DocketNumber: No. 88AP-212.
Citation Numbers: 575 N.E.2d 1186, 62 Ohio App. 3d 417
Judges: YOUNG, Judge.
Filed Date: 1/5/1989
Status: Precedential
Modified Date: 1/13/2023
This matter is before the court upon the appeal of Sherrod Brown, Ohio Secretary of State, from the trial court's decision that a quo warranto proceeding or a hearing brought pursuant to R.C.
The appellee, Martin J. Hughes, was appointed March 1, 1986, as a member of the Board of Elections of Cuyahoga County. The appellee's term on the board of elections is scheduled to expire on February 28, 1990. On November 13, 1987, the appellee was convicted of a felony under the laws of the United States of America in the United States District Court for the Northern District of Ohio.
On December 11, 1987, the appellee received correspondence from Brown asking the appellee to either resign from his position on the Cuyahoga County Board of Elections or to state reasons why he should not be removed from that position pursuant to the provisions of R.C.
The Secretary of State indicated in his correspondence with the appellee that the authority for the order of removal was R.C.
The appellee informed the Secretary of State that he was appealing the felony conviction, as set forth above, and that under Ohio law a hearing must be held in accordance with R.C.
The appellee filed a complaint on December 22, 1987, an amended complaint on December 23, 1987, and a motion to amend the amended complaint which was filed on January 22, 1988. The motion to amend was approved on February 4, 1988. The complaint asks for: (1) a temporary restraining order restraining the Secretary of State from removing the appellee from the Cuyahoga County Board of Elections; (2) a preliminary injunction enjoining the Secretary of State from removing the appellee without first complying with R.C.
Both parties submitted motions for summary judgment. In an entry dated February 18, 1988, the trial court granted the appellee's motion for summary judgment and denied the appellant's motion for summary judgment. In so doing, the trial court enjoined the appellant from removing the appellee from *Page 419
the Cuyahoga County Board of Elections unless the appellant complied with the requirements of R.C.
The appellant filed a timely appeal and assigned as error that:
"The court below erred when it ruled that an action either in quo warranto or pursuant to R.C.
There are two provisions of the Ohio Constitution which treat the removal from office of public officials. They are Section
Section
"Laws shall be passed providing for the prompt removal from office, upon complaint and hearing, of all officers, including state officers, judges and members of the general assembly, for any misconduct involving moral turpitude or for other cause provided by law; and this method of removal shall be in addition to impeachment or other method of removal authorized by the constitution. * * *"
Section
"The General Assembly shall have power to exclude from the privilege of voting, or of being eligible to office, any person convicted of a felony."
Upon examination of Section
Section
R.C.
"Any person holding office in this state, or * * * county, * * * coming within the official classification in Section
The enabling legislation which is authorized by Section
"A person convicted of a felony under the laws of this or any other state or the United States, unless his conviction is reversed or annulled, is incompetent to be an elector or juror, or to hold an office of honor, trust, or profit. * * * The full pardon of a convict restores the rights and privileges so forfeited under this section * * *." (Emphasis added.)
It should be noted that R.C.
There have been several cases which have addressed the legal issues which are before this court sub judice. In Ridgeway v.Akron (App. 1940), 36 Ohio Law Abs. 46, 42 N.E.2d 724, the court stated that:
"* * * [A]nd it is settled in this state that, in the class of cases enumerated, it is an indispensable prerequisite to an order of removal that there shall have been a complaint filed and an opportunity for a hearing had.
"Such a requirement, in the class of cases like the case at bar, where the basis of the forfeiture of office is a finding and judgment of guilt after a full and complete judicial trial, would not be appropriate. The judgment of conviction would be conclusive and binding upon the board or officer before whom the complaint would be made, and there would be no fact for the board or officer to find; and we do not believe that the legislature intended the filing of a charge or complaint, and the affording of an opportunity to be heard, in cases where the officer has had a full and complete trial before a jury and court and has been convicted.
"It is our best judgment that these various provisions can be harmonized by holding that the requirement as to complaint and hearing applies in the class of cases and situations arising under the legislation last hereinbefore referred to, and that there is no such requirement as to the class of cases and *Page 421 situations provided for under the legislation first hereinbefore referred to — to wit, where there has been a full and complete trial before a court and jury, and a judgment of conviction has been entered." Id. at 48, 42 N.E.2d at 726.
The Ohio Supreme Court in State, ex rel. Trago, v. Evans
(1957),
"In the present case there is no question of fact to bedetermined.
"It is stipulated that relator was absent from Jackson County for 90 consecutive days, and that his absence was not caused by sickness or injury. Therefore, the county commissioners had a mere ministerial and mandatory duty to perform, that is, to declare that a vacancy existed in the office of sheriff, which they did. Thereafter, respondent was appointed sheriff, in accordance with statutory provisions, not because relator had been removed from office but for the reason there was a vacancy in the office." (Emphasis added.)
In a third case, State, ex rel. Hover, v. Wolven (1963),
"Where an individual accepts a second office whose duties are incompatible with those of another office already held by such individual, the first held office is thereby vacated."
At
"We cannot agree with relator that Judd could only be removed under the provisions of Section
Therefore, we conclude, that in certain instances the Ohio Supreme Court has found that it is unnecessary to follow the mandate of R.C.
The appellee, however, references other instances which do require compliance with R.C.
The Brown case can be distinguished from the cases cited above on the basis that no reasons for the dismissal were provided the relator even though factual questions may have existed, and the ultimate issue of removal may have been within the discretion of the Secretary of State.
Another case referenced by the appellee for the proposition that public employees cannot be deprived of their employment without the safeguards of due process is Cleveland Bd. of Edn.v. Loudermill (1985),
At
"Second, some opportunity for the employee to present his side of the case is recurringly of obvious value in reaching an accurate decision. Dismissals for cause will often involve factual disputes. Cf. Califano v. Yamasaki,
"This is not to say that where state conduct is entirely discretionary the Due Process Clause is brought into play. SeeMeachum v. Fano,
Applying the due process standards as set forth in the opinion to the case sub judice, there is no requirement of a hearing for the reason that the felony conviction is an accomplished fact and pursuant to R.C.
A final assertion by the appellee is that the conviction by the federal district court of the appellee for a felony is in fact not a conviction because at the time of the hearing before the Tenth District Court of Appeals, that conviction was being appealed. This court addressed that particular issue in Plotnickv. State Medical Bd. of Ohio, (Sept. 27, 1984), Franklin App. Nos. 84AP-225 and 84AP-362, unreported, 1984 WL 5921. This court held in Plotnick that:
"* * * However, there is a conviction, even though an appeal is taken and is pending, and the conviction remains valid and enforceable during the pendency of an appeal. Although a stay of execution (release on bail) may under some circumstances be appropriate during an appeal, the stay is not of the conviction but, rather, the stay is of execution of the judgment of conviction." Id. at 13.
For the foregoing reasons, the appellant's assignment of error is sustained, and the matter is remanded to the common pleas court for further proceedings in accordance with law and this opinion.
Judgment reversedand cause remanded.
STRAUSBAUGH and JONES, JJ., concur.
FRED E. JONES, J., of the Twelfth Appellate District, sitting by assignment. *Page 424