STEVE ADAMSON, et al., Plaintiffs-Appellants, v. DR. JUDITH VARNAU, CORONER, Defendant-Appellee.
CASE NO. CA2014-07-016
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BROWN COUNTY
12/30/2014
2014-Ohio-5739
S. POWELL, J.
CIVIL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case No. CVH2014-0267
Thomas G. Eagle Co., L.P.A., Thomas G. Eagle, 3386 North State Route 123, Lebanon, Ohio 45036, for defendant-aрpellee
OPINION
S. POWELL, J.
{¶ 1} Plaintiffs-appellants, Steve and Rebecca Adamson, appeal from the decision of the Brown County Court of Common Pleas denying and dismissing their complaint seeking to remove defendant-appellee, Dr. Judith Varnau, from her position as the duly elected Coroner for Brown County, Ohio. Since we find that there was insufficient evidence to warrant Dr. Varnau‘s removal from office pursuant to
{¶ 2} On April 16, 2014, the Adamsons filed a complaint pursuant to
{¶ 3} Specifically, as it relates to Zachary Adamson‘s death, the complaint alleged Dr. Varnau: (1) breached her duty to secure his valuable personal effects; (2) breached her duty to deliver firearms to the Brown County Sheriff, Dwayne Wenninger; and (3) breached her duty to notify Zachary‘s next of kin. In addition, the complaint alleged Dr. Varnau (4) breached her “duty to the public at large” by (a) failing to secure firearms at other death sсenes, by (b) failing to “treat all death scenes * * * as possible homicides,” and by (c) failing to treat the deceased bodies she encountered with the “degree and respect owed to the citizens of Brown County, whether alive or decеased.” Finally, the complaint alleged Dr. Varnau (5) engaged in gross neglect of her duties by placing “personal interests above the interest of the citizens of Brown County, Ohio” and (6) engaged in general misfeasance, malfeasance and nonfeasance through the (a) commission of numerous violations of her statutory duties and by (b) exercising poor judgment while acting in her capacity as Brown County Coroner, thereby warranting her removal.
{¶ 4} The matter proceeded to a bench trial held before the common pleas court that
{¶ 5} The Adamsons now appeal from the common pleas court‘s decision denying and dismissing their complaint, raising two assignments of error for review.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED BY FAILING TO DETERMINE THAT THE CORONER‘S CONFISCATION AND DISTRIBUTION OF PERSONAL PROPERTY AND INTENTIONALLY POSTING A DECEDENT‘S SOCIAL SECURITY NUMBER ON HER WEBSITE CONSTITUTE MALFEASANCE, AND EACH OCCURRENCE IS GROUNDS FOR REMOVAL FROM OFFICE.
{¶ 8} Assignment of Error No. 2:
{¶ 9} THE TRIAL COURT ERRED BY FAILING TO DETERMINE THAT THE CORONER‘S REPEATED REFUSAL TO DELIVER DECEDENTS’ FIREARMS TO LAW ENFORCEMENT CONSTITUTES WILLFUL MISCONDUCT, AND EACH OCCURRENCE IS GROUNDS FOR REMOVAL.
{¶ 10} Proceedings to remove a public officer are quasi-penal in nature and should be strictly construed. Petitioners for the Removal of Stringer v. Stringer, 11th Dist. Trumbull No. 3664, 1986 WL 3532, *2 (Mar. 21, 1986), citing McMillen v. Diehl, 128 Ohio St. 212, 214-215 (1934). To that end,
public officers who willfully and flagrantly exercise authority or power not authorized by law, refuse or willfully neglect to enforce the law or to perform any officiаl duty imposed upon them by law, or are guilty of gross neglect of duty, gross immorality, drunkenness, misfeasance, malfeasance, or nonfeasance are guilty of misconduct in office and may be removed from office by a judgment of forfeiture оf office.
State ex rel. Ragozine v. Shaker, 96 Ohio St.3d 201, 2002-Ohio-3992, ¶ 9, citing
{¶ 11} The burden of proof that must be met before a public official can be removed is clear and convincing evidence. In re Removal of Kuehnle, 161 Ohio App.3d 399, 2005-Ohio-2373, ¶ 85 (12th Dist.). “Clear and convincing evidence means that measure or degree of proof that is more than a mere preponderance of the evidence but not to the extent of such certainty as is required beyond a reasonable doubt in criminal cases, and that will produce in the mind of the trier of facts a firm belief or conviсtion as to the facts sought to be established.” Id., citing In re Election of November 6, 1990 for the Office of Atty. Gen. of Ohio, 58 Ohio St.3d 103, 106 (1991), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶ 12} The law, however, does not favor the removal of duly elected officials and a removal should not be ordered lightly for minor or isоlated infractions. Kuehnle at ¶ 85 and 87; Stringer at *2. In turn, “[e]lected officials should not be removed from office absent substantial reasons and the conclusion that their continued presence harms the public welfare.” 2,867 Signers of Petition for Removal of Mack v. Mack, 66 Ohio App.2d 79, 82 (9th Dist.1979), citing State ex rel. Corrigan v. Hensel, 2 Ohio St.2d 96, 100 (1965). When
{¶ 13} At the outset, Dr. Varnau argues the Adamsons’ appeal must be dismissed because they did not properly comрly with procedural requirements to bring a removal action contained in
{¶ 14} Dr. Varnau also argues this appeal must be dismissed because this court has no jurisdiction to address the Adamsons’ two assignments of errоr raised on appeal. In support of this claim, Dr. Varnau again cites to
{¶ 15} Throughout their two assignments of error, the Adamsons argue the decision of the common pleas court was in error because they provided evidence demonstrating Dr. Varnau engaged in malfeasanсe and willful misconduct, thereby warranting her removal. Whether Dr. Varnau‘s alleged actions rise to the level of malfeasance and willful misconduct which required removal from office was a question for the common pleas court to determine. As the trial court noted, Dr. Varnau‘s mistakes in the performance of her official duties did not rise to the level of gross neglect of duty and were not “sufficient” to warrant removal pursuant to
{¶ 16} It is well-established that “[s]ufficiency of the evidenсe is a question of law * * *” Hausser v. Keefer, 9th Dist. Wayne No. 2569, 1991 WL 2000, *1 (Jan. 9, 1991). We have previously stated that “[o]n appeal, this court must review the record to determine whether sufficient evidence was presented to satisfy the required degree of proof.” Kuehnle, 2005-Ohio-2373 at ¶ 85, citing In re Wingo, 143 Ohio App.3d 652 (4th Dist.2001). In that case we werе reviewing the common pleas court‘s decision granting the removal of three school board members from their positions on the school board following a bench trial, a decision which required this court to review the sufficiency of the evidence presented to support the removal, not whether that decision was against the manifest weight of the evidence. See id. at ¶ 114 (“The state of the record is such that the trial court could have found gross neglect of duty, misfeasance, malfeasance, or nonfeasance with respect to preparation of [meeting] minutes“).
{¶ 17} The Fourth District Court of Appeals reached a similar decision in In re Removal of Sites, 170 Ohio App.3d 272, 2006-Ohio-6996 (4th Dist.), a decision which also addressed the removal of three school board members from their positions on the school board, albeit following a jury trial. As the Fourth District stated in Sites:
The precise argument appellants advance in the case sub judice
is that insufficient evidence supports the jury‘s verdicts. Hоwever, sufficiency of the evidence is generally a question of law. Thus, we possess the authority to review the issue of whether sufficient evidence supports the jury‘s verdicts.
Id. at ¶ 15. The Fourth District also noted that “to uphold the jury verdicts in the case sub judiсe, sufficient evidence must appear in the record to establish any one of the instances of alleged misconduct.” Id. at ¶ 18.
{¶ 18} As this is an appeal from the common pleas court‘s decision denying the Adamsons’ complaint under
{¶ 19} Although we affirm the trial court‘s decision dismissing the complaint, we nevertheless find it necessary to address the underlying hostility and political strife between Dr. Varnau and the Brown County Sheriff‘s Office, partiсularly Sheriff Wenninger. Simply stated, these battles do not serve the best interests of the Brown County citizenry and project
{¶ 20} After reviewing the entirety of the record submitted in this matter, we agree with the common pleas court‘s decision which found that “the narrow view of jurisdictional policy” between Dr. Varnau and Sheriff Wenninger is “cumbersome, inefficient, ineffectual and unnecessary,” and “clearly not well suited to best practices.” However, just as the common pleas court found, this case is not аbout whether the citizens of Brown County are being properly served by their duly elected officials, for “[t]hat is a question for the ballot box, not the court.”
{¶ 21} The assignments of error are overruled and the judgment of the common pleas court is affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.