State ex rel. Herman v. Klopfleisch

• Decision Date: 26 July 1995
• Docket Number: No. 95-365,95-365
• Citation: 651 N.E.2d 995,72 Ohio St.3d 581
• Parties: The STATE ex rel. HERMAN v. KLOPFLEISCH, et al.
• Court: Ohio Supreme Court

Page 581

72 Ohio St.3d 581

651 N.E.2d 995

The STATE ex rel. HERMAN v. KLOPFLEISCH, et al.

No. 95-365.

Supreme Court of Ohio.

Submitted May 23, 1995.

Decided July 26, 1995.

In 1990, James R. Mustard spoke with Owen V. Hall, Chairman of the Mercer County Republican Party, about running for Mayor of Celina, Ohio, in 1991 as a Republican. Prior to that time, Mustard had always voted in the Democratic Party's primary elections. After discovering that he was precluded from running as a Republican, Mustard decided to run as a Democrat and then switch parties following the election.

In January 1991, Mustard filed a declaration of candidacy and petition for the Democratic Party nomination for the office of Mayor of Celina. Mustard declared that he was a member of the Democratic Party and that if elected mayor, he would "support and abide by the principles enunciated by the Democratic Party." Mustard won the Democratic Party primary election and was elected mayor at the 1991 general election. Mustard took office on January 1, 1992.

After becoming mayor, Mustard voted in the 1992 and 1994 Republican Party primary elections. He has not voted in a Democratic Party primary election since 1991. After May 1992, it was publicly announced that Mustard had switched to the Republican Party. At that time, he became a member of the Mercer County Republican Central Committee, and signed nominating petitions for Republican candidates.

On December 30, 1994, Mustard submitted his resignation as Mayor of Celina, effective January 9, 1995. A copy of his resignation letter was sent to Hall. After the office became vacant, the members of the Mercer County Democratic Party Central Committee selected relator, Henry Paul Herman, to fill the vacancy. The members of the Mercer County Republican Central Committee selected respondent, Craig Olen Klopfleisch, to fill the vacancy. Herman's and Klopfleisch's names were certified to the Mercer County Board of Elections.

After the board of elections deadlocked two-to-two on whether to appoint Herman or Klopfleisch to serve as mayor for the remainder of Mustard's term, the Secretary of State decided that a certificate of appointment should be issued to Klopfleisch for the office of Mayor of Celina. Klopfleisch became mayor on February 8, 1995.

McTigue & Brooks and Donald J. McTigue, Columbus, for relator.

Chester, Willcox & Saxbe, Charles R. Saxbe and Donald C. Brey, Columbus, for respondent Klopfleisch.

Betty D. Montgomery, Atty. Gen., and Andrew S. Bergman, Asst. Atty. Gen., for respondent Secretary of State.

PER CURIAM.

Herman instituted this action in quo warranto seeking Klopfleisch's ouster, and Herman's appointment to, the office of Mayor of Celina. We granted an alternative writ and allowed the Secretary of State to intervene as a respondent.

Herman asserts in his first proposition of law that when a person nominated at a primary election and subsequently elected mayor resigns, the vacancy is filled by the central committee of the political party that nominated the person.

"A person claiming to be entitled to a public office unlawfully held and exercised by another may bring an action therefor by himself or an attorney at law, upon giving security for costs." R.C. 2733.06. In order for a writ of quo warranto to issue, relator must establish (1) that the office is being unlawfully held and exercised by respondent, and (2) that relator is entitled to the office. State ex rel. Brenders v. Hall (1995), 71 Ohio St.3d 632, 633-634 646 N.E.2d 822, 824; State ex rel. Delph v. Barr (1989), 44 Ohio St.3d 77, 541 N.E.2d 59, syllabus.

R.C. 3.02(B) provides:

"When an elective office becomes vacant and is filled by appointment, the appointing authority shall * * * certify it to the board of elections * * *. The board of elections * * * shall issue a certificate of appointment to the appointee. * * *"

When the determination by a board of elections on the appointment results in a tie vote, the matter must be submitted to the Secretary of State, "who shall summarily decide the question and his decision shall be final." R.C. 3501.11(W).

The Secretary of State contends that R.C. 3501.11(W) precludes any judicial review of his decision to issue the certificate of appointment to Klopfleisch, since the Secretary of State's decision is "final." However, although the decision of the Secretary of State is not subject to appeal, it, like a decision of a board of elections, is subject to review in extraordinary actions to determine whether the Secretary of State engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes or applicable legal provisions. State ex rel. The Limited, Inc. v. Franklin Cty. Bd. of Elections (1993), 66 Ohio St.3d 524, 526, 613 N.E.2d 634, 635; State ex rel. Ruehlmann v. Luken (1992), 65 Ohio St.3d 1, 598 N.E.2d 1149; State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 5, 598 N.E.2d 1152.

In applying the applicable standard of review, there is no claim of fraud or corruption. In addition, relator concedes that the Secretary of State did not abuse his discretion in deciding that Klopfleisch was entitled to the appointment. Accordingly, the dispositive issue is whether the Secretary of State acted in clear disregard of the pertinent law, i.e., R.C. 733.08.

R.C. 733.08 provides:

"In case of the death, resignation, or removal of the mayor, the vacancy in the office of mayor shall be filled for the remainder of the unexpired term by a person chosen by the residents of the city who are members of the city central committee if there is one, or if not then of the county central committee, of the political party with which the last occupant of the office was affiliated. If the vacancy occurs because of the death, resignation, or inability to take office of a mayor-elect, an appointment to take office at the beginning of the term shall be made by the members of the central committee who reside in the city where the vacancy occurs.

" * * *

"If the last occupant of the office of mayor or the mayor-elect was elected as an independent candidate, the vacancy shall be filled by election by the legislative authority for the unexpired term." (Emphasis added.)

Respondents contend that R.C. 733.08 plainly and unambiguously gave the Mercer County Republican Central Committee authority to appoint a person to fill the vacancy for the office of Mayor of Celina because ex-mayor Mustard was "affiliated" with the Republican Party, even though he had been elected as a Democrat. Relator claims that R.C. 733.08 is ambiguous and that we should apply the statutory interpretation rules specified in R.C. 1.49.

In construing a statute, a court's paramount concern is the legislative intent. State ex rel. Solomon v. Police & Firemen's Disability & Pension Fund Bd. of Trustees (1995), 72 Ohio St.3d 62, 65, 647 N.E.2d 486, 488. "In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished." State v. S.R. (1992), 63 Ohio St.3d 590, 594-595, 589 N.E.2d 1319, 1323. If the meaning of a statute is unambiguous and definite, then it must be applied as written and no further interpretation is appropriate. Lake Hosp. Sys., Inc. v. Ohio Ins. Guar. Assn. (1994), 69 Ohio St.3d 521, 524-525, 634 N.E.2d 611, 614.

R.C. 733.08 allows city residents who are members of the county central committee "of the political party with which the last occupant of the office was affiliated" to fill a vacancy where the mayor dies, resigns, or is removed and there is no city central committee. At issue in this case is with what party ex-mayor Mustard was "affiliated." Words used in a statute must be taken in their usual, normal or customary meaning. State ex rel. Solomon, supra; see, also, R.C. 1.42. The word "affiliated" signifies a condition of being in close connection, allied, or associated as a member. See Black's Law Dictionary (6 Ed.1990) 58, defining "affiliate." Although Klopfleisch relies on R.C. 3513.19(A)(3) and 3513.05 to assert that "affiliated" unambiguously refers to the party primary election in which Mustard voted in the two years preceding his resignation, neither of these statutory definitions is made expressly applicable to R.C. 733.08 by direct statutory provision. Thus, "affiliated" as used in R.C. 733.08 has not "acquired a technical or particular meaning * * * by legislative definition or otherwise * * *." R.C. 1.42.

Applying the usual, normal and customary meaning of "affiliated," it is evident that R.C. 733.08 is ambiguous, in that it is unclear whether it refers to the party which the ex-mayor was affiliated with at the time he was elected or at the time he left office, and if it is the latter, what test to apply to determine party affiliation. Since R.C. 733.08 is ambiguous in this regard, the court may resort to the general rules of statutory interpretation to resolve the ambiguity.

The in pari materia rule of construction may be used in interpreting statutes where some doubt or ambiguity exists. State Farm Mut. Auto. Ins. Co. v. Webb (1990), 54 Ohio St.3d 61, 63-64, 562 N.E.2d 132, 134; State ex rel. Celebrezze v. Allen Cty. Bd. of Commrs. (1987), 32 Ohio St.3d 24, 27-28, 512 N.E.2d 332, 335. All statutes relating to the same general subject matter must be read in pari materia, and in construing these statutes in pari materia, this court must give them a reasonable construction so as to give proper force and effect to each and all of the statutes. United Tel. Co. v. Limbach (1994), 71 Ohio St.3d 369, 372, 643 N.E.2d 1129, 1131. Herman agrees that R.C. 733.08 should be read in pari materia with Ohio's election statutes.

R.C. 3513.19(A)(3) and 3513.05 relate to the same general subject matter as R.C. 733.08, i.e., "affiliation," for purposes of election-type issues. R.C. 3513.19 provides:

"(A) It is the duty of any witness or challenger and of any judge or clerk of elections and the right of...