State ex rel. Baker v. Fox

[Cite as State ex rel. Baker v. Fox, 2022-Ohio-667.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO, EX REL. Hon. Earle E. Wise, Jr., P. J.
ROBERT B. BAKER Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
Petitioner
Case No. 2022 AP 01 0002
-vs-
MATTHEW A. FOX OPINION
Respondent
CHARACTER OF PROCEEDING: Writ of Quo Warranto
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: March 7, 2022
APPEARANCES:
For Petitioner For Respondent
ROBERT B. BAKER MATTHEW A. FOX
PRO SE PRO SE
951 Eastport Avenue 1004 Eastport Avenue
Uhrichsville, Ohio 44683 Uhrichsville, Ohio 44683
Tuscarawas County, Case No. 2022 AP 01 0002 2
Wise, John, J.
{¶1} On January 5, 2022, Robert Baker filed a Complaint for Writ of Quo
Warranto against Matthew A. Fox. Baker challenges Fox’s appointment to the Uhrichsville
Ward 1 council member seat.
I. Background
{¶2} In his Complaint for Writ of Quo Warranto Baker asks this Court to require
Fox “to show by warrant he lawfully holds the office of Uhrichsville Ward 1 Council
member, and that * * * Fox be ousted therefrom * * *” Baker claims entitlement to this
relief based on the following facts. Fox was previously appointed to the position of
Uhrichsville Council-at-Large member for a term that expired on December 31, 2021.
Complaint, ¶ 5. At a council meeting held on December 9, 2021, Fox, while holding the
council-at-large seat, was appointed by Uhrichsville Council to fill the open position of
Uhrichsville Ward 1 council member. Id., ¶ 6.
{¶3} After Fox’s appointment, Baker alleges Fox “simultaneously held the
positions of Uhrichsville Council at Large member and Uhrichsville Ward 1 Council
member, in violation of Ohio law.” Id., ¶ 7. On December 10, 2021, Fox resigned the
position of Uhrichsville Council-at-Large member to the Tuscarawas County Board of
Elections effective December 9, 2021, at 9:00 p.m. Id., ¶ 8. Baker claims Fox now
unlawfully holds the office of Uhrichsville Ward 1 council member “due to already holding
an incompatible public office at the time of the appointment of * * * Fox to the position of
Uhrichsville Ward 1 Council member.” Id., ¶ 10.
{¶4} Baker filed an Answer on January 20, 2022.
Tuscarawas County, Case No. 2022 AP 01 0002 3
II. Analysis
{¶5} Baker seeks relief in quo warranto. “In order for a writ of quo warranto to
issue, relator must establish (1) that the office is being unlawfully held and exercised by
respondent, and (2) that relator is entitled to the office. (Citations omitted.) State ex rel.
Herman v. Klopfleisch, 72 Ohio St.3d 581, 583, 651 N.E.2d 995 (1995). R.C. 2733.08
provides, in part: “When an action in quo warranto is brought against a person for usurping
an office, the petition shall set forth the name of the person claiming to be entitled to the
office, with an averment of his right thereto.” (Emphasis added.)
{¶6} Standing to initiate a quo warranto action is established in R.C. 2733.05 and
R.C. 2733.06. Standing “is given exclusively to the attorney general and county
prosecutors with a single exception: persons who claim entitlement to a public office.”
(Emphasis sic.) (Citation omitted.) Kirby v. Oatts, 2nd Dist. Montgomery No. 28455, 2020-
Ohio-301, 151 N.E.3d 1083, ¶ 37. Thus, “[a] private individual can maintain an action in
quo warranto upon the relation of the state if he claims, in good faith, to be entitled to a
public office unlawfully held by another. In order, however, to recover that office a private
individual must establish that the office is unlawfully held and that he is himself entitled to
the office.” State ex rel. Halak v. Cebula, 50 Ohio App.2d 334, 363 N.E.2d 744 (8th
Dist.1976), paragraph two of the syllabus.
{¶7} We sua sponte dismiss Baker’s quo warranto complaint under Civ.R.
12(B)(6) for failure to state a claim upon which relief can be granted because he lacks
standing. “Dismissal of a complaint based on * * * lack of standing to bring the action is
commonly construed as a dismissal for ‘failure to state a claim upon which relief can be
granted.’ ” (Citations omitted.) In re Lubrizol Shareholders Litigation, 11th Dist. Lake No.
Tuscarawas County, Case No. 2022 AP 01 0002 4
2016-L-026, 2017-Ohio-622, 79 N.E.3d 579, ¶ 15. “Sua sponte dismissal of a complaint
for failure to state a claim is appropriate if the complaint is frivolous or the claimant
obviously cannot prevail on the facts alleged in the complaint.” State ex rel. Bruggeman
v. Ingraham, 87 Ohio St.3d 230, 231, 718 N.E.2d 1285 (1999), citing State ex rel.
Thompson v. Spon, 83 Ohio St.3d 551, 553, 700 N.E.2d 1281 (1998).
{¶8} Although Baker alleges Fox unlawfully holds the Ward 1 council member
seat, Baker does not claim title to any specific office on the Uhrichsville council. Baker
only alleges in paragraph 3 of the complaint that he “is eligible to hold office as a member
of the Uhrichsville Council.” Being eligible to hold office and claiming entitlement to a
specific office are two different things. Many residents of Uhrichsville would be eligible to
hold office as a member of council.
{¶9} In his prayer for relief, “Baker prays that Respondent Matthew A. Fox be
required to show by warrant he lawfully holds the office of Uhrichsville Ward 1 Council
member, and that Respondent Matthew A. Fox be ousted therefrom, and for such further
relief as may be necessary and proper * * *” Again, Baker does not claim he is entitled to
a seat on council. Finally, even if we were to interpret Baker’s allegations to mean that he
is eligible to hold office, nowhere in the Complaint does Baker indicate which office he is
allegedly entitled to hold. For these reasons, Baker lacks standing to bring this quo
warranto original action and we sua sponte dismiss his complaint.
{¶10} The Ohio Supreme Court reached the same conclusion in State ex rel.
Annable v. Stokes, 24 Ohio St.2d 32, 32-33, 262 N.E.2d 863 (1970), where the Court
dismissed a quo warranto complaint because none of the relators claimed title to the
congressional office they argued was unconstitutionally created and neither the attorney
Tuscarawas County, Case No. 2022 AP 01 0002 5
general nor the prosecuting attorney brought the action. Similarly, in Halak, the court of
appeals dismissed a quo warranto complaint because relator presented no good faith
claim of entitlement to a disputed office and therefore, lacked standing. Halak at 337, 363
N.E.2d 744.
III. Conclusion
{¶11} For the above reasons, Baker’s Complaint for Writ of Quo Warranto is sua
sponte dismissed. Baker lacks standing to pursue the complaint under R.C. 2733.06. The
clerk of courts is hereby directed to serve upon all parties not in default notice of this
judgment and its date of entry upon the journal. See Civ.R. 58(B).
{¶12} COMPLAINT IN QUO WARRANTO IS SUA SPONTE DISMISSED.
{¶13} COSTS TO RELATOR.
{¶14} IT IS SO ORDERED.
By: Wise, John, J.
Wise, Earle, P. J., and
Gwin, J., concur.
JWW/ac 0302