State ex rel. Jennewine v. Puffenberger

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Jennewine v. Puffenberger, Slip Opinion No. 2025-Ohio-3041.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2025-OHIO-3041

THE STATE EX REL. JENNEWINE v. PUFFENBERGER, JUDGE, ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Jennewine v. Puffenberger, Slip Opinion No.

2025-Ohio-3041.]

Mandamus—Quo warranto—R.C. 503.24—Writ of mandamus will not issue to

remove township-trustee board member from position to which she was

appointed by committee of five under R.C. 503.24, because quo warranto is

the exclusive remedy by which to have her removed and presiding probate-

court judge cannot be compelled by issuance of a writ of mandamus to

appoint someone to the position under the same statute since the position is

presently occupied—Writ denied.

(No. 2024-1238—Submitted May 13, 2025—Decided August 28, 2025.)

IN MANDAMUS, PROCEDENDO, AND QUO WARRANTO.

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The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,

DEWINE, BRUNNER, DETERS, HAWKINS, and SHANAHAN, JJ.

SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Relator, John Jennewine, an elected Sylvania Township trustee, seeks

a writ of mandamus against respondent, Judge Jack Puffenberger of the Lucas

County Probate Court. Jennewine asserts that R.C. 503.24 was not followed when

Jill Johnson was appointed as a Sylvania Township trustee, and he seeks a writ of

mandamus compelling Judge Puffenberger to appoint someone to the position

currently held by Johnson. For the following reasons, we deny the writ.

I. FACTS AND PROCEDURAL HISTORY

A. Facts

{¶ 2} Jennewine is a duly elected Sylvania Township trustee. Sylvania

Township is in Lucas County, and Judge Puffenberger is the presiding probate-

court judge in that county. A Sylvania Township–trustee position became vacant

when a trustee resigned on July 1, 2024, and the parties agree that under R.C.

503.24, Jennewine and the other remaining township trustee had 30 days after the

occurrence of the vacancy to fill it by appointing a replacement but they did not do

so.

{¶ 3} R.C. 503.24 prescribes the process for appointing a “person having

the qualifications of an elector” in the township to a vacant township-trustee

position for either the remainder of the unexpired term or until an election is held.

It provides that the remaining township trustees shall make an appointment to fill

the position within 30 days of the vacancy. Id. If no appointment is made by the

remaining township trustees within 30 days, “a majority of the persons designated

as the committee of five on the last-filed nominating petition of the township officer

whose vacancy is to be filled who are residents of the township” shall make an

appointment within a prescribed ten-day period. Id. “If at least three of the

committee members who are residents of the township cannot be found, or if that

number of such members fails to make an appointment” within the prescribed

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January Term, 2025

period, “the presiding probate judge of the county shall appoint a suitable person

having the qualifications of an elector in the township to fill the vacancy for the

unexpired term or until a successor is elected.” Id.

{¶ 4} In this case, no appointment was made by the remaining Sylvania

Township trustees within 30 days of the position’s vacancy; therefore, the

appointment authority fell to the designated committee of five. See id. All four

living members of the committee in this case are residents of Sylvania Township;

the fifth committee member died before the township-trustee vacancy occurred.

One member of the committee, after attending several meetings at which no

appointment to fill the vacant position occurred, stopped participating in committee

business and did not attend the August 8 meeting. The three remaining committee

members attended the August 8 meeting: two members verbally voted to appoint

Johnson as a township trustee, while the third member abstained from the vote. On

August 13, the two voting members signed Resolution 24-001, formalizing

Johnson’s appointment to the vacant township-trustee position. Johnson took the

oath of office as a Sylvania Township trustee on August 19. She submitted a bond

and has since participated in trustee meetings to the same extent as the elected

trustees.

B. Procedural history

{¶ 5} On August 30, Jennewine filed a complaint seeking writs of quo

warranto, procedendo, and mandamus, contesting Johnson’s appointment as a

township trustee. Jennewine filed his complaint after the county prosecutor

declined to initiate a quo warranto action to try to remove Johnson from the

appointed position. Jennewine named Judge Puffenberger and Johnson as

respondents.

{¶ 6} Both Judge Puffenberger and Johnson filed motions to dismiss. We

dismissed all claims against Johnson and dismissed her as a party to this case.

2024-Ohio-5572. We also dismissed the procedendo and quo warranto claims

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against Judge Puffenberger. Id. But we denied Judge Puffenberger’s motion to

dismiss Jennewine’s claim for a writ of mandamus against him and ordered the

judge to file an answer. Id. Finally, we granted an alternative writ, setting a

schedule for the submission of evidence and briefs. Id. Judge Puffenberger filed a

timely answer, and both parties submitted briefs in accordance with our order.

{¶ 7} Jennewine asserts that Johnson’s appointment to the township-trustee

position by the committee of five was not made in accordance with R.C. 503.24,

and he asks for a writ of mandamus compelling Judge Puffenberger to appoint

someone to the position.

II. ANALYSIS

A. Mandamus standard

{¶ 8} To be entitled to a writ of mandamus, a relator must show by clear

and convincing evidence (1) a clear legal right to the requested relief, (2) a

corresponding clear legal duty on the part of the respondent to provide it, and (3)

the lack of an adequate remedy in the ordinary course of the law. State ex rel.

Beavercreek Twp. Fiscal Officer v. Graff, 2018-Ohio-3749, ¶ 11. Mandamus is

“appropriate where there is a legal basis to compel a public entity to perform its

duties under the law.” State ex rel. Gen. Motors Corp. v. Indus. Comm., 2008-

Ohio-1593, ¶ 9. And when a judge fails to make an appointment to fill a vacancy

as required by statute, mandamus is an appropriate remedy by which to compel the

judge to make the appointment. See State ex rel. Union Cty. Veterans Serv. Comm.

v. Parrott, 2006-Ohio-92, ¶ 19.

B. Without a vacancy on the board of township trustees, Jennewine has no

clear legal right to the relief he seeks and Judge Puffenberger has no clear

legal duty to act

{¶ 9} Jennewine argues that the committee of five failed to comply with

R.C. 503.24 when it appointed Johnson to the board of township trustees and,

therefore, Judge Puffenberger is required to appoint someone to the position that

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January Term, 2025

Johnson now holds. But statutory noncompliance by the committee would not

automatically invalidate Johnson’s appointment and create a vacancy to be filled.

{¶ 10} “Under Ohio law, one who assumes public office, even if he is later

held to be ineligible to hold office, or if his appointment is later held invalid, is a

de facto officer.” State ex rel. Purola v. Cable, 48 Ohio St.2d 239, 241 (1976). “In

other words, to be a de facto officer, the person must appear to be in an office that

the person is not entitled to hold, and the person must appear to discharge the duties

and responsibilities of that office.” State ex rel. Calvaruso v. Brown, 2014-Ohio-

1018, ¶ 33. A de jure officer, by comparison, “is one who occupies his office

through a proper and legal election or appointment and during a constituted term.”

State ex rel. Witten v. Ferguson, 148 Ohio St. 702, 707 (1947).

{¶ 11} A de facto officer may be ousted from his position in a direct

proceeding against him, whereas a de jure officer cannot be. Purola at 242. “The

law validates the acts of de facto officers as to the public and third persons on the

ground that, although not officers de jure, they are, in virtue of the particular

circumstances, officers in fact . . . .” State ex rel. Paul v. Russell, 162 Ohio St. 254,

257 (1954). And “[w]hile a de facto officer is treated as a de jure officer, the de

facto officer’s actions are valid only until a proper challenge in a quo warranto

proceeding removes him from office.” State ex rel. Huron Cty. Prosecutor v.

Westerhold, 1995-Ohio-86, ¶ 16.

{¶ 12} The parties agree that Johnson has taken the township-trustee oath

of office, paid her bond, and participated in township-trustee-board meetings to the

same extent as elected trustees. By all accounts, Johnson is at least a de facto

officer. Therefore, the exclusive remedy to litigate her right to hold that office is

an action in quo warranto. See State ex rel. Martin v. Shabazz, 2024-Ohio-5450,

¶ 15 (“Quo warranto is the exclusive remedy to litigate the right of a person to hold

a public office.”).

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{¶ 13} Jennewine filed his complaint in this action in mandamus and quo

warranto, but we dismissed the quo warranto claim at the pleadings stage. See

2024-Ohio-5572. Only the attorney general, a county prosecutor, or a person

making a good-faith claim that he is entitled to the office may bring an action in

quo warranto to oust Johnson from office. See R.C. 2733.05 and 2733.06.

Jennewine is none of these. He contends, however, that “[q]uo warranto is not a

condition precedent to mandamus,” that he is “not asking this court to expel

[Johnson] as part of the mandamus claim,” and that “this court may issue a writ of

mandamus even if someone like Johnson is purporting to occupy the office at

issue.” But Jennewine conflates the two types of writ actions and the exclusive

remedies afforded by each.

{¶ 14} In his merit brief, Jennewine relies on State ex rel. Democratic

Executive Commt. v. Brown, 39 Ohio St.2d 157, 160 (1974) (lead opinion), for the

proposition that this court may issue a writ of mandamus to compel an appointing

authority to exercise his power of appointment. But it does not follow from Brown

that a writ of mandamus may be issued in this case to compel Judge Puffenberger

to make an appointment to the board of township trustees, because although R.C.

503.24 sets forth a legal duty for the presiding probate-court judge to make an

appointment, that duty does not attach until a vacancy exists for which an

appointment may be made and it does not operate to effect the removal of a public

officer. See id. at 159.

{¶ 15} While a writ of mandamus may be issued to compel an appointing

authority to exercise his power of appointment and fill a vacancy, see Union Cty.

Veterans, 2006-Ohio-92, at ¶ 19, it cannot be used to compel such action when no

vacancy exists, see State ex rel. Habe v. S. Euclid, 56 Ohio St.3d 117, 118-119

(1990) (writ of mandamus could not be issued to compel appointments to sergeant

positions in municipal police department, because no vacancies existed to which

appointments could be made when the petitioner filed his mandamus action).

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January Term, 2025

{¶ 16} Even assuming that Johnson’s appointment by the committee of five

is invalid for noncompliance with R.C. 503.24, because Johnson had already

assumed the position of township trustee when Jennewine filed this action and

remains in that position at least as a de facto officer, Jennewine cannot show that

he has a clear legal right to the relief he seeks. See Habe at 119. Further, a

township-trustee vacancy must exist for Judge Puffenberger to have a clear legal

duty to make an appointment under R.C. 503.24. Id. Since no such vacancy exists,

Judge Puffenberger does not have a clear legal duty to act.

{¶ 17} Because Jennewine has failed to satisfy the first two elements

required for mandamus relief, mandamus will not lie and we need not address the

third element.

III. CONCLUSION

{¶ 18} Because no township-trustee vacancy exists to which an

appointment could be made under R.C. 503.24, Jennewine has failed to show a

clear legal right to the relief he seeks or a clear legal duty on the part of Judge

Puffenberger to provide that relief. Accordingly, his mandamus claim fails, and we

deny the writ.

Writ denied.

__________________

Mayle, L.L.C., Andrew R. Mayle, Richard R. Gillum, Benjamin G.

Padanilam, and Nichole K. Papageorgiou, for relator.

Julia R. Bates, Lucas County Prosecuting Attorney, and Steven Papadimos,

Kevin A. Pituch, John A. Borell, and Evy M. Jarrett, Assistant Prosecuting

Attorneys, for respondent.

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