State ex rel. Flynn v. Board of Elections of Cuyahoga County

• Citation: 57 O.O. 402,164 Ohio St. 193,129 N.E.2d 623
• Decision Date: 14 October 1955
• Docket Number: No. 34592,34592
• Parties: , 57 O.O. 402 The STATE ex rel. FLYNN v. BOARD OF ELECTIONS OF CUYAHOGA COUNTY et al.
• Court: United States State Supreme Court of Ohio

Page 193

164 Ohio St. 193

129 N.E.2d 623, 57 O.O. 402

The STATE ex rel. FLYNN v. BOARD OF ELECTIONS OF CUYAHOGA COUNTY et al.

No. 34592.

Supreme Court of Ohio.

Oct. 14, 1955.

Syllabus by the Court

1. Section 3501.11, Revised Code, providing that each board of elections shall 'review, examine, and certify the sufficiency and validity of petitions and nomination papers,' and Section 3513.262, Revised Code, which provides that each board of elections shall 'examine and determine the sufficiency of the signatures on the petition papers transmitted to or filed with it'; that 'all other matters affecting the validity or invalidity of such petition papers shall be determined by the Secretary of State or the board with whom such petition papers were filed'; that written protests against nominating petitions may be filed 'with the election officials with whom the nominating petition was filed'; and that, upon filing of such protest and after notice, 'such election officials shall hear the protest and determine the validity or invalidity of the petition' and 'such determination shall be final'; authorize and require a board of elections to conduct a hearing on a protest against the nominating petition of a candidate who is alleged to be ineligible to assume the office sought, if elected, and to determine the validity of such petition; and the decision of such board is final and, in the absence of allegations of fraud, corruption, abuse of discretion or a clear disregard of statutes or legal provisions applicable thereto, is not subject to judicial review.

2. Section 1901.06, Revised Code, which provides in part that 'a municipal judge during his term of office shall be a qualified elector and a resident of the territory of the court to which he is elected or appointed, and shall have been admitted to the practice of law in the state and shall have been actively engaged in the practive of law as his principal occupation for at least five years,' is not violative of the Constitution of Ohio.

3. A candidate for the office of municipal judge who was admitted to the practice of law in 1925 and was employed on a full-time basis as a referee of the Cleveland Municipal Court from 1927 until 1954, and whose duties as such referee consisted of hearing after-judgment proceedings, garnishments and the settlement of causes, and performing other duties of a judicial nature, and whose decisions on these matters were subject to the approval of a judge of such court, was not 'actively engaged in the practive of law as his principal occupation for at least five years,' as required by Section 1901.06 Revised Code, and is ineligible for election to the office of municipal judge.

John James Brown and Neil W. McGill, Cleveland, for relator.

Frank T. Cullitan, Prosecuting Attorney, and Saul S. Danaceau, Cleveland, for respondents.

This is an action instituted originally in this court and seeking a writ of mandamus requiring the respondents, Board of Elections or Cuyahoga County and Dan W. Duffy, Alexander L. DeMaioribus, Ben C. Green, Philmore J. Haber, Ray C. Miller and Tom L. Terrell, as the duly appointed, constituted and acting members and clerks of the board, to cause the name of relator, Thomas F. Flynn, to be printed on the ballot for Judge of the Cleveland Municipal Court for the term commencing January 2, 1956, to be used in the general election of the city of Cleveland on November 8, 1955. Issue is made on the petition of the relator, the answer of the respondents, the demurrer thereto, and an agreed statement of facts.

The petition alleges that the relator duly filed his nominating petitions which were properly executed in conformity with the laws of Ohio and the charter of the city of Cleveland, by which he was nominated as an independent candidate for Judge of the Cleveland Municipal Court, and that he accepted the nomination by written statement; that the respondents illegally and in gross abuse of any discretion granted to the board by law heard and allowed a protest against his candidacy based on the sole ground of relator's insufficient experience in the active practice of law and the respondents refused to accept his name to be printed on the official ballot for said election; and that the respondents based their action on the provisions of Section 1901.06, Revised Code, which provides in part:

'A municipal judge during his term of office shall be a qualified elector and a resident of the territory of the court to which he is elected or appointed, and shall have been admitted to the practice of law in the state and shall have been actively engaged in the practice of law as his principal occupation for at least five years. The requirement relative to active practice of law does not apply to any judge holding office on June 13, 1951, and who is subsequently a candidate to succeed himself.'

Relator says that he is a qualified elector of the city of Cleveland; that he was duly admitted to the practice of law by the Supreme Court of Ohio on January 12, 1925; that since 1927 he has performed the duties of referee in the Cleveland Municipal Court and continued until his retirement on July 31, 1954, as a regularly appointed and sworn referee of the Cleveland Municipal court; that relator has, since his admission to the practice of law in Ohio, undertaken and completed legal consultations, drafting of papers and advocacy of causes before the Probate and Common Pleas Courts of the state of Ohio, such as were not in conflict with his duties in the Cleveland Municipal Court or contrary to the rules of said Court, to the approximate total of 4,000 substantial legal problems; and that on April 25, 1949, he was admitted to practice before the Supreme Court of the United States.

Relator pleads that Section 1901.06, Revised Code, so far as it provides for the five-year active practice qualification for the office of judge of a Municipal Court is an invasion of a branch of the judicial power, is contrary to explicit provisions of the Constitution of the state of Ohio and is therefore void; and that the respondents have a clear legal duty to cause relator's name to be printed on said ballot.

The answer of the respondents admits that the relator filed his petitions for nomination as a candidate for the office of Judge of the Cleveland Municipal Court; that a protest against such petitions and the qualifications of the relator as a candidate for Judge of the Cleveland Municipal Court was filed with the Board of Elections of Cuyahoga County by a qualified elector; that, following such protest and notice to the relator and the protester, a hearing was had in the offices of the Board of Elections of Cuyahoga County on September 7, 1955; that the said board of elections found that the relator does not possess the qualifications for a Municipal Court judge as provided in Section 1901.06, Revised Code; that the board of elections is charged with the duty of determining the sufficiency and validity of the petitions and papers of candidates; that it has determined that the relator does not possess the necessary qualifications to be elected and to hold the office of Judge of the Cleveland Municipal Court for the term beginning January 2, 1956; and that said nominating papers of the relator are invalid and that in pursuance to law the protest was allowed.

The evidence taken before the board of elections at the hearing on September 7, 1955, was adopted by the parties as an agreed statement of facts and is in substantial agreement with the allegations in the pleadings as set forth above. Evidence was adduced which disclosed the duties performed by the relator as referee.

These duties consisted mainly of the hearing of after-judgment proceedings, garnishments, proceedings in aid of execution and motions of various kinds. In some instances relator acted upon settlements of cases and passed upon demurrers and acted in a more or less judicial capacity in hearing these matters, and his decisions were stamped with the name of the judge.

The relator testified that he was paid a salary at all times for these services; that he had civil service status during the entire period of his employment; and that his duties occupied a full working day. Relator admits that his services in the Cleveland Municipal Court were his chief occupation but contends that the services rendered as referee and those performed in private law practice contituted active engagement in the practice of law as his principal occupation.

MATTHIAS, Judge.

The consideration of the claims made by the relator as to the alleged unconstitutionality of Section 1901.06, Revised Code, is necessarily of first importance. Relator contends that the act invades the power of the judiciary and is in violation of Section 32, Article II of the Constitution of Ohio, which provides that 'the general assembly shall grant no divorce, nor exercise any judicial power not herein expressly conferred', and Section 1, Article IV, which provides that 'the judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas, courts of probate, and such other courts inferior to the courts of appeals as may from time to time be established by law.'

This question is not one of first impression in this court. In the case of State ex rel. Lippincott v. Metzger, 137 Ohio St. 307, 29 N.E.2d 361, claim was made that the General Assembly is without power to fix the qualifications of probate judges for office and to require as a prerequisite that such judges be admitted to the practice of law or have prior service as a judge.

This court held in the per curiam opinion that 'the qualifications for the office of probate judge not having been prescribed by the Constitution, the General Assembly has power to fix and determine the essential qualifications for the office.'

The Constitution is likewise silent as to the qualifications of municipal judges.

Accordingly, Section...