State ex rel. Battin v. Bush, 87-1903

• Decision Date: 30 December 1988
• Docket Number: No. 87-1903,87-1903
• Citation: 533 N.E.2d 301,40 Ohio St.3d 236
• Parties: The STATE ex rel. BATTIN et al., Appellants, v. BUSH et al., Appellees.
• Court: Ohio Supreme Court

Page 236

40 Ohio St.3d 236

533 N.E.2d 301

The STATE ex rel. BATTIN et al., Appellants, v. BUSH et al., Appellees.

No. 87-1903.

Supreme Court of Ohio.

Submitted Oct. 26, 1988.

Decided Dec. 30, 1988. ^*

Syllabus by the Court

1. R.C. 305.03, as amended, is, by its terms, self-executing. Upon the happening of the enumerated events, the office is then vacant, without resort to any legal proceeding such as quo warranto.

2. R.C. 305.03, as amended, was not intended to be applied other than prospectively. Accordingly, the earliest date from which consecutive days of absence from the performance of official duties may be calculated is the effective date of such amendment, April 15, 1986.

The facts giving rise to the within action begin with the election of Thomas R. Battin to the office of County Commissioner of Trumbull County on November 6, 1984. He took office on January 3, 1985 and was to serve a four-year term. On June 6, 1985, Battin was seriously injured in an automobile accident which left him incapacitated. It was undisputed at trial that at no time after the accident had Battin been able to, nor did he, resume his duties as a county commissioner.

On September 5, 1985, and pursuant to former R.C. 305.03, ¹ a physician's certificate was filed with appellee Board of Trumbull County Commissioners, which stated that Battin had been absent because of injury. On February 14, 1986, appellee county auditor refused to give any further paychecks to Battin. Application for a writ of mandamus was filed on February 21, 1986 in the trial court to command the auditor to issue paychecks to Battin. After the auditor asserted that Battin lacked capacity to file the action because of mental incapacity, Karen S. Battin was appointed by the trial court as Battin's guardian ad litem. Also, the county prosecutor filed an action in quo warranto in this court, case No. 86-279, on February 25, 1986. Later, on April 30, 1986, the prosecutor filed an application to dismiss the action, which we granted on May 5, 1986.

The General Assembly then enacted emergency legislation which amended R.C. 305.03. ² This measure was signed into law by the Governor on April 15, 1986 and was then effective. By letter dated April 15, the county prosecutor advised the auditor that Battin's office should be deemed vacant and that he should be deleted from the payroll. Appellee Trumbull County Democratic Party Central Committee announced its intention to meet on April 24, 1986 for the express purpose of appointing someone to fill the vacancy.

The original complaint in mandamus was, on April 17, 1986, supplemented to substitute Karen Battin, guardian, as party plaintiff and to include requests for a declaratory judgment as well as injunctive relief. The declarations sought were that the amended statute was unconstitutional, or not applicable to Thomas Battin, and that the office he was elected to was not vacant. The trial court convened hearings upon the matter on April 18 and 21 before rendering judgment on April 24. The court found that the statute as amended was constitutional, was validly applied to declare the seat at issue vacant, and that the office had been vacated under such statute as of April 15, 1986. Also, the court found that the guardian ad litem had no standing to assert claims on behalf of Thomas Battin because the rights asserted were personal to him alone.

According to the parties, the county Democratic Party met on April 24, 1986, and the next day, its appointee, Christopher S. Lardis, was sworn in to the office declared vacant. On that date, Karen Battin filed an application for a writ of quo warranto in the court of appeals seeking ouster of Lardis from the office to which he was appointed. This action was ultimately stayed pending appellate review of the trial court's determinations.

Karen Battin filed her appeal in the instant cause on May 15, 1986. On October 1, 1987, the court of appeals reversed the decision of the trial court. The court found that the sole remedy available in an action questioning the right of one to hold public office was one in quo warranto. Since this kind of action may be filed only in the court of appeals or the Supreme Court pursuant to R.C. 2733.03, ³ it was concluded that the trial court was without jurisdiction in the matter and the cause was remanded for dismissal of the supplemental complaint.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Richards, Ambrosy & Frederika and Charles L. Richards, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Andrew I. Sutter, for appellee Atty. Gen.,

Dennis Watkins, Pros. Atty., for appellees Board of County Commissioners, Anthony Latell, Arthur Magee and County Auditor Edward Bush.

Comstock, Springer & Wilson and Thomas J. Wilson, for appellee Trumbull County Democratic Party Central Committee.

Thomas C.B. Letson, for appellee William J. Timmins, Chairman, Trumbull County Democratic Party Central Committee.

HOLMES, Justice.

The court of appeals found by its opinion that the within action was one which had as its ultimate goal the litigation of one's right to hold a public office. It reasoned, therefore, that the action sounded in quo warranto, over which actions trial-level courts are without jurisdiction. Because we find that the within action was not one to try title to a public office, and for the reasons set forth hereinafter, we reverse the judgment of the court of appeals.

Initially, we shall consider the jurisdiction of the trial court over the subject matter of the within action, and more particularly, whether the appropriate action should have been one in quo warranto or for declaratory judgment. In considering an action for a writ of quo warranto, we note that the authority to hear such an action is granted in Sections 2 and 3, Article IV of the Ohio Constitution. ⁴ Jurisdiction is statutorily established under R.C. 2733.03 ⁵ as exclusively vested in the courts of appeals and the Supreme Court. See, e.g., State, ex rel. Lindley v. The Maccabees (1924), 109 Ohio St. 454, 2 Ohio Law Abs. 181, 142 N.E. 888. As pointed out by the court of appeals, the courts of common pleas are without jurisdiction over actions in quo warranto. State, ex rel. Maxwell, v. Schneider (1921), 103 Ohio St. 492, 134 N.E. 443.

The writ itself is a high prerogative writ and is granted, as an extraordinary remedy, where the legal right to hold an office is successfully challenged. State, ex rel. St. Sara Serbian Orthodox Church, v. Riley (1973), 36 Ohio St.2d 171, 173, 65 O.O.2d 395, 396, 305 N.E.2d 808, 810; State, ex rel. Cain v. Kay (1974), 38 Ohio St.2d 15, 16-17, 67 O.O.2d 33, 34, 309 N.E.2d 860, 862. The actual remedy afforded is that of ouster from the public office. R.C. 2733.14. ⁶ Furthermore, quo warranto is the exclusive remedy by which one's right to hold a public office may be litigated. State, ex rel. Hogan, v. Hunt (1911), 84 Ohio St. 143, 95 N.E. 666, paragraph one of the syllabus. To obtain such a writ, one must demonstrate that he "is entitled to the [public] office and that the office is unlawfully held by the respondent in the action." State, ex rel. Cain, supra, 38 Ohio St.2d at 17, 67 O.O.2d at 34, 309 N.E.2d at 862.

A review of R.C. 305.03 demonstrates that an office may be deemed to have been vacated as a matter of law without the need to resort to a proceeding in quo warranto. R.C. 305.03(A), as amended, provides that: "Whenever any county officer fails to perform the duties of his office for ninety consecutive days, * * * his office shall be deemed vacant." The inquiry established by this statute is not whether one has the right to a particular office but whether, upon certain facts, he has abandoned the office. The focus is upon the office, and whether it is being occupied, and not upon any one person who may be entitled to hold such office. Furthermore, the statute deems the office to be vacant automatically, upon the occurrence of the statutorily determined events. Thus, while one may have been lawfully elected to an office, vested with the authority of the office and fully entitled to occupy it for a set time, nevertheless, an official may abandon his office. In such event, pursuant to the provisions of R.C. 305.03, an action in quo warranto would be unnecessary.

This view is buttressed by our opinion in State, ex rel. Trago, v. Evans (1957), 166 Ohio St. 269, 2 O.O.2d 109, 141 N.E.2d 665. In that case, a vacancy was declared pursuant to then effective R.C. 305.03 because the elected sheriff, who was incarcerated in another county, had been absent from the county for ninety consecutive days. The county commissioners, pursuant to the above statute, declared the office vacant and appointed a new sheriff to fill the vacancy. Upon his release from jail, the relator filed an action for a writ of quo warranto to oust such appointed person from the office of sheriff. We upheld the denial of the writ, finding that the vacancy had been created by operation of law, leaving a mere ministerial duty to appoint someone to fill the office. In so holding, we determined that the occurrence of a vacancy in a public office under R.C. 305.03 has no relation to an action for the removal of an office holder pursuant to a writ of quo warranto. There being authority in the trial court to determine, by declaratory judgment, those matters presented below, including whether a vacancy in the office had occurred, we accordingly reverse the decision of the court of appeals.

II

We now consider whether the trial court had jurisdiction over the person of appellant. Appellees assert, as they did in the trial court, that the guardian ad litem had no standing to bring an action in the name of the elected office holder. The trial court agreed with this view, finding that the office and emoluments thereof were personal to the now incompetent ward. No doubt the court was troubled by the anomaly of one...