State ex rel. Rocco v. Cuyahoga Cnty. Bd. of Elections, 2017–0315.
| Court | United States State Supreme Court of Ohio |
| Citation | 2017 Ohio 4466,151 Ohio St.3d 306,88 N.E.3d 924 |
| Docket Number | No. 2017–0315.,2017–0315. |
| Parties | The STATE ex rel. ROCCO v. CUYAHOGA COUNTY BOARD OF ELECTIONS, et al. |
| Decision Date | 27 June 2017 |
151 Ohio St.3d 306
88 N.E.3d 924
2017 Ohio 4466
The STATE ex rel. ROCCO
v.
CUYAHOGA COUNTY BOARD OF ELECTIONS, et al.
No. 2017–0315.
Supreme Court of Ohio.
Submitted April 4, 2017.
Decided June 27, 2017.
McTigue & Colombo, L.L.C., Donald J. McTigue, Columbus, J. Corey Colombo,
Derek S. Clinger, and Ben F.C. Wallace, for relator.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Charles E. Hannan, Assistant Prosecuting Attorney, for respondents.
O'DONNELL, J.
{¶ 1} Andrea Rocco filed a complaint seeking a writ of mandamus to compel the Cuyahoga County Board of Elections to issue a certificate of nomination and to certify her name for placement upon the November 7, 2017 ballot as a candidate for the city of Westlake's director of law.
{¶ 2} We conclude that Article IV, Section 4 of the Westlake City Charter, which states that the city's director of law shall have been "engaged in the active practice of law in Ohio for a period of six (6) years next preceding his election," requires the director of law to have been engaged in the active practice of law for any period of six years preceding election. Because Rocco satisfied this requirement, we hold that the board abused its discretion by sustaining the protests to her candidacy, and we grant a writ of mandamus to compel the board of elections to issue a certificate of nomination and to certify Rocco on the November 7 ballot as a candidate for the position of director of law for the city of Westlake.
Background
{¶ 3} In January 2017, Rocco filed nominating petitions and statements of candidacy to run for the position of Westlake Director of Law.
{¶ 4} Four protests were subsequently filed against her candidacy, contending that she did not meet requirements to hold the position of director of law. The protests alleged that the charter required the director of law to have been actively practicing law during the six years immediately preceding election to the office. Prior to seeking office, Rocco served for two years as the Cuyahoga County Clerk of Courts, between March 2013 and January 2015. The protests contended that Rocco's service as clerk of courts did not qualify as the active practice of law.
{¶ 5} Rocco argued that the charter requires a candidate merely to have actively practiced law for any six-year period prior to assuming office, and she noted that she has more than six years of continuous legal experience, including six years as an Ohio assistant attorney general, 20 months as a Lake County assistant prosecutor, and two years in private practice.
{¶ 6} The Cuyahoga County Board of Elections conducted a hearing on the protests on February 24, 2017 and, at the conclusion of the hearing, it voted two to one (with one member absent) to sustain the protests.
{¶ 7} On March 3, 2017, Rocco filed this original action for a writ of mandamus. She simultaneously filed a motion to expedite, which we granted. The parties have filed briefs, and Rocco has submitted evidence.
Provisions of the Westlake Charter
{¶ 8} The requirements to hold the office of director of law for the city of Westlake are provided in Article IV, Section 4 of the city charter, which states:
The Director of Law shall be a qualified elector at the time of his election, shall have been a resident of the City for at least eighteen (18) months immediately preceding his election, an attorney at law duly admitted to the practice of law before the courts of the State of Ohio, and been engaged in the active practice of law in Ohio for a period
of six (6) years next preceding his election.
(Emphasis added.)
{¶ 9} Contrary to the conclusion of the Cuyahoga County Board of Elections, this case does not involve interpretation of the phrase "active practice of law" but rather turns on when relative to the election the candidate must have engaged in the active practice of law.
A Period of Six Years
{¶ 10} The charter of the city of Westlake uses the phrase "for a period of six years" in describing the length of time that a candidate shall have engaged in the practice of law.
{¶ 11} In State ex rel. Mulholland v. Schweikert, 99 Ohio St.3d 291, 2003-Ohio-3650, 791 N.E.2d 448, ¶ 11, quoting In re Collier, 85 Ohio App.3d 232, 237, 619 N.E.2d 503 (4th Dist.1993), this court stated, " ‘The word "a" is an indefinite article that denotes a thing not previously noted or recognized, in contrast with "the," which denotes a thing previously noted or recognized.’ " See also Allstate Ins. Co. v. Freeman, 432 Mich. 656, 698, 443 N.W.2d 734 (1989), quoting Allstate Ins. Co. v. Foster, 693 F.Supp. 886, 889 (D.Nev.1988) (" ‘ "[a]" or "an" is an indefinite article often used in the sense of "any" and applied to more than one individual object; whereas "the" is an article which particularizes the subject spoken of’ ").
{¶ 12} In Mixon v. One Newco, Inc., 863 F.2d 846 (11th Cir.1989), a case in which a Georgia statute provided that a landowner could recover the mineral rights underlying his property by adverse possession if the mineral owner had "neither worked nor attempted to work the mineral rights nor paid any taxes due on them for a period of seven years since the date of the conveyance," Ga.Code Ann. 44–5–168(a), the United States Court of Appeals concluded that the Georgia legislature's "use of the indefinite article in its reference to ‘a period of seven years' as opposed to ‘the period’ indicates that any seven-year period of nonuse or nonpayment of taxes following the date of conveyance would suffice" (emphasis added), Mixon at 850.
{¶ 13} Similarly here, the use of the phrase "a period of six (6) years" in the Westlake City Charter as opposed to "the period of six (6) years" suggests that the director of law shall have been engaged in the active practice of law for any six year period preceding election. (Emphasis added.)
Next and Immediately Preceding
{¶ 14} The Westlake charter uses the phrase "immediately preceding" in reference to the residency requirement, but in the same sentence, it uses the phrase "next preceding" in reference to the practice of law requirement to hold the office of director of law. By using different words to describe these separate requirements, the drafters intended different meanings.
{¶ 15} In Metro Secs. Co. v. Warren State Bank, 117 Ohio St. 69, 76, 158 N.E. 81 (1927), this court determined that when certain language is used in one instance and wholly different language is used in another instance, it is "presumed that different results were intended."See also State v. Pope, 2017-Ohio-1308, 88 N.E.3d 584, ¶ 22 (2d Dist.) (rejecting claim that the terms "transport"
and "operate" are interchangeable); Farmer v. Berry, 2012-Ohio-4940, 981 N.E.2d 929, ¶ 15 (8th Dist.) (distinguishing "a person acting on the member's behalf" from "member"); State ex rel. Cordray v. Court of Claims, 190 Ohio App.3d 161, 2010-Ohio-4437, 941 N.E.2d 93, ¶ 27 (10th Dist.) (distinguishing "claimant" from "the attorney representing a claimant");
Huntington Natl. Bank v. 199 S. Fifth St. Co., L.L.C., 10th Dist. Franklin No. 10AP–1082, 2011-Ohio-3707, 2011 WL 3210289, ¶ 11, 18 (distinguishing the phrase "must produce the warrant of attorney * * * to the court" from the phrase "[t]he original or a copy of the warrant shall be filed with the clerk").
{¶ 16} Thus, the use of the phrase "shall have been a resident of the city for at least eighteen (18) months immediately preceding his election" in close proximity to the phrase "been engaged in the active practice of law in Ohio for a period of six (6) years next preceding his election" implies that the drafters of the charter intended to require of a candidate for director of law something other than having been engaged in the active practice of law for a period of six years "immediately preceding" the election. Otherwise, they would have used "immediately preceding" to refer to that requirement. But they did not do so.
{¶ 17} We conclude that because the Westlake City Charter uses the indefinite article "a," meaning any period, instead of the definite article "the" with respect to the six year period of active practice of law, it connotes that the director of law shall have been engaged in the active practice of law for any period of six years next preceding election, and because the city charter uses the words "next preceding" with respect to the practice of law requirement instead of the term "immediately preceding" as it does with respect to the residency requirement, it is presumed that different meanings were intended. And therefore, Article IV,...
To continue reading
Request your trial
-
State ex rel. Emhoff v. Medina Cnty. Bd. of Elections, s. 2018–0436
...to the definition of "the practice of law" in Gov.Bar R. I(9)(B). State ex rel. Rocco v. Cuyahoga Cty. Bd. of Elections , 151 Ohio St.3d 306, 2017-Ohio-4466, 88 N.E.3d 924, ¶ 19 (lead opinion).{¶ 21} Gov.Bar R. I(9)(B) provides that the "practice of law," for purposes of admitting an applic......
-
State ex rel. Nasal v. Miami Cnty. Bd. of Elections
...on six years of practice any time prior to 176 N.E.3d 48 taking the bench. See State ex rel. Rocco v. Cuyahoga Cty. Bd. of Elections , 151 Ohio St.3d 306, 2017-Ohio-4466, 88 N.E.3d 924, ¶ 17 (lead opinion) (construing similar language in the Westlake city charter). Lopez produced evidence o......
-
State ex rel. Nasal v. Miami Cnty. Bd. of Elections
...qualify based on six years of practice any time prior to taking the bench. See State ex rel. Rocco v. Cuyahoga Cty. Bd. of Elections, 151 Ohio St.3d 306, 2017-Ohio-4466, 88 N.E.3d 924, ¶ 17 (lead opinion) (construing similar language in the Westlake city charter). Lopez produced evidence of......