State ex rel. Swanson v. Maier

• Decision Date: 06 November 2013
• Docket Number: No. 2013–0274.,2013–0274.
• Citation: 137 Ohio St.3d 400,999 N.E.2d 639
• Parties: The STATE ex rel. SWANSON v. MAIER.
• Court: Ohio Supreme Court

137 Ohio St.3d 400

999 N.E.2d 639

The STATE ex rel. SWANSON

v.MAIER.

No. 2013–0274.

Supreme Court of Ohio.

Submitted July 9, 2013

Decided Nov. 6, 2013

Writ granted.

Pfeifer, J., filed a dissenting opinion, with which O'Neill concurred.Baker, Dublikar, Beck, Wiley & Mathews, Gregory A. Beck, and James F. Mathews, North Canton, for relator.

Roetzel & Andress, L.P.A., Thomas L. Rosenberg, and Michael R. Traven, Columbus, for respondent.

PER CURIAM.

{¶ 1} This is a case in quo warranto challenging the qualifications of George T. Maier, who was appointed to the office of Stark County sheriff.

{¶ 2} The person elected in 2012 to the office of Stark County sheriff, Michael A. McDonald, could not assume the office for health reasons.The Stark County commissioners, under R.C. 311.01 and 305.02(F), appointed relator, Timothy A. Swanson, as acting sheriff until someone could be appointed to occupy the office.Because the sheriff-elect was a Democrat, the Stark County Democratic Central Committee(“DCC”) was responsible for appointing a qualified person to occupy the office under R.C. 305.02(B).One of the applicants for the appointment was respondent, George T. Maier.Despite concerns expressed by several members at the DCC meeting that Maier did not meet the qualifications for county sheriff, the DCC appointed him.

{¶ 3} Swanson filed this original action in quo warranto, claiming that Maier does not meet the qualifications to assume the office of sheriff and that Swanson remains acting sheriff and therefore has standing to bring this action.

{¶ 4} Because Maier fails to meet the statutory qualifications to be a county sheriff, we grant the writ of quo warranto and reinstate Swanson as acting sheriff of Stark County until the DCC appoints a qualified person.

Facts¹

{¶ 5} Swanson served as sheriff of Stark County from 1999 until February 2013.He was appointed to the position in 1999 and was elected in 2000, 2004, and 2008.He decided not to run in 2012.

{¶ 6} At the 2012 election, Michael A. McDonald, a Democrat, was elected sheriff, but before he could take office in January 2013, he notified the Stark County commissioners that for health reasons, he would not be able to assume the duties of sheriff.

{¶ 7} Under R.C. 311.01 and 305.02(F), the county commissioners were authorized to appoint an acting sheriff until a sheriff could be appointed by the DCC.The Stark County commissioners appointed Swanson acting sheriff.Swanson took the oath and was bonded as acting sheriff.

{¶ 8} Because the sheriff-elect was a Democrat, R.C. 305.02(B) gives the DCC authority to appoint a qualified person to assume the office of sheriff in place of the sheriff-elect.Three people submitted applications to the DCC to be appointed Stark County sheriff.Maier was one of these applicants.He submitted an application and supporting documents.

{¶ 9} On February 4, 2013, another applicant for the office, Lou Darrow, filed an action in prohibition in this court to restrain the DCC from proceeding with a meeting to appoint the sheriff, because he challenged Maier's qualifications.State ex rel. Darrow v. Stark Cty. Democratic Cent. Commt., Supreme Courtcase No. 2013–0211.This court ultimately dismissed that action on Darrow's application.134 Ohio St.3d 1461, 2013-Ohio-476, 982 N.E.2d 737.

{¶ 10} While the prohibition action was pending, the DCC held its meeting, on February 5, 2013, and voted under R.C. 305.02(B) for a replacement sheriff.Swanson alleges that the DCC made no effort to determine whether Maier met the qualifications for sheriff set forth in R.C. 311.01.

{¶ 11} At the DCC meeting, John D. Ferrero, a member of the committee who is also the Stark County prosecuting attorney, told the committee that it had a duty to determine whether the candidates met the qualifications for sheriff under the statute.Ferrero had reviewed Maier's qualifications and told the committee that he believed that Maier did not meet the statutory requirements for a candidate for sheriff.

{¶ 12} Maier received a majority of the committee vote for sheriff, and based on the vote, he assumed the office of Stark County sheriff.Swanson claims that because Maier was not legally qualified to assume the office of sheriff under R.C. 311.01, his appointment was a nullity, leaving Swanson the duly appointed acting sheriff until a qualified successor is properly appointed.

{¶ 13} As part of the process of being appointed sheriff, on January 16, 2013, Maier submitted an application to the Stark County Court of Common Pleas as required by R.C. 311.01(F)(1).The application presents the evidence that Maier claims shows that he meets the qualifications to be sheriff.Additional evidence was adduced at depositions.

{¶ 14} Maier was employed by the Ohio Department of Public Safety from May 21, 2007, to January 11, 2011.Most of Maier's tenure at the Department of Public Safety was as assistant director.He testified that from July 24, 2008, until January 7, 2011, he was a full-time agent for the Ohio Investigative Unit of the Department of Public Safety as part of his duties as the assistant director of the Department of Public Safety.He also supervised several investigative units of the department.From January 1 until January 11, 2011(11 days), he was interim director of the Department of Public Safety.

{¶ 15} Maier testified that he was “in the chain of command as the civilian authority” over the Ohio Investigative Unit, Ohio Homeland Security, and other peace-officer units.The superintendent of the Ohio Highway Patrol—who holds the rank of colonel—reported to Maier on active investigations, and Maier oversaw and helped manage those investigations.He also was an agent of and helped manage the Ohio Investigative Unit, which investigates liquor violations and food-stamp fraud.

{¶ 16} In addition, Maier was a deputy in the Harrison County sheriff's office in January 2013.He was in that position only a very short time and actually worked only two eight-hour shifts.He was also the safety and service director for the city of Massillon, starting in January 2012.

Analysis

A.Oral argument is unnecessary to decide this case

{¶ 17} Maier has moved for oral argument in this case.His only argument is that the issues are complex and oral argument would allow the parties to address any of the court's concerns.Swanson states that the evidence submitted is sufficient for the court to decide this case.We agree with Swanson.

{¶ 18}“Oral argument is not required in an original action in this court; instead, oral argument is discretionary in these cases.”State ex rel. Mun. Constr. Equip. Operators' Labor Council v. Cleveland,114 Ohio St.3d 183, 2007-Ohio-3831, 870 N.E.2d 1174, ¶ 42.“Nevertheless, we have discretion to grant oral argument pursuant to S.Ct.Prac.R. IX(2)(A)[now S.Ct.Prac.R. 17.02(A) ], and in exercising this discretion, we consider whether the case involves a matter of great public importance, complex issues of law or fact, a substantial constitutional issue, or a conflict among courts of appeals.”State ex rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 15.

{¶ 19} However, here, the parties' briefs and evidence are sufficient to resolve the issues raised in this case.SeeState ex rel. Allen v. Warren Cty. Bd. of Elections,115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507, ¶ 21.Therefore, we deny Maier's request for oral argument and proceed to the merits.

B. Swansonhas standing as a relator in quo warranto

{¶ 20} As a preliminary matter, Maier makes several arguments questioning Swanson's standing to file an action in quo warranto; all of these arguments lack merit.Quo warranto is the exclusive remedy to litigate the right of a person to hold a public office.State ex rel. Deiter v. McGuire,119 Ohio St.3d 384, 2008-Ohio-4536, 894 N.E.2d 680, ¶ 20;State ex rel. Ebbing v. Ricketts,133 Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶ 8, citingState ex rel. Johnson v. Richardson,131 Ohio St.3d 120, 2012-Ohio-57, 961 N.E.2d 187, ¶ 15.“ ‘To be entitled to the writ of quo warranto, the relator must establish that the office is being unlawfully held and exercised by respondent and that relator is entitled to the office.’ ”Id., quotingState ex rel. Zeigler v. Zumbar,129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 23.

{¶ 21} Maier argues that Swanson is not legally entitled to the office of county sheriff and lacks standing.We have held that to establish standing, a relator in quo warranto “need not prove his own title beyond all doubt.He need only establish his claim ‘in good faith and upon reasonable grounds.’ ”State ex rel. Hanley v. Roberts,17 Ohio St.3d 1, 6, 476 N.E.2d 1019(1985), quotingState ex rel. Ethell v. Hendricks,165 Ohio St. 217, 135 N.E.2d 362(1956), paragraph three of the syllabus;State ex rel. Halak v. Cebula,49 Ohio St.2d 291, 293, 361 N.E.2d 244(1977).However, “[a] mere possibility of appointment does not constitute entitlement in any way.”Id.

{¶ 22} Swanson asserts, and Maier does not disagree, that he was lawfully appointed acting sheriff.Swanson has asserted in good faith and on reasonable grounds that if Maier is ousted, he would be entitled to the office of county sheriff until a qualified sheriff is appointed by the DCC.He is not asserting “[a] mere possibility of appointment,” but rather that he was properly appointed as the acting holder of the office and that he still holds it pending the appointment of a qualified candidate by the DCC.

{¶ 23} Maier argues that Swanson is retired and has no interest in being sheriff of Stark County.However, Swanson's long-term intent to be retired is irrelevant.He does not assert that he is entitled to the office for its entire current term, but only until the DCC appoints a qualified applicant to occupy the office.

{¶ 24}We hold that Swanson has standing to bring this action in quo...