THE STATE EX REL. ZEIGLER v. ZUMBAR
No. 2010-1570
Supreme Court of Ohio
June 23, 2011
129 Ohio St.3d 240, 2011-Ohio-2939
LANZINGER, J.
Submitted March 23, 2011
LANZINGER, J.
{¶ 1} In this original action in quo warranto, relator, Gary D. Zeigler, seeks to oust respondent, Alexander A. Zumbar, from the office of Stark County treasurer and to be reinstated to that office. Because Zeigler has established his entitlement to the requested extraordinary relief, we grant the writ.
I. Case Background
{¶ 2} Zeigler was elected Stark County treasurer in November 2008. During Zeigler‘s tenure as treasurer, his chief deputy, Vincent Frustaci, was alleged to have stolen up to $2,964,560 from the county treasury. Upon notice of the allegation, the state auditor initiated a special audit of the treasurer‘s office. In the special audit report, the state auditor found shortages in the county treasur
{¶ 3} In July 2010, the Stark County auditor requested that the Stark County prosecuting attorney institute a suit against Zeigler pursuant to
{¶ 4} Zeigler did not respond. On July 28, a complaint was filed in the Summit County Court of Common Pleas, in the name of the office of the Stark County treasurer, the state of Ohio, and the board of commissioners for recovery of the money from Frustaci, Zeigler, and sureties on bonds given by Zeigler for his term of office as county treasurer.1 The board of commissioners issued notices for special meetings to be held on August 2 and 12, 2010, “[t]o consider the status of the Treasurer‘s Office in light of [the] pending action by the Stark County Prosecutor pursuant to [R.C.] 321.37.” The common pleas court, however, granted a temporary restraining order on behalf of Zeigler, who wished to maintain the status quo pending resolution of a constitutional challenge that he intended to bring to
{¶ 5} On August 18, 2010, the board of commissioners adopted a resolution to hold a special meeting and hearing on August 23 to “consider the Special Audit Report and the Complaint,” “determine whether GARY D. ZEIGLER, Stark County Treasurer, has failed to make a settlement or to pay over money as prescribed by law,” and “determine whether the Board should remove such Stark County Treasurer pursuant to
{¶ 6} Zeigler declined to attend the special meeting and hearing on grounds that ”
{¶ 7} On the date of the special hearing, August 23, the common pleas court declared that ”
{¶ 8} On that same day, the board of commissioners conducted an evidentiary hearing at which the board found: “the evidence presented demonstrated that there is no factual question that * * * $2,964,560 * * * came into the county treasury, and that said money is missing, * * * that Treasurer Zeigler failed to make settlement or to pay over money that is prescribed by law,” and that “the evidence showed that the theft from the Stark County Treasury was not an isolated incident, but occurred over a long period of time during Treasurer Zeigler‘s tenure.” The board further found that “although Treasurer Zeigler committed no crime or malfeasance, [he] fail[ed] to appear and be heard about procedures he has implemented to restore the public‘s confidence that their tax dollars are protected in the future.” At the conclusion of the hearing, the board voted to remove Zeigler immediately from the office of Stark County treasurer pursuant to
{¶ 9} On September 7, 2010, Zeigler filed this action for a writ of quo warranto to oust Allbritain and to be reinstated to the office of Stark County treasurer. Allbritain filed an answer and a motion for judgment on the pleadings, but Kenneth N. Koher, appointed as Stark County treasurer on September 20, was substituted as respondent. The motion for judgment on the pleadings was denied, and an alternative writ was granted by this court. State ex rel. Zeigler v. Koher, 127 Ohio St.3d 1443, 2010-Ohio-5762, 937 N.E.2d 1034.
{¶ 11} This cause is now before the court for our consideration of the merits of Zeigler‘s quo warranto claim.
II. Analysis
A. Mootness and Laches
{¶ 12} Respondent asserts that we need not address the merits of Zeigler‘s quo warranto claim because it is both moot and barred by laches. Since Zeigler was removed from the office of county treasurer on August 23, 2010, there have been three successors to the office, with the last one, Zumbar, being elected to fill Zeigler‘s unexpired term.
{¶ 13} The fact that there have been three successors since Zeigler‘s removal does not bar his quo warranto claim. If this were true, an appointing authority could insulate its improper removal of a public officer by appointing multiple persons to the office in quick succession. We decline to interpret the pertinent law to sanction such an unreasonable result.
{¶ 14} Respondent relies upon cases distinguishable from this one. In the first, a court of appeals held that an appointee‘s quo warranto claim to the office of city law director was rendered moot by the expiration of the law director‘s term of office. State ex rel. Paluf v. Feneli (1995), 100 Ohio App.3d 461, 654 N.E.2d 360. However, the term of office from which Zeigler claims improper removal has not expired. See
{¶ 15} The second of respondent‘s cases involved an appointee in the classified civil service who had completed a probationary period. State ex rel. Newell v. Jackson, 118 Ohio St.3d 138, 2008-Ohio-1965, 886 N.E.2d 846. We held that “[t]o be entitled to a writ of quo warranto to oust a good-faith appointee, a relator must take affirmative action by either filing a quo warranto action or an injunction challenging the appointment before the appointee completes the probationary period and becomes a permanent employee.” Id. at ¶ 11. This is not a similar case. Moreover, Zeigler filed the action for declaratory and injunctive relief challenging
B. Lack of Adequate Remedy in the Ordinary Course of Law
{¶ 17} “Extraordinary writs like quo warranto provide extraordinary, not alternative remedies, and they will not lie where there exists an adequate remedy in the ordinary course of the law.” State ex rel. Johnson v. Talikka (1994), 71 Ohio St.3d 109, 110, 642 N.E.2d 353. “The alternate remedy must be complete, beneficial, and speedy in order to be an adequate remedy at law.” State ex rel. Beane v. Dayton, 112 Ohio St.3d 553, 2007-Ohio-811, 862 N.E.2d 97, ¶ 31.
{¶ 18} Respondent claims that Zeigler had two adequate remedies in the ordinary course of law, one by way of appeal from the common pleas court judgment in his action for declaratory and injunctive relief and one by administrative appeal from the board of commissioners’ removal order.
{¶ 19} An appeal from the common pleas court judgment in the action for declaratory and injunctive relief, however, is not an adequate remedy because it would not result in respondent‘s ouster. We have already rejected a similar argument. See State ex rel. Deiter v. McGuire, 119 Ohio St.3d 384, 2008-Ohio-4536, 894 N.E.2d 680, ¶ 20.
{¶ 20} Zeigler also may not appeal from his removal as treasurer if the proceedings were not quasi-judicial. State ex rel. McArthur v. DeSouza (1992), 65 Ohio St.3d 25, 27, 599 N.E.2d 268. We have held that “[p]roceedings of administrative officers and agencies are not quasi-judicial where there is no requirement for notice, hearing and the opportunity for introduction of evidence.” M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150, 61 O.O.2d 394, 290 N.E.2d 562, paragraph two of the syllabus.
{¶ 21} No statute required the board to conduct a hearing resembling a judicial trial before it removed him from the office of county treasurer pursuant to
{¶ 22} Zeigler has therefore established that he lacks an adequate remedy in the ordinary course of law.
C. Claim for Ouster and Reinstatement
{¶ 23} To be entitled to the writ of quo warranto, the relator must establish that the office is being unlawfully held and exercised by respondent and that relator is entitled to the office. Newell, 118 Ohio St.3d 138, 2008-Ohio-1965, 886 N.E.2d 846, ¶ 6. “[I]t is well settled that ‘quo warranto is the exclusive remedy by which one‘s right to hold a public office may be litigated.‘” Deiter, 119 Ohio St.3d 384, 2008-Ohio-4536, 894 N.E.2d 680, at ¶ 20, quoting State ex rel. Battin v. Bush (1988), 40 Ohio St.3d 236, 238-239, 533 N.E.2d 301. Zeigler claims that he is entitled to the writ because the statute that the board of commissioners relied on to remove him from office,
{¶ 24} We are first to presume the constitutionality of lawfully enacted legislation, and before a statute is struck down, “it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus. Zeigler‘s challenge is a facial challenge to the constitutionality of
{¶ 25} In evaluating Zeigler‘s facial challenge to
{¶ 26} We are also guided by the rule that statutes authorizing the removal of an incumbent from public office are quasi-penal in nature and should be strictly construed. See State ex rel. Ragozine v. Shaker, 96 Ohio St.3d 201, 2002-Ohio-3992, 772 N.E.2d 1192, ¶ 15. “Ohio law disfavors the removal of duly elected officials.” In re Removal of Sites, 170 Ohio App.3d 272, 2006-Ohio-6996, 866 N.E.2d 1119, ¶ 16. Thus, “[a]n elective public official should not be removed except for clearly substantial reasons and conclusions that his further presence in
{¶ 27} With these principles guiding our analysis, we consider Zeigler‘s claim that
D. The Statutes and the Ohio Constitution
{¶ 28} The statute authorizing ouster of a treasurer who cannot pay over money due the county treasury relies on another for its foundation.
{¶ 29} Under
{¶ 30}
{¶ 31}
{¶ 32} “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.”
{¶ 33}
{¶ 34} In this case, the complaint against Zeigler under
{¶ 35} We have considered a comparable statute and have concluded that it violated
{¶ 36} “It should be noted that this section clearly and concretely recognizes Ohio‘s obligation to the cardinal doctrines included within this phrase, ‘due process of law.’ It must have been clearly intended that a ‘complaint and hearing’ should be allowed ‘to all officers.‘”
{¶ 37} ” * * * ”
{¶ 38} “It may be said that this is not a criminal trial. True. But it is no less a condemnation for a crime, followed by a penalty, the ousting of a man from public office by three men, servants of the people it is true, but hardly qualified to put out of office without a hearing a public official who has been put into office by the majority votes of the sovereign people.
{¶ 39} “What the Constitution grants, no statute can take away.” Hoel, 105 Ohio St. at 487, 138 N.E. 230.
{¶ 40} In a similar fashion,
E. Lack of Evidence of Misconduct
{¶ 41} As respondent readily concedes, contrary to the Constitution‘s requirement of “misconduct involving moral turpitude” or “other cause provided by law,”
{¶ 42} Respondent argues that any defect in the plain language of
{¶ 43} Based on the foregoing, Zeigler has satisfied the burden to establish that
III. Conclusion
{¶ 44} We hold that because
Writ granted.
O‘CONNOR, C.J., and LUNDBERG STRATTON, CUPP, and MCGEE BROWN, JJ., concur.
PFEIFER and O‘DONNELL, JJ., dissent.
PFEIFER, J., dissenting.
{¶ 45} As the majority relates, to be entitled to the writ of quo warranto, the relator must establish that the office is being unlawfully held and exercised by respondent and that relator is entitled to the office. State ex rel. Newell v. Jackson, 118 Ohio St.3d 138, 2008-Ohio-1965, 886 N.E.2d 846, ¶ 6. The relator and the majority spend much of their time addressing the second requirement, but precious little on the first. Zeigler may well have a cause of action against his county commissioners. But that is not Zumbar‘s fight. Zeigler alleges nothing in Zumbar‘s qualifications or in the mechanics of the election that would make Zumbar‘s holding of the office unlawful.
{¶ 46} The focus of a quo warranto case needs to be the officeholder, not the former officeholder. In State ex rel. Hoel v. Brown (1922), 105 Ohio St. 479, 138 N.E. 230, the star case relied upon by the majority, the county prosecutor sought a writ of quo warranto to force the removal of the county treasurer who had been ordered removed by the board of county commissioners. That treasurer refused to leave office. This court found that G.C. 2713 could not provide the authority to oust him, because it was unconstitutional. Surely in this case, had Zeigler not agreed to leave office, the county could have brought a quo warranto case against him, and this court may well have held that
{¶ 47} Zeigler left his office, creating a vacancy. Zeigler did not attempt to prohibit the election from occurring that would provide his permanent replacement. He does not allege any impropriety in the nomination of Zumbar, nor in the election itself. He does not allege that Zumbar is somehow deficient in his qualification for office.
{¶ 48} Zumbar lawfully holds office. Whether Zeigler was improperly removed from office is a matter between him and the county commissioners. It is not something solvable by a writ of quo warranto. The world has moved on.
O‘DONNELL, J., concurs in the foregoing opinion.
John D. Ferrero, Stark County Prosecuting Attorney, and Ross A. Rhodes and Kathleen O. Tatarsky, Assistant Prosecuting Attorneys, for respondent.