State ex rel. King v. Summit Cty. Council

Decision Date25 June 2003
Docket NumberNo. 2003-0023.,2003-0023.
Citation2003 Ohio 3050,789 N.E.2d 1108
PartiesTHE STATE EX REL. KING ET AL., APPELLEES, v. SUMMIT COUNTY COUNCIL ET AL., APPELLANTS.
CourtOhio Supreme Court

APPEAL from the Court of Appeals for Summit County, No. 21140.

Hahn, Loeser & Parks, L.L.P., Stephen E. Chappelear, Andrew S. Pollis and Erica L. Calderas, for appellants.

Amer Cunningham Co., L.P.A., Betty J. Konen, Jack Morrison Jr., and Mark G. Stasitis, for appellees.

Per Curiam.

{¶1} In May 2001, appellant Summit County Council adopted a resolution to submit a proposed Summit County Charter amendment to county electors at the November 6, 2001 general election. This proposal, designated as Issue 2 on the election ballot, sought to amend the charter by transferring the county auditor's powers and duties to the county treasurer, who would be renamed the county fiscal officer. Issue 2 also specified the qualifications for the county fiscal officer as being an elector of the county and not holding or accepting other employment or public office:

{¶2} "Election. The County Fiscal Officer shall be elected beginning at the general election held in the County in 2004 and shall hold office for a term of four years commencing on the first day of January next following such election. Any candidate for election as County Fiscal Officer shall be an elector of the County at the time of the declaration of candidacy, shall be nominated and elected in the manner provided by the general law for county officers and during the entire term of office shall remain an elector of the County and shall not, except as authorized by County Council, hold or accept other employment or public office." (Emphasis added.)

{¶3} Appellees, Summit County Council Member Michael J. King, Kristina L. Vickers, and Brian K. Hatfield, who are all Summit County electors and residents, proposed a substantially similar charter amendment, which specified that the county fiscal officer must be a certified public accountant ("C.P.A."). This amendment was designated as Issue 4 on the November 6, 2001 election ballot. The language of Issue 4 adding the C.P.A. requirement provided:

{¶4} "* * *

{¶5} "(2) County Fiscal Officer.

{¶6} "* * *

{¶7} "(c) Election. The County Fiscal Officer shall be elected beginning at the general election held in the County in 2004 and shall hold office for a term of four years commencing on the first day of January next following such election. Any candidate for election as County Fiscal Officer shall be an elector of this County and a Certified Public Accountant at the time of the declaration of candidacy, shall be nominated and elected in the manner provided by general law for county officers and during the entire term of office shall remain an elector of the County and shall not, except as authorized by County Council, hold or accept any other employment or public office.

{¶8} "(d) Vacancy. In the event the Office of County Fiscal Officer becomes vacant * * * the position shall be filled as provided by general law for elected officers, provided that no person shall hold the office of County Fiscal Officer who is not a Certified Public Accountant.

{¶9} "* * *

{¶10} "(g) Eligibility for candidacy for the Office of County Fiscal Officer. No person shall be eligible as a candidate for the office of County Fiscal Officer or shall be elected or appointed to such office unless such a person is a Certified Public Accountant." (Emphasis added.)

{¶11} Proponents of Issue 4 recommended that electors vote against Issue 2 because its passage would "lower professional qualifications" for the new county fiscal officer. On the November 6, 2001 ballot, however, the issues were not presented as competing alternatives:

"2 PROPOSED CHARTER AMENDMENT SUMMIT COUNTY

A majority affirmative vote is necessary for passage.

{¶12} "Shall the County Charter be amended to consolidate the Office of County Auditor with the County Treasurer and transfer its powers and duties to the County Treasurer, to be renamed 'County Fiscal Officer,' effective upon a vacancy in the county Auditor's office or on March 10, 2003, whichever is earlier?"

"4 PROPOSED CHARTER AMENDMENT SUMMIT COUNTY

A majority affirmative vote is necessary for passage.

{¶13} "Shall Sections 2.03(11), 3.03 (10), 4.01, 9.01, 10.01 of the Summit County Charter be amended to consolidate the Office of County Auditor with the County Treasurer and transfer its powers and duties to the County Treasurer, to be renamed `County Fiscal Officer,' and provide that no person shall be eligible as a candidate for the office of County Fiscal Officer or shall be elected or appointed to such office unless such person is a Certified Public Accountant, effective upon a vacancy in the County Auditor's office or on March 10, 2003, whichever is earlier?" (Emphasis added.)

{¶14} At the November 6, 2001 election, both issues passed. Issue 2, however, received a higher affirmative vote than Issue 4. Issue 2 received 60,623 votes, or 52.59 percent, in its favor, and Issue 4 received 56,693 votes, or 50.52 percent, in its favor.

{¶15} King subsequently requested an opinion from Summit County Prosecuting Attorney Sherri Bevan Walsh concerning the legal effect of the election results. Walsh advised that only Issue 2 was controlling and should be codified. She concluded that under Section 4, Article X of the Ohio Constitution, Issue 2 conflicted with Issue 4 regarding the qualifications for county fiscal officer and because it received more votes than Issue 4, Issue 2 prevailed. In March 2002, Summit County Council enacted Ordinance 2002-084, effective April 3, 2002, which adopted Issue 2 as an amendment to the county charter. King voted against the codification of Issue 2.

{¶16} Two months later, in May 2002, appellees demanded that Walsh "take appropriate legal action" to implement Issue 4, including its requirement that the county fiscal officer be a C.P.A. On May 6, 2002, Walsh denied appellees' request. On June 12, 2002, the county auditor notified the Summit County Council that he was resigning effective June 15. The county treasurer then took office as the first Summit County Fiscal Officer.

{¶17} On June 13, 2002, appellees filed a complaint for a writ of mandamus and an R.C. 309.13 taxpayers' suit in the Court of Appeals for Summit County. Appellees requested a writ of mandamus to compel appellees, Summit County Council, its clerk, and the Summit County Executive, as well as Walsh, to implement Issue 4 as a valid Summit County Charter amendment. Appellees also requested a writ of mandamus compelling these named respondents and the county fiscal officer to perform their duties consistent with the approved issues and to comply with the charter amendment's C.P.A. requirement. Appellees further requested an award of costs and attorney fees.

{¶18} In December 2002, the court of appeals granted appellees a writ of mandamus to compel the Summit County Council, its clerk, and the Summit County Executive to implement Issue 4 as an amendment to the Summit County Charter. The court of appeals denied the remainder of appellees' claims, including their R.C. 309.13 taxpayers' claim and their claims against the county prosecutor and the county fiscal officer.

{¶19} This cause is now before the court upon the appeal as of right of the county council, its clerk, and the county executive.

Striking the Reply Brief

{¶20} Appellants correctly assert that the court of appeals erred in striking their November 27, 2002 reply brief in support of their summary judgment motion.

{¶21} The court of appeals sua sponte struck appellants' reply brief on the stated basis that it had earlier ordered that each side file one summary judgment motion and one brief in opposition to the other side's motion, with no further reply briefs to be considered. A review of the court's previous entry, however, establishes that appellants' reply brief was permitted:

{¶22} "Respondents shall respond to Relators' motion for summary judgment and may move to dismiss and/or move for summary judgment * * *. Relators may respond to a dispositive motion filed by Respondents within twenty days of service of the motion upon them. Both parties may file one reply brief to address new matters raised in the opposing parties' memoranda against any dispositive motions filed. No further reply briefs will be considered." (Emphasis added.)

{¶23} Appellees claim that the reply brief did not concern new matters. But the court of appeals did not rely on this basis to strike the reply brief.

{¶24} Therefore, the court of appeals abused its discretion by striking appellants' reply brief. Nevertheless, this error would not necessarily prejudice appellants if their substantive contentions lack merit. See State ex rel. Gabriel v. Youngstown (1996), 75 Ohio St.3d 618, 619, 665 N.E.2d 209, quoting Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. (1942), 140 Ohio St. 160, 23 O.O. 369, 42 N.E.2d 758, syllabus. Consequently, we must examine appellees' mandamus claim to determine whether the court of appeals correctly granted the writ. State ex rel. Denton v. Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861, 784 N.E.2d 99, at ¶ 19.

Laches

{¶25} Appellants contend that by delaying more than eight months after the November 6, 2001 election to file their mandamus action in the court of appeals, laches barred their claim. We have held that "[t]he public interest in having election cases decided even * * * after an election has already been held, requires extreme promptitude."...

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