While the SCPR does not see the above cited-arguments in Swanson/Darrow v. Gonzalez, et al (filed November 18th; response December 2nd) as being pivotal by any stretch of the imagination in the outcome of the case, the language does deserve some comment from a political perspective inasmuch as disenfranchisement is as much a political question - if not more than - a legal question.
DISENFRANCHISED THE MEMBERS OF THE DCC?
Hmm?
Really?
How about the 92 who voted for George Maier "assumed the risk" (lawyers Steve Okey and Warren Price will appreciate that language) that they might be voting for "an unqualified candidate" notwithstanding the opinion of lawyers Okey and Michael Thompson to the contrary.
Moreover, Stark County Prosecutor Ferrero "swore under oath" (i.e. in his affidavit) that his assessment was that George T. Maier was "unqualifed" to be sheriff under Ohio statutory law.
And it turns out that by virtue of the decision of Swanson v. Maier (quo warranto, filed February 12, 2013); decided November 6, 2013) Ferrero was right and Okey and Thompson were wrong on the law.
The SCPR believes that the compelling argument is that the 84 Darrow voters were the ones who were disenfranchised and that their candidate Lou Darrow "as a matter of 'the law of case Swanson v. Maier'" was illegally deprived of being Stark County sheriff for period of some nine months that George T. Maier was usurping the office.
It is interesting that Okey and Price twisted the Stark County Democratic Party Central Committee (SCDP-CC) vote in entirely the opposite direction and in doing so ignored the Supreme Court finding of George T. Maier being "unqualified" as of the SCDP-CC vote date of February 5th.
Hmm?
Just a little selective, gentlemen at the bar, no?
Hopefully, the Supreme Court sees through "what the SCPR believes to be" a specious argument at best.
RIG(GED) THE BALLOT IN FAVOR OF DARROW?
Another hmmmmmmmmmmmmmmmmm?
Who was it that insisted (Chairman Gonazalez, no?) that SCDP-CC members sign their ballots on February 5 in order to have their votes counted?
Who was it (Chairman Gonzalez, no?) that called a meeting of the SCDP Executive Committee meeting on November 23rd to make it a matter of the SCDP bylaws that voters sign their ballots?
And what do many think was/is the intended effect (denied by the party chairman) of having SCDP-CC members sign their ballot in an environment in which the party leadership is squarely behind George Maier?
Answer: "A chilling effect!"
Rigging?
Hmm?
If some of the 92 original votes (let's say five for discussion purposes) were "chilled" into voting the "party line," would it be fair to surmise that maybe, just maybe the effect of the signing requirement was tantamount to "rigging" the election?
Hmm?
The SCPR certainly understands that lawyers will do what lawyers think they have to do within the bounds of the law and minimum ethics to promote their clients' cause.
The Report's take is that the two points discussed above (i.e. "disenfranchisement" and "rig(ged") in this blog appear to be of the "let's throw everything in but the kitchen sink" variety.
Hmm?
A case of legal argument desperation?
THE REAL GONZALEZ ARGUMENT?
Nobody can miss it.
Its JURISDICTION, JURISDICTION & JURISDICTION some more!
Does the Supreme Court have the power to enforce its own order, in a nutshell.?
The only hope that the Gonzalez has on that issue of the case is if the justices think they are hamstrung by the case authority cited by Okey and Price in their brief.
It is axiomatic that Ohio's "court of last resort" on state issues determines its own jurisdiction.
And that is the "heart and soul" of the Gonzalez side of the case.
What is interesting about this argument, should it prove to be a winner, is that if Maier is appointed by the SCDP-CC again - given the position by the Swanson/Darrow camp THAT FEBRUARY 5TH IS "THE QUALIFICATION DATE on terrific authority.
How about the absolute finding by the Supreme Court itself in Swanson v. Maier?)
Hmm?
So?
Well, if the high court declines to grant or reject the requested order that the SCDP-CC limit the December 11th vote to Democrat Darrow and Republican Larry Dordea, and Maier is appointed once again, guess where Swanson is likely to go once again?
You've got it!
Right back to the Ohio Supreme Court with another quo warranto action.
Hmm?
So what does Maier gain from that?
The SCPR believes very little.
A second quo warranto likely will be decided much sooner than nine months and Stark Countians (what do they account for anyway?) could be witnessing another George Maier in and out exercise.
If he should win a second quo warranto he might be in office for shorter than he thinks.
The primary election for sheriff candidate is May 6, 2014.
The Maier forces are probably arrogant enough to think that there is no way their man will not win the Democratic primary.
But - as my mother used to say - "there is many of a slip between the cup and the lip!"
The just might be in for a big surprise given all the controversy, no?
Wouldn't that be a gas?
George Maier in office on an appointment pending a decision on a second quo warranto, but having lost the primary must vacate office on December 31, 2013.
Wouldn't that be "hunky-dory" for the need of law enforcement stability or Stark Countians?
Of course, what do they count for anyway?
Its the politicians who really matter, isn't it.
What's the expression?
Oh yes, "the public interest be damned!"
THE BEST ARGUMENT & RESULT FOR THE GONZALEZ SIDE OF THE CASE?
In talking with a lawyer acquaintance he brought of this argument as his opinion of being Gonzalez's best argument.
Here is the key language from page 12 of the Okey/Price response:
The relators' position clearly violates the intent of the statutes that govern the filling of vacancies in the office of sheriff.
A qualification date is set 30 days after a vacancy occurs. R.C. 311.01(H)(1). From between five and 45 days after a vacancy, the Central Committee has legal power to make an appointment. R.C. 305.02(C).
From this statutory timetable, it is evident that the legislative intent is to hold a vote of appointment close in time to when the applicants have established their qualifications.
The relators want to disregard this legislative intent and instead cling to a stale qualification date [February 5, 2013] that is now remote in time to the vote of appointment,
Turning the legislative intent on its head, the relators now seek to prohibit any effort to update the qualifications of the previous applicants.To sum up what the SCPR thinks the best Gonzalez argument made in the responsive pleading is, to wit:
And, the SCPR agrees. It does not make sense.
But The Report does not agree that the court should have changed the qualification date.
For the court to so would have been - in effect - a validation of George T. Maier having usurped the office.
And an extension of the qualification date would have resulted in the creation of a "legal fiction" that a second vacancy occurred with the Supreme Court's November 6th order.
The court was very clear in its decision that George T. Maier was never the legally qualified sheriff of Stark County.
The only vacancy that occurred took place on January 7, 2013 and the only possible qualification date remains February 6, 2013.
The SCPR thinks what the court overlooked and should have accounted for in fashioning and alternative selection remedy is the reality it would be impractical for the Stark Dems to meet within the few remaining days (probably about five days) within the January/February set of 45 days with the count of days resuming from the court's order issued November 6th.
Accordingly, the court should have done something like placing the "re-do" in the hands of the Stark County commissioners to appoint among Darrow and Dordea.
For if the Stark Dems failed to act in the remaining five days or so of the original 45 day period, it would have devolved on the Stark County commissioners to make the appointment.
But the court didn't pick up on the practicality factor.
Since the Dems did not within the five days remaining, the court can now in Swanson/Darrow v. Gonzalez et al acknowledge the reality and formally pass the task on to the Stark commissioners with the February 6, 2013 qualification date in tack.
As the SCPR has written many times (an expression borrowed from local attorney and civic activist Craig T. Conley): "The [Ohio] Supreme Court does not have to be right [or correct] in its decisions; it just has to be the Supreme Court."
Such is absolutely the case when it comes issues of state of Ohio law. There is no federal appeal on state questions.
It is a little bit surprising that Republican Larry Dordea has not filed some sort of action with the Supreme Court of a corrective nature.
Wouldn't it have been worth it to him to possibly enhance his chances of becoming the appointed sheriff for him to have asked the court to reconsider that part of the decision putting the matter back into the hands of the SCDP-CC?
Shouldn't he have been interested in finding a way (on the advice of "creative" legal counsel, of course) to get before the court the idea of remanding the appointment decision to the Stark County commissioners?
There are two Republicans (Creighton and Regula) on the Stark County Board of Commissioners, no?
While the SCPR is not suggesting that Creighton and Regula would make a commissioner appointment a political thing; they would not rule Dordea out as the Democrats have and will continue to do.
As a former Alliance police chief and current Hartville police chief who has served with distinction, the commissioners could feel quite comfortable in appointing Dordea, no?
It is interesting that he has stood by and apparently has not engaged legal counsel to see whether or not there was an avenue to get such a possibility before the court.
An appointed Larry Dordea or Lou Darrow, for that matter, if the commissioners go with Darrow, would close the issue of who is going to be Stark County sheriff until the Stark County voters decide next November.
However, a "re-do" by the SCDP-CC should George Maier be reappointed (unless the court endorses the Gonzalez view on the qualification date) makes it very likely that the Ohio Supreme Court will be facing a third case on the Stark County sheriff appointment process.
CONCLUSION
As indicated above, the only hope for Chairman Gonzalez in his zeal for George T. Maier being appointed, once again, sticking, would be for the court to act before December 11th and, in rendering a decision on the current litigation, change the qualification date to 30 days from November 6, 2013 (the date of the Swanson v. Maier decision), which, if the court were to do so, seemingly would likely result in a new qualification date of December 5, 2013 or thereabouts.
That the court will make such a change, the SCPR thinks, is unlikely. For the court to do so, as pointed out above, would require it to do some "legal fictionalizing."
The probable scenario is likely to be that the court either reaffirms the February 6, 2013 qualification date and limits the filed of candidates to Darrow or Dordea or, alternatively, does not act before December 11th thereby making and decision moot and therefore not judiciable (not capable of being decided).
The Report believes that it will be the latter course of action rather than the former.
But we shall see.
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