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Court Declares Johnson Entitled to Seat On Carlisle Village Council

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2011-1464. State ex rel. Johnson v. Richardson, Slip Opinion No. 2012-Ohio-57.
In Quo Warranto.  Writ granted.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-57.pdf

(Jan. 12, 2012) In a 7-0 decision announced today, the Supreme Court of Ohio issued a writ of quo warranto removing a member of the Carlisle Village Council, Scott Richardson, from office and declaring that a mayoral appointee, Terry Johnson, is entitled to that position.

The dispute arose when six village council members voted in June 2011 to name a replacement for a seventh member, Chad S. Johnson, who had resigned effective June 1, 2011 with two and a half years remaining in his term of office. In voting for candidates to serve out the unexpired term, three of the six council members voted for Richardson, two voted for Terry Johnson, and the remaining vote was cast for a third candidate, Cheryl Sweezy.

After a council member requested that the village law director render an opinion on the matter, the law director concluded that Richardson was entitled to the vacant council seat, and he was sworn in on June 30, 2011. That action was opposed by village mayor Timothy Humphries, who is also a member of the council. On July 1, 2011, the day after Richardson’s swearing in and 30 days after Chad Johnson’s resignation took effect, Humphries appointed Terry Johnson to fill the unexpired council term. Notwithstanding the mayor’s alternative appointment and request that Richardson remove himself from council proceedings, Richardson assumed the council seat and has purported to exercise the rights and duties of that office.

In August 2011 Terry Johnson filed an original action in the Supreme Court seeking a writ to remove Richardson from the council seat and recognize himself as the true holder of that office. In today’s unanimous per curiam opinion,  the Court upheld Johnson’s claim and issued the requested writ.

Quoting from the Carlisle village charter, the Court wrote: “Section 4.05(d) of the village charter governs the procedure to fill vacancies in the office of village council:  ‘Vacancies in the office of member of Council shall be filled within thirty (30) days by vote of a majority of the remaining members of Council. If a vacancy occurs in one (1) or more positions among members of Council elect, the Council of the new term shall appoint, by a majority vote, an eligible person or persons to fill the vacancy. (Emphasis added) ... If the Council fails to fill a vacancy within thirty (30) days following the occurrence of the vacancy, the power of Council to fill the vacancy shall lapse and the Mayor shall fill the vacancy by appointment immediately following the expiration of the said thirty (30) days.’”

“ ... The term ‘majority’ is not defined in the charter.  Undefined language used in a municipal charter must be construed according to its ordinary and common usage. ... The ordinary and common meaning of ‘majority’ is ‘[a] number that is more than half of a total; a group more than 50 percent.’ Black’s Law Dictionary (9th Ed. 2009). ‘A majority always refers to more than half of some defined or assumed set.’”

“Since three is not more than half of six, Richardson did not receive enough votes to fill the vacancy on the village council under the plain language of Section 4.05(d) of the Carlisle Charter.  We reached a comparable result in State ex rel. Smith v. Nazor (1939) ... a quo warranto case in which we held that a vote of three to two to one by the six remaining Ironton City Council members to fill a vacancy was insufficient to constitute the required majority vote. ... Therefore, in accordance with the plain language of Section 4.05(d) of the Carlisle Charter as well as our precedent, relator has established that Richardson is unlawfully holding and exercising the office of village council member.”

“Moreover, relator has also established that he is entitled to the office. The village council failed to fill the vacancy caused by Chad S. Johnson’s resignation within 30 days of the June 1 effective date of the resignation. The council’s failure to fill the vacancy within the time specified by the charter imposed a duty on the mayor to ‘fill the vacancy by appointment immediately following the expiration of said thirty (30) days.’ ... The mayor satisfied that duty by appointing relator, Terry Johnson, to fill the vacancy on July 1, 2011.”

“Because the pertinent facts are uncontroverted and establish relator’s  entitlement to the requested extraordinary relief, we grant a peremptory writ of quo warranto to oust respondent Scott Richardson from the office of Carlisle Village Council member and to declare relator, Terry Johnson, entitled to that office.”

Bradley D. Anderson, 937.223.9133, for Terry Johnson.

Alan G. Starkoff, 614.462.4938, for the Village of Carlisle and Scott Richardson.