UPDATE: SATURDAY, DECEMBER 21, 2013, 09:41 AM
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The SCPR presents excerpted language from the motions which the SCPR succinctly states the case of relators Swanson and Darrow.
MEMO OPPOSING MOTION TO DISMISS [Editor insertions]
To repeat: "selected excerpts are presented" by the SCPR.
The Respondents [Chairman Gonzalez and the Democratic Party Central Committee] have elected [December 11, 2013] to ignore the actual vacancy in the office which resulted from Sheriff-elect, Michael A. McDonald's announcement that he could not assume office for personal health reasons.
As alleged in the complaint, and addressed. more-fully herein below, it remains the Relators' position that the Respondents are under the clear legal duty to fill the McDonald vacancy from the two applicants for that vacancy who satisfied all legal qualifications before the applicable "qualification date."
The reappointment of Maier by the DCC demonstrates a gross departure from the Respondents' legal duties and, frankly, flies in the face of this Court's decision in Swanson v. Maier.
Seemingly without regard to these facts, the Respondents ignored the McDonald vacancy in preference to what they deem the "new vacancy" created by this Court's judicial ouster of Maier.
According to the Respondents, there was a "vacancy caused by the removal of Maier," and reportedly this "new vacancy" allowed for an "updated 30 day qualification date" extending from the Court's decision in Maier. (Respondents' Response to Motion for Ancillary Relief, p. 12). This approach, of course, further ignores that, in Swanson v. Maier, this Court not only ousted Maier but, further, reinstated Swanson to his appointment as acting sheriff ... .
Incident to Swanson's reinstatement, the only vacancy remaining within the jurisdiction of the DCC to fill.
The Relators' claim in mandamus has the same logical foundation as the claim in Deiter [a cited case authority].
The vacancy that remains to be filled is that created by Sheriff-elect McDonald's inability to assume office - the January 7, 2013 McDonald vacancy.
The fact that Maier was previously appointed to the office, and was actually removed through quo warranto, does not empower the appointing authority to skip or gloss over the McDonald vacancy.
Following the ouster of Maier, the DCC was called upon to appoint someone to fill the January 7, 2013 vacancy to which Maier had been appointed but for which he was not legally qualified. by appointment was the McDonald vacancy.
No "new" rules, time deadlines or other criteria or credentials can be utilized by the Respondents in the process of exercising appointment authority to fill the McDonald vacancy.
Relators maintain. that the jurisdiction and authority of the Respondents is confined to consideration for the appointment to that vacancy from. those eligible and legally-qualified candidates who timely submitted and processed their applications for that vacancy prior to the "applicable qualification date" of February 6, 2013.
A "person qualified under R.C. 311.01 to assume the office of Stark County sheriff" must, among other qualification, satisfy the qualifications date of February 6, 2013, for appointinent to the McIDonald vacancy and term.
This Court did not expressly or by implication tell the DCC to use some new "updated" qualification date to proceed under R.C. 305.02(B).
If one accepts the Respondents' [Gonzalez and the DCC] argument, that "[a]fter 45 days, the DCC's legal authority lapses and it has no power to appoint," then the Respondents must recognize relator Darrow, who was the qualified applicant who received the most votes at the February 5 meeting, as the appointee to the McDonald vacancy. (Motion, p. 8).
That is the result dictated by the code as opposed to recognition of some fictitious new vacancy and new qualification date.
In this case, the Respondent DCC has a clear legal duty, fixed by law, to comply fully with R.C. 305.02 and 311.01 in filling the vacancy of Stark County Sheriff The DCC has already held a meeting for the purpose of appointment, and only Darrow and Dordea were the
applicants eligible for appointment with timely submissions prior to the qualification date.
The DCC is under a clear legal duty to appoint from those two eligible applicants [Darrow and Dordea].
George T. Maier did not have any term in office as Stark County Sheriff. To the contrary, he was judicially ousted, and that ouster is treated as though his appointment to the position had never occurred.
Inasmuch as Maier served no tezm in office, and his appointment was never legitimate, his ouster did not create any new vacancy.
Remarkably, the Respondents even acknowledge that the "complaint" is couched in terms of compelling acts." ... That observation is correct - the relief sought in this case is an order compelling the Respondents to carry out the legal duties imposed upon them to complete the statutory appointment process. ...
No form of injunction would "provide relators with the relief they request; an order to cornpel the [respondent] to comply with its duties under [the] R..C.......
Consequently, and "notwithstanding respondents" claim to the contrary, relators' mandamus claim is not an ill-disguised claim of declaratory judgment and prohibitory injunction, ... .
The Maier appointment was a nullity, and Maier's removal - coupled with the reinstatement of Swanson - did not create a new vacancy.
The Respondents are under a clear legal duty to fill a lawful appointment for the McDonald vacancy, completing the process that was begun in February of 2013.
Recognition of the single vacancy at issue, the McDonald vacancy, and preservation of the applicable qualification date of February 6, 2013 for that vacancy, provide the only mechanism for protecting the appointment process.from manipulation.
This Court should reject any approach under which an unqualified candidate for the office of sheriff can receive an appointment, usurping the appointment opportunity of qualified applicants, and then effectively create time to manufacture new credentials if ousted by a challenger.
Such an approach to utilization of the statutes would lead to manipulation, as demonstrated by this case.
There was no "new vacancy" created by the judicial ouster of Maier.
Maier was not legally qualified for the appointment, and he should never have even been in the office. Relator Swanson was entitled to the office, as Acting Sheriff, the entire time since his appointinent in January of 2013 under R.C. 305.02(F).
The "exception" clause of R.C. 305.02(B) makes its clear that there is but one vacancy to be filled in this instance, that of officer-elect McDonald, and the person lawfully appointed will assume the McDonald vacancy at the beginning of the term.
There are significant issues to be determined by this Court in this mandamus action.
Moreover, the reappointment of Maier as Stark County Sheriff, in contravention of the applicable appointment authority under R.C. 305.02(B), does not end the controversy.
If anything, the positions asserted and measures undertaken by the Respondents reenforce the urgent need for mandamus
relief.
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MOTION OPPOSING: [SWANSON/DARROW]
- "MOTION TO STRIKE" [GONZALEZ & DCC]
- 'MOTION TO EXPEDITE WRIT OF MANDAMUS [SWANSON/DARROW]
This case addresses the enforcement of statutory appointment authority impressed upon the Respondents by R.C. 305.02. Because the context involves a vacancy in the office of county sheriff, the specific statutory requirements for one to receive such appointment, set forth in R.C. 311.01, are also essential to the determination of this case.
The procedures for appointment to public office complement Ohio election law in many respects. Thus, the crux of the Relators' Motion to Expedite Writ of Mandamus in this case is the suggestion to the Court that this case should be treated and scheduled as an expedited election case would be handled. As reflected in the Complaint, the Memorandum in Support of Writ, as well as the other filings to date by the parties, there appear to be no material factual disputes.
Rather, clearly-defined, legal questions control. Relators Swazison and Darrow maintain that the only vacancy which remains to be filled by appointYn.ent is that created when off icer-elect, Michael A. McDonald, announced that he was unable to assume office in January of 2013. The vacancy occurred January 7, 2013 and the applicable qualification date for appointment to that vacancy was February 6, 2013. "Here, McDonald indicated before the beginning of his term that he was unable to assume office, so the vacancy occurred on January 7, the first day of McDonald's term.. And 30 days after that date is the qualification date' February 6, 2013." State ex rel. Swanson v. Maier, ... .
Respondents on the other hand claim that there was a "vacancy caused by the removal of Maier" which resulted from the judicial ouster of Maier by this Court. Based upon that premise, the
Respondents then further contend that this "new vacancy" allowed for an "updated 30 day qualification date" extending from the Court's decision in Maier.
The Respondents have refused to recognize that the appointment authority they possess is confined to consideration of qualified candidates who satisfied the applicable qualification date of February 6, 2013 for the McDonald vacancy; instead, Respondents proceeded with consideration of applications meeting the so-called "updated" qualification date they created, for what the Respondents deem as the "Maier vacancy."
The legal issues implicated in this case are squarely presented and, for that additional reason, the Relators proposed expediting this case.
The Relators patterned their motion after the process very recently endorsed by the Court in the case of State ex rel. Cleveland Right to Life, Inc., et al. v. State of *Ohio Controlling Board, et al, Case No. 2013-1668.
In Cleveland Right to Life, the relators have commenced an action in mandamus and prohibition challenging whether the executive branch of the state can adopt the expansion of Medicaid spending. The complaint therein was filed on October 22, 2013, and on October 24, 2013, the relators filed a motion to expedite, relying upon former S.Ct.Prac.R. XIV, Section 4(c). Relators requested that, given the subject matter of the case, the Court place the case on a calendar substantially identical to that used in election matters. The Court sustained the motion to expedite by Entry filed on October 31, 2013.
Here, Relators request nothing more.
Wlile the Respondents have already proceeded with their meeting on December 11, 2013, and have already reappointed George T. Maier as Stark County Sheriff, that does not dispense with the need to proceed to the legal issues and claims alleged in this case. Relators maintain that this is still an appropriate case to place under an expedited calendar. The motion to expedite concerns only a schedule for the orderly advancement and determination of this case, and it does not seek any form of other, ancillary or injunctive relief.
WHEREFORE, Relators, Timothy A. Swanson and Lou Darrow, respectfully request that the Respondents motion to strike be overruled.
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