State ex rel. Richardson v. Gowdy

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Richardson v. Gowdy, Slip Opinion No. 2023-Ohio-976.]
NOTICE
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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
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the opinion is published.
Slip Opinion No. 2023-Ohio-976THE STATE EX REL . RICHARDSON v. GOWDY ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Richardson v. Gowdy, Slip Opinion No.
2023-Ohio-976.]
Elections—Mandamus—Writ sought to compel city council president to appoint
clerk of council to complete recall-petition process or for board of elections
to certify sufficiency of petition signatures—By appointing new clerk of
council, council president performed the action relator sought to compel—A
writ of mandamus will not issue to compel action that has been performed—
Council president had no legal duty to certify number of valid signatures on
recall petitions—R.C. 705.92 inapplicable under facts of the case—Writ
denied.
(No. 2023-0295—Submitted March 21, 2023—Decided March 24, 2023.)
IN MANDAMUS.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} In December 2022, East Cleveland electors began circulating petitions
to recall three members of the East Cleveland city council. Under the city’s charter,
signed petitions had to be filed with the clerk of council within 30 days after filing
with the clerk the affidavit stating the names of the council members whose removals
were sought, East Cleveland City Charter, Section 52, and on filing of the petitions,
the clerk had to certify whether a sufficient number of electors had signed the
petitions, id., Section 53. But by the time the electors had finished collecting
signatures, the clerk-of-council position was vacant—the council president
terminated the former clerk’s employment in early January 2023. Relator, Terrie
Richardson, filed this lawsuit to compel the council president to appoint a new clerk
of council to complete the recall-petition process in time to place the recall elections
on the May 2, 2023 primary-election ballot. Alternatively, Richardson asserts that
the circumstances of this case warrant bypassing the clerk’s duties under the charter
and permitting the board of elections to certify the sufficiency of the petition
signatures.
{¶ 2} After this lawsuit was filed, the city council elected a new president,
who then appointed a new clerk. The new council president instructed the clerk to
process the recall petitions within one week. The appointment of the clerk of council
moots part of the claims in this case. As to the rest, Richardson has not shown any
right to relief in mandamus. Accordingly, we deny the requested writ.
{¶ 3} Richardson also seeks awards of attorney fees and costs. Richardson
has filed a motion to establish the amount of security for costs. We deny the request
for attorney fees, but we grant the request for costs. We grant Richardson’s motion
to establish the amount of security for costs and waive the provision of security for
costs.
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I. Background
{¶ 4} We recently explained the process for attempting to recall an East
Cleveland officeholder:
East Cleveland’s city charter establishes procedures for a
recall against a municipal officeholder. The charter requires the clerk
of the city council to keep a supply of blank recall petition forms on
hand. East Cleveland City Charter, Section 50. The clerk must issue
blank forms upon receipt of an affidavit “stating the name of the
member or members of the Council whose removal is sought.” Id.From the time the affidavit is filed, the petition circulators have 30
days to gather signatures and file the part-petitions with the clerk. Id.,Section 52.
The recall process is formally initiated by the filing of the
petition, signed by a sufficient number of electors, with the clerk. Id.,Section 49. The clerk must then “certify * * * whether the signature
of electors [on the petition] amount in number to at least twenty-five
(25) percent of the voters voting at the last regular municipal election
of officers.” Id., Section 53. If the petition contains enough
signatures, the clerk must “serve notice of that fact upon” the
officeholder designated in the recall petition and deliver a copy of the
petition to “the election authorities” along with the certification
regarding the percentage of voters who cast ballots at the last
municipal election. Id., Section 54.
The officeholder designated in the recall petition may resign
within five days of the clerk’s certification. Id., Section 54. If the
designated officeholder does not resign within that five-day period,
“the election authorities shall forthwith order and fix a day for holding
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a recall election,” with the fixed day being no later than 90 days after
the expiration of the five-day resignation period. Id.(Ellipsis and brackets sic and footnote omitted.) State ex rel. King v. Cuyahoga Cty.
Bd. of Elections, __ Ohio St.3d __, 2022-Ohio-3613, __ N.E.3d __, ¶ 2-4.
{¶ 5} On December 21, 2022, Richardson and two other East Cleveland
electors obtained blank petitions for the recall of East Cleveland city council
members Korean Stevenson, Juanita Gowdy, and Patricia Blochowiak. At that time,
Tracy Udrija-Peters was the clerk of council. On January 3, 2023, the city council
elected Stevenson as its president. That same day, Stevenson terminated Udrija-
Peters’s employment.
{¶ 6} On January 20, Richardson and others submitted recall petitions for the
three challenged council members to East Cleveland’s law director, Willa Hemmons.
Richardson claims that they delivered the petitions to Hemmons because no one was
serving as the clerk of council at the time. Hemmons took the petitions to respondent
Cuyahoga County Board of Elections. According to Hemmons, the board’s director
told her to certify whether the petitions contained a sufficient number of valid
signatures. Hemmons certified that the petitions contained sufficient valid signatures
and filed the petitions with the board on January 24.
{¶ 7} On February 13, during a board-of-elections meeting, Hemmons stated
that she was not the clerk of council when she filed the petitions. Based in part on
that representation, the board voted not to place the recall elections on the May 2023
ballot. Hemmons then filed an original action against the board in the Eighth District
Court of Appeals, seeking a writ of procedendo and a declaratory judgment that the
recall petitions were properly submitted. Hemmons argued that the board erred in
refusing to place the recall elections on the May ballot.
{¶ 8} Under R.C. 733.58, when a municipal officer fails to perform a clear
legal duty, the city law director “shall apply to a court of competent jurisdiction for
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January Term, 2023
a writ of mandamus to compel the performance of the duty.” If the law director fails
to do so on written request of any taxpayer of the municipality, the taxpayer may
initiate a suit in her own name, on behalf of the municipal corporation. R.C. 733.59.
On February 21, Richardson asked Hemmons to file a mandamus action to compel
Stevenson to appoint a new clerk of council to complete the recall-petition process
in time for placement of the recall elections on the May 2023 ballot. Hemmons
declined to do so, citing her direct involvement in the dispute.
{¶ 9} On February 28, Richardson, citing R.C. 733.59, filed this action,
seeking a writ of mandamus to compel the council president to appoint a clerk of
council to complete the recall-petition process. When Richardson filed her
complaint, Stevenson was the council president. But on March 6, Stevenson was
replaced as president by Gowdy. Because Gowdy is the current council president,
she is automatically substituted for Stevenson as a respondent in this action. See
S.Ct.Prac.R. 4.06(B).
{¶ 10} On March 12, Gowdy appointed Eric Brewer as the clerk of council
and instructed him “that his first priority as Clerk will be to review and process all
pending petitions for recall and to certify to the Cuyahoga County Board of Elections
whether there are sufficient valid signatures to justify a recall election.” Gowdy told
Brewer that “he [was] to complete this process within one week.”
{¶ 11} Richardson also named the board of elections as a respondent in this
action. If Richardson cannot obtain a writ of mandamus against the council president,
she seeks a writ of mandamus compelling the board to certify the number of valid
signatures on the petitions.
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II. Analysis
A. Mandamus standard
{¶ 12} To be entitled to a writ of mandamus, Richardson must prove by clear
and convincing evidence (1) a clear legal right to the requested relief, (2) a clear legal
duty on the part of respondents to provide that relief, and (3) the lack of an adequate
remedy in the ordinary course of the law. See State ex rel. Waters v. Spaeth, 131
Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13.
B. Claim against the council president
{¶ 13} Richardson seeks a writ of mandamus compelling the council
president to “immediately appoint a Clerk of Council to perform the ministerial task
of certifying the number of valid signatures in each Recall Petition.” Richardson’s
claim against the council president is thus twofold: she seeks (1) to compel the
council president to appoint a clerk of council and (2) to compel the clerk of council
to certify the number of valid signatures on the recall petitions.
{¶ 14} The first part of Richardson’s claim is moot. By appointing Brewer
as the clerk of council, Gowdy has already performed the action Richardson seeks to
compel. A writ of mandamus will not issue to compel action that has been performed.
See State ex rel. Gantt v. Coleman, 6 Ohio St.3d 5, 450 N.E.2d 1163 (1983).
{¶ 15} The board of elections has filed in this court a notice of additional
litigation pending in the Cuyahoga County Court of Common Pleas and the Eighth
District, in which Gowdy’s authority to appoint Brewer as clerk of council has been
challenged. The board points in the notice to a legal opinion written by Hemmons,
in which she states that Gowdy is not the council president and lacked authority to
appoint Brewer as clerk of council. Richardson acknowledges these disputes but
concedes that Brewer was duly appointed as clerk of council on March 12. Any
questions about the legitimacy of Brewer’s appointment, therefore, are not properly
before us.
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January Term, 2023
{¶ 16} The second part of Richardson’s claim against the council president is
not moot, but it fails for another reason: the council president has no legal duty to
certify the number of valid signatures on the recall petitions. Under Section 53 of the
East Cleveland City Charter, the clerk of council must certify whether the signatures
on the petitions are valid and sufficient in number. See King, __ Ohio St.3d __, 2022-
Ohio-3613, __ N.E.3d __, at ¶ 32. Indeed, in her reply brief, Richardson argues that
this court should “order * * * Brewer to immediately certify the number of valid
signatures on the Recall Petitions.” Richardson is not entitled to the relief she seeks,
because she is not actually attempting to enforce a legal duty belonging to the council
president, and Brewer is not a party in this case.
{¶ 17} For these reasons, we deny the writ of mandamus as to Richardson’s
claim against the council president.
C. Claim against the board
{¶ 18} Richardson also seeks a writ of mandamus compelling the board of
elections “to comply with the East Cleveland Charter and R.C. 705.92 to immediately
perform the ministerial task of certifying the number of valid signatures in each
Recall Petition.”
{¶ 19} Under R.C. 705.92(A), a recall petition “shall be filed with the board
of elections.” Richardson argues that R.C. 705.92 applies when the recall procedure
established by East Cleveland’s city charter becomes “inoperable.” According to
Richardson, R.C. 705.92 applies by virtue of East Cleveland City Charter, Section
87, which provides, “All general laws of the State applicable to municipal
corporations now or hereafter enacted, and which are not in conflict or inconsistent
with the provisions of this Charter, or with ordinances or resolutions hereafter
enacted by the Council, shall be applicable to this city and all officers and
departments thereof.” Richardson contends that R.C. 705.92 is a general law of this
state that applies in East Cleveland whenever there is a vacancy in the clerk-of-
council position.
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{¶ 20} Richardson’s argument lacks merit. R.C. 705.92 is not a law that is
generally applicable to municipalities. R.C. 705.91 provides that when a
municipality’s electors are voting on a plan of government pursuant to R.C. 705.03,
the question whether to adopt the requirements of R.C. 705.92 “shall be submitted
* * * to the electors of the municipal corporation * * *.” R.C. 705.91 further provides
that R.C. 705.92 “shall go into effect and form part of any such plan of government
only to the extent to which such section has been adopted under [R.C. 705.03].”
(Emphasis added.) We have stated that “[t]he clear meaning of R.C. 705.91 is that
provisions of R.C. 705.92 go into effect only to the extent that they have been adopted
by the voters of a municipal corporation as part of a home-rule charter.” State ex rel.
Lockhart v. Boberek, 45 Ohio St.2d 292, 294, 345 N.E.2d 71 (1976).
{¶ 21} Richardson relies on State ex rel. McVey v. Banks, 12th Dist. Clermont
No. 83-06-051, 1983 WL 4431, *2 (July 21, 1983), in which the Twelfth District
Court of Appeals concluded that R.C. 705.91 does not require a municipality’s
electors to expressly adopt R.C. 705.92 when the electors have adopted a plan of
government other than one described in R.C. Chapter 705. According to McVey,
R.C. 705.92 “provides the statutory procedures and standards for municipal recall
elections in cities governed by home rule city charters and other forms of government
beyond the scope of R.C. Chapter 705.” McVey at *2.
{¶ 22} The analysis in McVey is not persuasive. R.C. 705.91 provides that
R.C. 705.92 shall become effective in a municipality “only to the extent to which
such section has been adopted under [R.C. 705.03].” It is undisputed that East
Cleveland’s city charter was not adopted under R.C. Chapter 705.03. Moreover, in
McVey, the court of appeals held that R.C. 705.92 applied because the city charter at
issue authorized recall elections while stating that “[t]he procedure for such recall
shall be that provided by law.” McVey at *1. East Cleveland’s city charter does not
use similar “provided by law” language.
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January Term, 2023
{¶ 23} Section 87 of the East Cleveland City Charter provides that general
laws of the state apply to the city and its officers when they “are not in conflict or
inconsistent with the provisions of [the] Charter.” Richardson acknowledges that the
recall procedures in the East Cleveland City Charter conflict with R.C. 705.92. The
clear conflict between the city charter and R.C. 705.92 further supports the
conclusion that the statute does not apply to recall petitions involving East Cleveland
municipal officeholders. Accordingly, we deny the writ of mandamus as to
Richardson’s claim against the board of elections.
{¶ 24} In her reply brief, Richardson suggests that she may be entitled to a
writ of mandamus if the board refuses to accept any certification of the petitions
submitted by Brewer based on the board’s possible determination that Brewer was
not properly appointed. We do not address this concern, because it is speculative and
beyond the scope of Richardson’s claim against the board.
D. Attorney fees and costs
{¶ 25} In her claim against the council president, Richardson has requested
awards of attorney fees and costs “on the basis of R.C. 733.59 and [the council
president’s] bad faith actions.” We deny Richardson’s request for attorney fees,
because judgment is not being ordered in her favor. See R.C. 733.61 (allowing a
court, in its discretion, to award reasonable attorney fees to a taxpayer receiving
judgment in her favor).
{¶ 26} Richardson, however, is entitled to an award of costs. Richardson
asserted a taxpayer action against the council president under R.C. 733.59. R.C.
733.61 provides:
If the court hearing a case under [R.C. 733.59] is satisfied that
the taxpayer had good cause to believe that his allegations were well
founded, or if they are sufficient in law, it shall make such order as
the equity of the case demands. In such case the taxpayer shall be
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allowed his costs, and, if judgment is finally ordered in his favor, he
may be allowed, as part of the costs, a reasonable compensation for
his attorney.
This statutory language entitles Richardson to an award of costs, even without a
judgment in her favor, if we determine that she “had good cause to believe that [her]
allegations were well founded,” id.{¶ 27} As discussed above, Richardson’s non-moot claims were not well
founded. But it is not necessary for us to decide whether Richardson would have
prevailed on her moot claim. For purposes of the request for costs under R.C. 733.61,
Richardson need only show that she had good cause to believe that her claim was
well founded. We conclude that she has met that burden and therefore grant her
request for an award of costs. We grant her motion to establish security for costs and
waive the provision of security for costs. See State ex rel. Harris v. Rubino, 155 Ohio
St.3d 123, 2018-Ohio-3609, 119 N.E.3d 1238, ¶ 36.
III. Conclusion
{¶ 28} We deny the writ of mandamus and deny Richardson’s request for
attorney fees. We award costs to Richardson, grant her motion to establish security
for costs, and waive the provision of security for costs. Costs are taxed to the council
president.
Writ denied.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,
and DETERS, JJ., concur.
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Mendenhall Law Group, Warner Mendenhall, and Logan Trombley, for
relator.
Kenneth D. Myers, for respondents Korean Stevenson and Juanita Gowdy.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mark
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January Term, 2023
R. Musson, Assistant Prosecuting Attorney, for respondent Cuyahoga County
Board of Elections.
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