both, shall become effective if approved by a majority of the electors voting thereon. In case of conflict between the exercise of powers granted by such charter and the exercise of powers by municipalities or townships, granted by the constitution or general law, whether or not such powers are being exercised at the time of the adoption of the charter, the exercise of power by the municipality or township shall prevail. A charter or amendment providing for the exclusive exercise of municipal powers by the county or providing for the succession by the county to any property or obligation of any municipality or township without the consent of the legislative authority of such municipality or township shall become effective only when it shall have been approved by a majority of those voting thereon (1) in the county, (2) in the largest municipality, (3) in the county outside of such municipality, and (4) in counties having a population, based upon the latest preceding federal decennial census of 500,000 or less, in each of a majority of the combined total of municipalities and townships in the county (not included within any township any part of its area lying within a municipality).”

Cuyahoga County's Change of County Governance

{¶ 12} Although Article X of the Ohio Constitution was amended in 1933 to permit counties in the state to adopt home rule, Cuyahoga County has historically operated under the statutory government form pursuant to Article X, Section 1 of the Ohio Constitution and Title III of the Ohio Revised Code.³ The elected nonjudicial officers of the county consisted of the auditor, recorder, treasurer, clerk of court, sheriff, coroner, engineer, prosecuting attorney, and three county commissioners. These officers were elected to four-year terms in the general elections held in November every two years.

{¶ 13} In the November 3, 2009 general election, Cuyahoga County voters exercised the right to adopt home rule granted in Article X, Section 3 of the Ohio Constitution and ratified “the Charter of Cuyahoga County.” The charter, [Ohio App.3d 775] effective on January 1, 2010, abolished the existing statutory county governance and adopted a new architecture of county government.

{¶ 14} Pursuant to the charter, the...