State ex rel.Whitehead v. Sandusky Cnty. Bd. of Comm'rs, 2012-1666
| Decision Date | 18 October 2012 |
| Docket Number | No. 2012-1666,2012-1666 |
| Citation | 2012 Ohio 4837 |
| Parties | THE STATE EX REL.WHITEHEAD ET AL., APPELLANTS, v. SANDUSKY COUNTY BOARD OF COMMISSIONERS ET AL., APPELLEES. |
| Court | Ohio Supreme Court |
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Whitehead v. Sandusky Cty. Bd. of Commrs.,
Slip Opinion No. 2012-Ohio-4837.]
Judicial offices—Legislative appointments unconstitutional—One-year term unconstitutional—Legislative creation and abolishment of courts— Severability of legislation—2012 Am.Sub. H.B. No. 509 unconstitutional insofar as it affects Sandusky County Court—Writ of mandamus to conduct election.
APPEAL from the Court of Appeals for Sandusky County,
No. S-12-022, 2012-Ohio-4484.
{¶ 1} This is an appeal from a judgment granting a writ of mandamus to compel appellees, the Sandusky County Board of Commissioners and theSandusky County Board of Elections, to hold a special election before January 1, 2013, to elect a judge for the newly created Sandusky Municipal Court, for a one-year term to commence on that date and with an election for a full six-year term to be held in November 2013. Because the court of appeals erred in granting the writ of mandamus to compel the special election, we reverse the judgment of the court of appeals in that regard and grant a writ of mandamus to compel the board of elections to accept the filed petitions and conduct the November 6, 2012 election for the judges of the Sandusky County Court. We affirm the judgment of the court of appeals insofar as the court held that a portion of the pertinent legislation is unconstitutional, but hold that the unconstitutional portion of the statute may not be properly severed. We also affirm the judgment of the court of appeals that appellants are not entitled to a writ of prohibition and that appellants are not entitled to an award of attorney fees.
{¶ 2} The Sandusky County Court comprises two districts, which are referred to as Sandusky County Court District No. 1, based in Clyde, and Sandusky County Court District No. 2, based in Woodville.1 http://www.sandusky-county.org/Clerk/County%20Courts. These districts have part-time judges, R.C. 1907.11(A), with Judge John P. Kolesar serving in District No. 1 and Judge Herbert Adams serving in District No. 2. See http://www.sandusky-county.org/Elected%20Officials/County%20Courts/default.asp. Judge Adams has reached the age of 70, and under the Ohio Constitution, Article IV, Section6(C),2 he cannot be reelected or reappointed judge. The judges are serving six-year terms, R.C. 1907.13, which are scheduled to expire in the absence of the legislation challenged here on December 31, 2012, and January 1, 2013. Former R.C. 1907.11(A), 2010 Sub.H.B. No. 338.
{¶ 3} In June 2012, the General Assembly enacted 2012 Am.Sub.H.B. No. 509 ("H.B. 509"), which abolishes the Sandusky County Court and establishes the Sandusky County Municipal Court effective January 1, 2013. R.C. 1907.11(A) ( ); R.C. 1901.01(H) (); 1901.02(A)(30) (); and R.C. 1901.02(B) ().
{¶ 4} H.B. 509 further amended R.C. 1901.08 to specify that the part-time judges of the Sandusky County Court will serve as part-time judges of the new Sandusky County Municipal Court for a one-year term when the new court is established and the old court is abolished effective January 1, 2013, and that the six-year term for the new full-time municipal court judgeship will be decided at an election held in 2013:
In the Sandusky county municipal court, one full-time judge shall be elected in 2013. Beginning on January 1, 2013, the two part-time judges of the Sandusky county county court that existed prior to that date shall serve as part-time judges of the Sandusky county municipal court until December 31, 2013. If either judgeship becomes vacant before January 1, 2014, that judgeship is abolished on the date it becomes vacant, and the person who holds the other judgeship shall serve as the full-time judge of the Sandusky county municipal court until December 31, 2013.
{¶ 5} The effective date of H.B. 509 was September 28, 2012.
{¶ 6} On July 10, 2012, appellants, Roy Whitehead, Michael Benton, Gregory S. Gerwin, and Richard A. Harman, filed a complaint in prohibition and mandamus and for a declaratory judgment in an expedited election matter in the Court of Appeals for Sandusky County. Appellants are Sandusky County taxpayers and are the chiefs of police and mayors of Woodville and Gibsonburg, which are within the territorial jurisdiction of both the existing county court and the municipal court established by H.B. 509.
{¶ 7} Appellants sought a declaratory judgment holding H.B. 509 to be unconstitutional, a writ of prohibition to prevent appellee Sandusky County Boardof Commissioners from expending funds for the municipal court created by H.B. 509, and a writ of mandamus to order appellee Sandusky County Board of Elections to accept petitions for the office of judge of the Sandusky County Court and to hold an election in November 2012, which is the regular election cycle for the county court.
{¶ 8} After the court of appeals granted an alternative writ and ordered appellees to file a response to appellants' complaint, appellants filed a motion for summary judgment in which they introduced evidence that three candidates had submitted petitions to run for the two judicial seats for the Sandusky County Court. Judge Kolesar submitted a petition for the District No. 1 seat that he currently occupies, and Beth Tischler and Mary Beth Fiser submitted petitions to run for the District No. 2 seat currently occupied by Judge Adams. The board of elections rejected all of the petitions, presumably because of H.B. 509.
{¶ 9} Following the submission of briefs pursuant to an expedited schedule, on September 27, the court of appeals declared that the amendment in H.B. 509 (R.C. 1901.08) providing for the one-year appointment of the two existing, part-time county court judges to the newly created municipal court on January 1, 2013 is unconstitutional because it provides for the legislative appointment of the judges to the new judgeship.
{¶ 10} The court determined that the unconstitutional amendment to R.C. 1901.08 is severable from the constitutional amendments to R.C. 1907.11(A) abolishing the Sandusky County Court and to R.C. 1901.01 and 1901.02 creating the Sandusky County Municipal Court. The court also determined that the unconstitutional portion of R.C. 1901.08 providing for the one-year appointment of the county court judges to the municipal court is severable from the constitutional portion of the statute providing for a 2013 election for the one fulltime judge of the municipal court.
{¶ 11} For its remedy, the court of appeals granted a writ of mandamus to compel the board of elections and the board of commissioners to hold a special election prior to January 1, 2013, to elect one full-time judge for the first year of the newly created municipal court, with an election for a full six-year term to be held in November 2013. The court of appeals also denied appellants' request for attorney fees.
{¶ 12} Five days later, on October 2, appellants filed this appeal. The next day, this court granted appellants' request for an expedited briefing schedule and invited the attorney general to file a brief expressing his views. _ Ohio St.3d _, 2012-Ohio-4560, _ N.E.2d _. The court later granted appellants' motion for a stay of the court of appeals' judgment ordering the special election pending the court's resolution of this appeal. __ Ohio St.3d _, 2012-Ohio-4662, __ N.E.2d
{¶ 13} The parties submitted briefs, and the attorney general declined the court's invitation to submit a brief. This cause is now before the court for our consideration of the merits.
{¶ 14} Initially, we have jurisdiction to address the merits of this appeal even though the court of appeals did not expressly rule on appellants' prohibition claim. The judgment of the court of appeals fully complied with R.C. 2505.02 and Civ.R. 54(B) notwithstanding its failure to specifically address appellants' prohibition claim. The judgment granting the writ of mandamus affected a substantial right and determined the action. R.C. 2505.02(B)(1). Appellants sought...
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