State ex rel. Rocco v. Cuyahoga Cty. Bd. of Elections (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Rocco v. Cuyahoga Cty. Bd. of Elections, Slip Opinion No. 2017-Ohio-4466.]
NOTICE
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.
SLIP OPINION NO. 2017-OHIO-4466THE STATE EX REL. ROCCO v. CUYAHOGA COUNTY BOARD OF ELECTIONS
ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Rocco v. Cuyahoga Cty. Bd. of Elections,
Slip Opinion No. 2017-Ohio-4466.]
Mandamus—Elections—Westlake City Charter—Qualifications for law director—
Writ granted.
(No. 2017-0315—Submitted April 4, 2017—Decided June 27, 2017.)
IN MANDAMUS.
________________
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.
SUPREME COURT OF OHIO
{¶ 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.
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{¶ 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. Mullholland 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
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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), where
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 where certain language is used in one
instance and wholly different language is used in another instance, it is “presumed
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that different results were intended.” See also State v. Pope, 2017-Ohio-1308, ___
N.E.3d ___, ¶ 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, ¶ 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,
Section 4 of the city charter requires that the director of law shall have been engaged
in the active practice of law in Ohio for any period of six years preceding election.
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{¶ 18} This interpretation is consistent with this court’s “duty to liberally
construe words limiting the right of a person to hold office in favor of those seeking
to hold office so that the public may have the benefit of choice from all qualified
persons.” State ex rel. Reese v. Cuyahoga Cty. Bd. of Elections, 115 Ohio St.3d
126, 2007-Ohio-4588, 873 N.E.2d 1251, ¶ 34.
Practice of Law by Rocco
{¶ 19} As to whether Rocco engaged in the active practice of law for any
six year period preceding the November 2017 election, Rule I, Section 9(B) of this
court’s Rules for the Government of the Bar of Ohio defines the “practice of law”
for purposes of admission to the bar without examination to include
(1) Private practice as a sole practitioner or for a law firm,
legal services office, legal clinic, or similar entity * * *;
(2) Practice as an attorney for a corporation, partnership,
trust, individual, or other entity, provided such practice * * *
involved the primary duties of furnishing legal counsel, drafting
legal documents and pleadings, interpreting and giving advice
regarding the law, or preparing, trying, or presenting cases before
courts, tribunals, executive departments, administrative bureaus, or
agencies;
(3) Practice as an attorney for the federal government, a
branch of the United States Government, or a state or local
government with the same primary duties as described in division
(B)(2) of this section.
{¶ 20} The evidence in this case establishes that Rocco did engage in the
active practice of law for a period of six years preceding the November 2017
election. Following her admission to the bar in November 1993, she worked as an
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January Term, 2017
attorney at the Cleveland law firm of McGinty, Gibbons, Hilow & Spellacy until
November 1995. She then served as an Assistant Attorney General in the Cleveland
office of the Ohio Attorney General from October 1995 to February 2002. From
April 2002 to April 2013, Rocco worked as a Prosecutor and Assistant Director of
the Westlake Law Department. She then served as the Cuyahoga County Clerk of
Courts from March 2013 to January 2015. And since September 2015, she has
served as counsel to the Ohio Patrolmen’s Benevolent Association. Thus, she has
practiced law for a period of six years next preceding the November 7, 2017
election.
{¶ 21} To obtain a writ of mandamus, a relator must demonstrate a clear
legal right to the relief requested, a clear legal duty on the part of the board to
perform an act, and the lack of an adequate remedy at law. State ex rel. Duncan v.
Portage Cty. Bd. of Elections, 115 Ohio St.3d 405, 2007-Ohio-5346, 875 N.E.2d
578, ¶ 8. “[T]o establish the requisite legal right and legal duty, [a relator] ‘must
prove that the board of elections engaged in fraud, corruption, abuse of discretion,
or clear disregard of statutes or other pertinent law.’ ” Id. at ¶ 9, quoting Rust v.
Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766,
¶ 8.
{¶ 22} Accordingly, Rocco has demonstrated that the board abused its
discretion by denying her a certificate of nomination. Therefore, we issue the
requested writ of mandamus to compel the board of elections to issue a certificate
of nomination and place Andrea Rocco on the November 7 ballot as a candidate for
law director of the city of Westlake.
Writ granted.
FRENCH, J., concurs.
O’NEILL, J., concurs in judgment only, with an opinion.
FISCHER, J., concurs in judgment only.
O’CONNOR, C.J., dissents, with an opinion.
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DEWINE, J., dissents, with an opinion joined by KENNEDY, J.
_________________
O’NEILL, J., concurring in judgment only.
{¶ 23} I concur in the judgment of the lead opinion; however, I would grant
the writ based on relator’s third proposition of law. The board abused its discretion
when it found that relator, Andrea F. Rocco, was not engaged in the active practice
of law during her tenure as the Cuyahoga County Clerk of Courts. This court has
stated that the practice of law “includes representation before a court, as well as the
preparation of pleadings and other legal documents, the management of legal
actions for clients, all advice related to law, and all actions taken on behalf of clients
connected with the law.” Cleveland Bar Assn. v. CompManagement, Inc., 111 Ohio
St.3d 444, 2006-Ohio-6108, 857 N.E.2d 95, ¶ 22. At the hearing challenging her
candidacy, Rocco asserted that while she was the Cuyahoga County Clerk of
Courts, she regularly provided legal advice to her governmental office, drafted
legal memoranda, and consulted state and local court rules to address various
problems in the office.
{¶ 24} That is the practice of law. Nowhere in the record before us is there
a scintilla of evidence to rebut that assertion. Based upon the record before us,
Rocco’s 21-month tenure as the Cuyahoga County Clerk of Courts easily falls
within this court’s definition of the practice of law, and the board has abused its
discretion by denying her a place on the November 2017 ballot. Accordingly, I
concur with the judgment of the lead opinion that Rocco is entitled to a writ of
mandamus, albeit on different grounds.
_________________
O’CONNOR, C.J., dissenting.
{¶ 25} The lead opinion contorts the rules of statutory construction to
achieve its desired result. But a straightforward application of the rules warrants
the opposite outcome. I dissent.
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January Term, 2017
{¶ 26} “ ‘The interpretation of statutes and administrative rules should
follow the principle that neither is to be construed in any way other than as the
words demand.’ We must read undefined words and phrases in context and
construe them in accordance with rules of grammar and common usage.” State ex
rel. Turner v. Eberlin, 117 Ohio St.3d 381, 2008-Ohio-1117, 884 N.E.2d 39, ¶ 14
(2008), quoting Morning View Care Ctr.-Fulton v. Dept. of Human Servs., 148
Ohio App.3d 518, 2002-Ohio-2878, 774 N.E.2d 300, ¶ 36; see also Jacobson v.
Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 8; Ohio
Neighborhood Fin., Inc. v. Scott, 139 Ohio St.3d 536, 2014-Ohio-2440, 13 N.E.3d
1115, ¶ 22; Davis v. Davis, 115 Ohio St.3d 180, 2007-Ohio-5049, 873 N.E.2d 1305,
¶ 14-15.1 But the lead opinion ignores the definitions and everyday usage of the
words “immediately” and “next.” Instead, the lead opinion hypothesizes that the
Westlake City Council used two different words to indicate a different intent. To
get there, the lead opinion borrows an analysis that has been used in a wholly
separate context: construing two discrete statutes or two terms with distinct
meanings. Metro. Secs. Co. v. Warren State Bank, 117 Ohio St. 69, 76, 158 N.E.
81 (1927) (determining whether an earlier or later statute applies when both, on
their faces, appear to govern a single activity but impose inconsistent
requirements); State v. Pope, 2d Dist. Montgomery No. 27231, 2017-Ohio-1308,
___ N.E.3d ___, ¶ 19, 22-23 (comparing the offenses of operating a vehicle while
under the influence of alcohol and improperly handling a firearm in a motor vehicle
while intoxicated and distinguishing the terms “transport” and “operate”); Farmer
v. Berry, 2012-Ohio-4940, 981 N.E.2d 929, ¶ 15 (8th Dist.) (comparing R.C. 145.32
to R.C. 145.35(C) and distinguishing “a person acting on the member’s behalf”
from “member”); State ex rel. Cordray v. Court of Claims, 190 Ohio App.3d 161,
1
Although many of the cited cases in this opinion interpret the Revised Code, we have previously
applied the Revised Code’s rules of statutory construction to local ordinances. See, e.g., Bosher v.
Euclid Income Tax Bd. of Rev., 99 Ohio St.3d 330, 2003-Ohio-3886, 792 N.E.2d 181, ¶ 14-15.
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2010-Ohio-4437, 941 N.E.2d 93, ¶ 27 (10th Dist.) (distinguishing “claimant” from
“the attorney representing a claimant” as used in two different subsections of a
statute); Huntington Natl. Bank v. 199 S. Fifth St. Co., L.L.C., 10th Dist. Franklin
No. 10AP-1082, 2011-Ohio-3707, ¶ 11, 18 (differentiating a requirement to
produce “the warrant” in one sentence of a statute from a requirement to file “[t]he
original or a copy of the warrant” in the last sentence of the statute and finding that
“[t]o conclude otherwise would render some of the words the legislature used in
the last sentence surplusage”).
{¶ 27} Relying on these inapposite cases, the lead opinion fails even to
consider the common usage or dictionary definitions of the terms “next” and
“immediately.” They are synonymous. See, e.g., Webster’s Third New
International Dictionary 1524 (2002). The lead opinion’s construction fails to give
any meaning to the word “next,” thereby abrogating our instruction that “all words
should have effect and no part should be disregarded,” D.A.B.E., Inc. v. Toledo-
Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536,
¶ 19. See also Beau Brummell Ties, Inc. v. Lindley, 56 Ohio St.2d 310, 311-312,
383 N.E.2d 907 (1978), quoting Columbus-Suburban Coach Lines, Inc. v. Pub.
Util. Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969) (“ ‘it is the duty of this
court to give effect to the words used [in a statute], not to delete words used or to
insert words not used’ ” [brackets and emphasis added in Beau Brummell Ties]);
Wachendorf v. Shaver, 149 Ohio St. 231, 78 N.E.2d 370 (1948), paragraph five of
the syllabus (“significance and effect should, if possible, be accorded to every word,
phrase, sentence and part of an act”).
{¶ 28} Next means “[n]earest; closest; immediately following.” (Emphasis
added.) Black’s Law Dictionary 1043 (6th Ed.1990). Immediately means
“[w]ithout interval of time, without delay, straightway, or without any delay or
lapse of time.” Id. at 750. In fact, one dictionary defines “next” as “immediately
preceding.” Webster’s at 1524. And one thesaurus suggests “nearest” as a
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January Term, 2017
synonym for both “immediately” and “next.” Roget’s International Thesaurus
1015, 1093 (4th Ed.1977). The lead opinion’s construction renders the word “next”
superfluous and fails to follow the mandate that we must give effect to the common
usage of each and every word in a statute.
{¶ 29} The lead opinion’s suggestion that the Westlake City Council
intended different meanings because it used “a” instead of “the” is similarly flawed.
The use of “a” with “next preceding” is not a unique or even unusual construction,
particularly when paired with “a period” of years. This construction is used at least
six times in the Revised Code, and a plain reading of each of those statutes leads to
the conclusion that “next preceding” means “immediately preceding.”
{¶ 30} For instance, R.C. 2113.41 describes the duties of an estate executor
related to a public auction of personal property. Under the statute, the executor
may give notice of the sale by placing an advertisement “appearing at least three
times in a newspaper of general circulation in the county during a period of fifteen
days next preceding the sale.” R.C. 2113.41(A)(1). Alternatively, the executor
may post an advertisement in five public places in the township or municipality
where the sale will take place “not less than fifteen days next preceding the sale.”
R.C. 2113.41(A)(2). The executor is required to sell the personal property “at a
fixed price or for the best price obtainable.” R.C. 2113.40. Read together, a
reasonable conclusion is that the advertising requirement promotes attendance at
the auction to achieve the best price through competitive bidding. The advertising
requirement also prevents inside dealing by preventing the executor from
concealing the sale to create artificially low prices for friends and family at the
expense of the estate. But the lead opinion’s interpretation of the “a period * * *
next preceding” construction would permit the executor to drive down attendance,
and thereby prices, by advertising during a 15-day period months or even years
preceding the auction. A plain reading of the statute would never warrant that
outcome.
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{¶ 31} Other examples also illustrate the absurdity of the lead opinion’s
analysis.
{¶ 32} R.C. 351.04 describes the requirements for a convention facility’s
board of directors. It requires that “[e]ach director shall have been a qualified
elector of, or shall have had his business or place of employment in the county
creating the authority for a period of at least three years next preceding his
appointment.” The board must include a representative of (1) the county’s
townships, (2) a major business trade organization in the county, (3) the county’s
convention and visitor’s bureau, (4) the mayor of the county’s largest municipality,
and (5) the mayors of the remaining municipalities. R.C. 351.04(A)-(C). With this
emphasis on local resident and business appointees, it is absurd to conclude that the
General Assembly intended to permit the appointment of a board member who no
longer has contacts in the county but lived there for three years during college four
decades ago. Under the lead opinion’s strained interpretation, such a result is
entirely permissible. And the lead opinion’s interpretation may cause a comparably
bizarre result for port authority boards of directors, Ohio Turnpike commissioners,
and members of the Ohio water development authority. See R.C. 4582.03(A) and
4582.27 (“A majority of the directors [of a port authority] shall have been qualified
electors of, or shall have had their businesses or places of employment in, one or
more political subdivisions within the area of the jurisdiction of the port authority,
for a period of at least three years next preceding their appointment”); R.C.
5537.02(B)(2) (turnpike commission “members appointed by the governor shall be
residents of the state, shall have been qualified electors therein for a period of at
least five years next preceding their appointment”); R.C. 6121.02 (appointed
members of the water development authority “shall be residents of the state, and
shall have been qualified electors therein for a period of at least five years next
preceding their appointment”).
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{¶ 33} The lead opinion’s analysis effects an equally ridiculous outcome for
the citizens of Westlake. A person could graduate from law school and spend the
next six years practicing law in Ohio. After that, the lawyer could leave the state
or even the country and spend the next four decades toiling in another profession
before retiring to Westlake. After spending one and a half years in the city, the
person, who could have spent the last 40 years working in fields as diverse as animal
husbandry, surgery, or ballet, could run for law director. The law director’s duties
include:
[S]erving the Mayor, the various administrative departments of the
City, the Planning Commission, the Board of Zoning Appeals, the
Board of Building Appeals, the Civil Service Commission, officers
of the City and Council as attorney and legal counsel * * * [and]
represent[ing] the City in all proceedings in court or before any
administrative body.
Westlake Codified Ordinances Chapter 133.01(a). Under the lead opinion’s
analysis, these significant responsibilities could fall to a person who has not
practiced law in decades. It is unfathomable that the Westlake City Council
intended this result when it decided to use “a” and “the,” “next” and “immediately.”
{¶ 34} The lead opinion’s strained analysis ignores our precedent, the
canons of statutory construction, and the words chosen by the duly elected council
members of Westlake. That the lead opinion goes to such lengths in this case is
curious, particularly given that the proper interpretation of the ordinance would
mean only that relator, Andrea F. Rocco, cannot appear as a candidate for law
director in the November 2017 election. If she continues to practice law—as she
has since leaving the clerk of courts’ office in January 2015—she could appear as
a candidate for law director in the November 2021 election.
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{¶ 35} For the foregoing reasons, I dissent. I would hold that the charter
requires a candidate for Westlake director of law to be engaged in the active practice
of law during the six-year period immediately preceding his or her election, and,
consistent with our precedent in election cases, I would defer to the determination
of the Cuyahoga County Board of Elections that Rocco did not meet that
requirement and deny the writ.
_________________
DEWINE, J., dissenting.
{¶ 36} The citizens of Westlake chose to enact a charter provision requiring
that the city’s law director have been engaged in the “active practice of law in Ohio
for a period of six (6) years next preceding his election.” Today, the lead opinion
rewrites the charter to effectively strike the words “next preceding his election” and
to simply require that the law director have practiced law for any six-year period.
Because I would honor the choice made by the Westlake citizens—and because I
disagree with the linguistic legerdemain employed by the lead opinion to reach its
desired result—I dissent.
The Ordinary and Established Meaning of “Next Preceding”
{¶ 37} The Westlake City Charter requires that
[t]he 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.) Westlake City Charter, Article IV, Section 4.
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{¶ 38} There can be no plausible question as to what is meant by the phrase
“next preceding.” “Next” literally means “immediately preceding or following in
order.” Webster’s Third New International Dictionary 1524 (2002). “Preceding”
means “going before.” Id. at 1783. Under any reasonable interpretation, “a period
of six years next preceding the election” means the six-year period that comes
immediately prior to the election.
{¶ 39} And this is the manner in which the phrase has been consistently
used in Ohio law. For example, R.C. 135.33(A) provides that a “board of county
commissioners shall meet every four years in the month next preceding the date of
the expiration of its current period of designation.” R.C. 1561.12 similarly requires
that an applicant for a position such as deputy mine inspector must present evidence
that the applicant has been a resident and citizen of the state “for two years next
preceding the date of application.” Plainly, in these statutes, the phrase means
“immediately preceding.”
{¶ 40} Other examples abound. The third paragraph of R.C. 6105.08
requires certification of an annual watershed-district budget to the county
commissioners. The fourth paragraph then sets forth the duties the commissioners
must perform “[u]pon the receipt of the certification under the next preceding
paragraph of this section.” The fourth paragraph makes sense only if “the next
preceding paragraph” is the third paragraph, i.e., the immediately preceding
paragraph. Another example can be found in R.C. 3929.30, which requires that on
January 1 or within 60 days after that date, insurance-company officers must file
with the superintendent of insurance “a statement of the condition of such company
on the next preceding thirty-first day of December.” The “next preceding thirty-
first day of December” obviously refers to the December 31 immediately preceding
the start of that specific 60-day annual reporting window. Any other conclusion
would render the requirement meaningless.
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{¶ 41} Ohio courts have likewise used the phrase “next preceding” as
synonymous with “immediately preceding.” In Cincinnati v. Kirk, 20 Ohio App.
452, 152 N.E. 207 (1st Dist.1925), the First District Court of Appeals observed that
“[t]he damages claimed were for a period of four years next preceding the filing of
the petition, which is the period limited by the statute.” Id. at 453. If the phrase
could be used to describe the operation of a statute of limitations, it necessarily
must refer to the period of time immediately preceding the event at issue. See also
Mansfield v. Hunt, 10 Ohio C.D. 567, 569, 19 Ohio C.C. 488, 1900 WL 1068 (5th
Dist.1900) (similarly concluding, when the plaintiff claimed that the defendant had
been polluting a stream for the past 12 years, that the statute of limitations would
not bar damages for injuries occurring “within a period of four years next preceding
the bringing of the action”).
{¶ 42} The board of elections not surprisingly used the ordinary and
established meaning of “next preceding” and concluded that in the Westlake City
Charter, that phrase indicated a six-year period immediately preceding the election.
Applying a definition of “active practice of law” that had been prepared by a law
firm after review of decisions of this court, the board determined that relator,
Andrea F. Rocco, had not met the charter’s practice-of-law requirement. The lead
opinion—which has the support of a total of two justices—determines that the
board’s construction of the charter amounts to an abuse of discretion. In the lead
opinion’s view, “a period of six (6) years next preceding” the election means any
six-year period before the election.
The Lead Opinion’s Rewrite of the Westlake City Charter
{¶ 43} The lead opinion never pretends that the common and ordinary
meaning of “next preceding” is not “immediately preceding.” Rather, it relies on
contextual clues that it finds in the charter to reach its conclusion that the ordinary
meaning of the term should not apply. First, it focuses on the charter’s reference to
“a period of six years” rather than “the period of six years.” (Emphasis added.)
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Then, it looks to the use of “immediately preceding” in the context of the
provision’s residency requirement in contrast to the use of “next preceding” in the
practice-of-law requirement. Using its contextual clues, the lead opinion shortens
the phrase “a period of six (6) years next preceding his election” to simply “a period
of six (6) years.” I consider each facet of the lead opinion’s analysis in turn.
{¶ 44} Because “a” is an indefinite article that is generally construed to
mean “any,” the lead opinion reasons that the phrase “a period of six years next
preceding” the election must mean any six-year period before the election. If the
charter’s drafters had intended for the requirement to be the specific six-year period
prior to the election, the lead opinion says, the drafters would have used “the period
of six years next preceding” the election. Fair enough. The problem, though, is we
must construe the article in the context of the entire sentence. State ex rel. Turner
v. Eberlin, 117 Ohio St.3d 381, 2008-Ohio-1117, 884 N.E.2d 39, ¶ 14, citing State
ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-Ohio-5838, 876 N.E.2d
1231, ¶ 35. Indeed, courts routinely look to the language of the entire provision in
determining whether an indefinite article, such as “a,” actually has a singular
definition. See, e.g., Holladay Duplex Mgmt. Co. v. Howells, 2002 UT App 125,
47 P.3d 104, ¶ 5-8; Farrington’s Owners’ Assn. v. Conway Lake Resorts, Inc., 2005
ME 93, 878 A.2d 504, ¶ 11-13; People v. Booker, Mich.App. No. 283490, 2009
WL 2382466, *5 (Aug. 4, 2009). Reading the provision as a whole—that is,
considering not just the “a period” language but the entire phrase “a period of six
(6) years next preceding [her] election”—there can be little doubt that the phrase
means the six-year period immediately prior to the election.
{¶ 45} The second aspect of the lead opinion’s analysis is even shakier. The
lead opinion asserts that because the drafters used the phrase “immediately
preceding” in the same provision of the charter, “next preceding” must mean
something different than “immediately preceding.” But, in none of the cases cited
by the lead opinion in support of the canon of construction that presumes consistent
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usage were synonymous words or phrases at issue. Synonymous phrases don’t
become antonymous phrases just because they appear in the same sentence.
{¶ 46} Indeed, the statutory canon relied upon by the lead opinion (“the
presumption of consistent usage”) has been called “ ‘narrow and mischievous’ ” by
no less an authority than Justice Joseph Story. See Scalia & Garner, Reading Law:
The Interpretation of Legal Texts 170 (2012), quoting 1 Joseph Story,
Commentaries on the Constitution of the United States, Section 454, at 323 (2d
Ed.1858). It is said that “more than most other canons, this one assumes a
perfection of drafting that, as an empirical matter, is often not achieved. Though
one might wish it were otherwise, drafters * * * often * * * use different words to
denote the same concept.” Id.{¶ 47} While the statutory canon upon which the lead opinion hangs its hat
is “often disregarded,” id. at 171, we should not ignore a much more fundamental
principle of interpretation: that words in statutes should not be construed to be
redundant, nor should any words be ignored. E. Ohio Gas Co. v. Pub. Util. Comm.,
39 Ohio St.3d 295, 299, 530 N.E.2d 875 (1988). Rather, “[s]tatutory language
‘must be construed as a whole and given such interpretation as will give effect to
every word and clause in it.’ ” D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health,
96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 26, quoting State ex rel.
Myers v. Spencer Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 372-373,
116 N.E. 516 (1917).
{¶ 48} Here, the lead opinion effectively reads the words “next preceding
his election” out of the charter. The requirement that the law director have “been
engaged in the active practice of law in Ohio for a period of six (6) years next
preceding his election” (emphasis added) is transformed into a requirement that the
law director have “been engaged in the active practice of law in Ohio for a period
of six (6) years.” The charter is reimagined with four words stricken. In so doing,
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January Term, 2017
the lead opinion tramples upon our duty to give meaning to every word in the
charter.
{¶ 49} The lead opinion also ignores the charter’s use of the word “period.”
The charter states that the law director must have been engaged in the practice law
for a period of six years, not a total of six years. The use of the word “period” is
conspicuous, connoting that the six years must be consecutive. A “period” is
defined as “a chronological division.” Webster’s at 1680. That the charter requires
the six years of practice be consecutive is significant. Under the lead opinion’s
reading, any random consecutive six-year period, no matter how remote, would
suffice. But what makes more sense—that the charter would require six
consecutive years of legal practice at any time in the candidate’s life or that it would
require six consecutive years of legal practice in the period adjacent to the time that
the candidate would begin performing legal services for Westlake? Plainly, the
latter.
The Board’s Reading of the Six-Year Requirement is Reasonable
{¶ 50} There is little need to write more. The board’s interpretation of the
charter squares with the plain and legally established meaning of the phrase “next
preceding.” Application of rules of statutory construction reinforce this obvious
point and demonstrate how far afield the lead opinion has drifted.
{¶ 51} Nonetheless, it bears mentioning that this is not an instance in which
the board’s interpretation of the charter is nonsensical. Rather, it makes perfect
sense that Westlake—in determining who is qualified to perform the day-to-day
legal work required of the position—would require that the law director be a person
who is currently engaged in the day-to-day practice of law. And it makes sense that
the length of time the person elected law director must have engaged in the practice
of law—6 years—be significant. Current, significant engagement in the practice
of law seems a most reasonable requirement for the position of law director. The
charter would disqualify a person who worked at a law firm for 6 years and then
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decided to try something else for 20 years or a person who strung together 6 years
of practice over 30 years, off and on. That it disqualifies Rocco may seem unfair
to some, but her disqualification is due to her resume—not because the charter does
not say what it means.
Conclusion
{¶ 52} Under the plain, ordinary, and established meaning of the term “next
preceding,” Rocco was required to have been engaged in the active practice of law
for six years immediately prior to the election. In concluding otherwise—and
removing the phrase “next preceding his election” from the charter—the lead
opinion violates established rules of statutory construction.
{¶ 53} In enacting the “six (6) years next preceding” requirement, the
citizens of Westlake made a reasoned choice to require that the city’s law director
have recent experience in the practice of law. Today, Andrea Rocco is placed on
the ballot pursuant not to the Westlake City Charter but by order of this court.
{¶ 54} Our duty is to apply the charter that was enacted by the citizens of
Westlake, not to rewrite it to our liking. In my view, the board of elections did not
abuse its discretion when it applied the plain language of the charter and determined
that Rocco was not eligible to serve as law director. Because a majority of this
court sees it differently, I respectfully dissent.
KENNEDY, J., concurs in the foregoing opinion.
_________________
McTigue & Colombo, L.L.C., Donald J. McTigue, 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.
_________________
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