holding that although the county sheriff was a political appointment, the qualifications for sheriff were set by the General Assembly and “the courts may be called upon in a quo warranto action such as this one to make a determination whether an appointee meets those qualifications”
How later courts described this case
- holding that although the county sheriff was a political appointment, the qualifications for sheriff were set by the General Assembly and “the courts may be called upon in a quo warranto action such as this one to make a determination whether an appointee meets those qualifications”
Written by the judges who cited it.
The opinion
[Cite as State ex rel. Swanson v. Maier, 137 Ohio St.3d 400, 2013-Ohio-4767.]
THE STATE EX REL. SWANSON v. MAIER.
[Cite as State ex rel. Swanson v. Maier, 137 Ohio St.3d 400, 2013-Ohio-4767.]
Quo Warranto to oust county sheriff—Appointed sheriff lacks statutory
qualifications necessary to be sheriff—R.C. 311.01—Writ granted.
(No. 2013-0274—Submitted July 9, 2013—Decided November 6, 2013.)
IN QUO WARRANTO.
____________________
Per Curiam.
{¶ 1} This is a case in quo warranto challenging the qualifications of
George T. Maier, who was appointed to the office of Stark County sheriff.
{¶ 2} The person elected in 2012 to the office of Stark County sheriff,
Michael A. McDonald, could not assume the office for health reasons. The Stark
County commissioners, under R.C. 311.01 and 305.02(F), appointed relator,
Timothy A. Swanson, as acting sheriff until someone could be appointed to
occupy the office. Because the sheriff-elect was a Democrat, the Stark County
Democratic Central Committee (“DCC”) was responsible for appointing a
qualified person to occupy the office under R.C. 305.02(B). One of the applicants
for the appointment was respondent, George T. Maier. Despite concerns
expressed by several members at the DCC meeting that Maier did not meet the
qualifications for county sheriff, the DCC appointed him.
{¶ 3} Swanson filed this original action in quo warranto, claiming that
Maier does not meet the qualifications to assume the office of sheriff and that
Swanson remains acting sheriff and therefore has standing to bring this action.
{¶ 4} Because Maier fails to meet the statutory qualifications to be a
county sheriff, we grant the writ of quo warranto and reinstate Swanson as acting
sheriff of Stark County until the DCC appoints a qualified person.
SUPREME COURT OF OHIO
Facts1
{¶ 5} Swanson served as sheriff of Stark County from 1999 until
February 2013. He was appointed to the position in 1999 and was elected in
2000, 2004, and 2008. He decided not to run in 2012.
{¶ 6} At the 2012 election, Michael A. McDonald, a Democrat, was
elected sheriff, but before he could take office in January 2013, he notified the
Stark County commissioners that for health reasons, he would not be able to
assume the duties of sheriff.
{¶ 7} Under R.C. 311.01 and 305.02(F), the county commissioners were
authorized to appoint an acting sheriff until a sheriff could be appointed by the
DCC. The Stark County commissioners appointed Swanson acting sheriff.
Swanson took the oath and was bonded as acting sheriff.
{¶ 8} Because the sheriff-elect was a Democrat, R.C. 305.02(B) gives
the DCC authority to appoint a qualified person to assume the office of sheriff in
place of the sheriff-elect. Three people submitted applications to the DCC to be
appointed Stark County sheriff. Maier was one of these applicants. He submitted
an application and supporting documents.
{¶ 9} On February 4, 2013, another applicant for the office, Lou Darrow,
filed an action in prohibition in this court to restrain the DCC from proceeding
with a meeting to appoint the sheriff, because he challenged Maier’s
qualifications. State ex rel. Darrow v. Stark Cty. Democratic Cent. Commt.,
Supreme Court case No. 2013-0211. This court ultimately dismissed that action
on Darrow’s application. 134 Ohio St.3d 1461, 2013-Ohio-476, 982 N.E.2d 737.
{¶ 10} While the prohibition action was pending, the DCC held its
meeting, on February 5, 2013, and voted under R.C. 305.02(B) for a replacement
1. Maier objects to certain portions of the deposition testimony submitted in this case. Our
decision does not rely on those portions of the record.
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January Term, 2013
sheriff. Swanson alleges that the DCC made no effort to determine whether
Maier met the qualifications for sheriff set forth in R.C. 311.01.
{¶ 11} At the DCC meeting, John D. Ferrero, a member of the committee
who is also the Stark County prosecuting attorney, told the committee that it had a
duty to determine whether the candidates met the qualifications for sheriff under
the statute. Ferrero had reviewed Maier’s qualifications and told the committee
that he believed that Maier did not meet the statutory requirements for a candidate
for sheriff.
{¶ 12} Maier received a majority of the committee vote for sheriff, and
based on the vote, he assumed the office of Stark County sheriff. Swanson claims
that because Maier was not legally qualified to assume the office of sheriff under
R.C. 311.01, his appointment was a nullity, leaving Swanson the duly appointed
acting sheriff until a qualified successor is properly appointed.
{¶ 13} As part of the process of being appointed sheriff, on January 16,
2013, Maier submitted an application to the Stark County Court of Common Pleas
as required by R.C. 311.01(F)(1). The application presents the evidence that
Maier claims shows that he meets the qualifications to be sheriff. Additional
evidence was adduced at depositions.
{¶ 14} Maier was employed by the Ohio Department of Public Safety
from May 21, 2007, to January 11, 2011. Most of Maier’s tenure at the
Department of Public Safety was as assistant director. He testified that from July
24, 2008, until January 7, 2011, he was a full-time agent for the Ohio
Investigative Unit of the Department of Public Safety as part of his duties as the
assistant director of the Department of Public Safety. He also supervised several
investigative units of the department. From January 1 until January 11, 2011 (11
days), he was interim director of the Department of Public Safety.
{¶ 15} Maier testified that he was “in the chain of command as the
civilian authority” over the Ohio Investigative Unit, Ohio Homeland Security, and
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SUPREME COURT OF OHIO
other peace-officer units. The superintendent of the Ohio Highway Patrol—who
holds the rank of colonel—reported to Maier on active investigations, and Maier
oversaw and helped manage those investigations. He also was an agent of and
helped manage the Ohio Investigative Unit, which investigates liquor violations
and food-stamp fraud.
{¶ 16} In addition, Maier was a deputy in the Harrison County sheriff’s
office in January 2013. He was in that position only a very short time and
actually worked only two eight-hour shifts. He was also the safety and service
director for the city of Massillon, starting in January 2012.
Analysis
A. Oral argument is unnecessary to decide this case
{¶ 17} Maier has moved for oral argument in this case. His only
argument is that the issues are complex and oral argument would allow the parties
to address any of the court’s concerns. Swanson states that the evidence
submitted is sufficient for the court to decide this case. We agree with Swanson.
{¶ 18} “Oral argument is not required in an original action in this court;
instead, oral argument is discretionary in these cases.” State ex rel. Mun. Constr.
Equip. Operators’ Labor Council v. Cleveland, 114 Ohio St.3d 183, 2007-Ohio-
3831, 870 N.E.2d 1174, ¶ 42. “Nevertheless, we have discretion to grant oral
argument pursuant to S.Ct.Prac.R. IX(2)(A) [now S.Ct.Prac.R. 17.02(A)], and in
exercising this discretion, we consider whether the case involves a matter of great
public importance, complex issues of law or fact, a substantial constitutional
issue, or a conflict among courts of appeals.” State ex rel. Davis v. Pub. Emps.
Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 15.
{¶ 19} However, here, the parties’ briefs and evidence are sufficient to
resolve the issues raised in this case. See State ex rel. Allen v. Warren Cty. Bd. of
Elections, 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507, ¶ 21.
Therefore, we deny Maier’s request for oral argument and proceed to the merits.
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January Term, 2013
B. Swanson has standing as a relator in quo warranto
{¶ 20} As a preliminary matter, Maier makes several arguments
questioning Swanson’s standing to file an action in quo warranto; all of these
arguments lack merit. Quo warranto is the exclusive remedy to litigate the right
of a person to hold a public office. State ex rel. Deiter v. McGuire, 119 Ohio
St.3d 384, 2008-Ohio-4536, 894 N.E.2d 680, ¶ 20; State ex rel. Ebbing v.
Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶ 8, citing State
ex rel. Johnson v. Richardson, 131 Ohio St.3d 120, 2012-Ohio-57, 961 N.E.2d
187, ¶ 15. “ ‘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.’ ” Id., quoting State ex rel. Zeigler v. Zumbar, 129
Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 23.
{¶ 21} Maier argues that Swanson is not legally entitled to the office of
county sheriff and lacks standing. We have held that to establish standing, a
relator in quo warranto “need not prove his own title beyond all doubt. He need
only establish his claim ‘in good faith and upon reasonable grounds.’ ” State ex
rel. Hanley v. Roberts, 17 Ohio St.3d 1, 6, 476 N.E.2d 1019 (1985), quoting State
ex rel. Ethell v. Hendricks, 165 Ohio St. 217, 135 N.E.2d 362 (1956), paragraph
three of the syllabus; State ex rel. Halak v. Cebula, 49 Ohio St.2d 291, 293, 361
N.E.2d 244 (1977). However, “[a] mere possibility of appointment does not
constitute entitlement in any way.” Id.
{¶ 22} Swanson asserts, and Maier does not disagree, that he was lawfully
appointed acting sheriff. Swanson has asserted in good faith and on reasonable
grounds that if Maier is ousted, he would be entitled to the office of county sheriff
until a qualified sheriff is appointed by the DCC. He is not asserting “[a] mere
possibility of appointment,” but rather that he was properly appointed as the
acting holder of the office and that he still holds it pending the appointment of a
qualified candidate by the DCC.
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SUPREME COURT OF OHIO
{¶ 23} Maier argues that Swanson is retired and has no interest in being
sheriff of Stark County. However, Swanson’s long-term intent to be retired is
irrelevant. He does not assert that he is entitled to the office for its entire current
term, but only until the DCC appoints a qualified applicant to occupy the office.
{¶ 24} We hold that Swanson has standing to bring this action in quo
warranto.
{¶ 25} Maier also argues that the qualifications of a county sheriff are a
matter for the local board of elections to determine, or, in the case of a vacancy,
for the central committee of the appropriate political party, and not the court.
Essentially, Maier asserts that the determination of qualifications for sheriff in this
circumstance is a political question outside the realm of the courts. This argument
is also without merit.
{¶ 26} The DCC has a responsibility in the first instance to determine the
qualifications for its appointee for sheriff. However, the qualifications for sheriff
are set by the General Assembly in R.C. 311.01, and the courts may be called
upon in a quo warranto action such as this one to make a determination whether
an appointee meets those qualifications.
C. Maier does not meet the statutory qualification for county sheriff
{¶ 27} R.C. 311.01 expressly prohibits the appointment of a candidate for
county sheriff who does not meet the specific statutory requirements set out in
that section. Specifically, subsection (B) states, “[N]o person is eligible to be a
candidate for sheriff, and no person shall be elected or appointed to the office of
sheriff, unless that person meets all of the following requirements: * * *.” The
requirements at issue here are found in subsections (B)(8) and (B)(9):
(B) Except as otherwise provided in this section, no person
is eligible to be a candidate for sheriff, and no person shall be
6
January Term, 2013
elected or appointed to the office of sheriff, unless that person
meets all of the following requirements:
***
(8) The person meets at least one of the following
conditions:
(a) Has obtained or held, within the four-year period ending
immediately prior to the qualification date, a valid basic peace
officer certificate of training issued by the Ohio peace officer
training commission or has been issued a certificate of training
pursuant to section 5503.05 of the Revised Code, and, within the
four-year period ending immediately prior to the qualification date,
has been employed as an appointee pursuant to section 5503.01 of
the Revised Code or as a full-time peace officer as defined in
section 109.71 of the Revised Code performing duties related to
the enforcement of statutes, ordinances, or codes;
(b) Has obtained or held, within the three-year period
ending immediately prior to the qualification date, a valid basic
peace officer certificate of training issued by the Ohio peace
officer training commission and has been employed for at least the
last three years prior to the qualification date as a full-time law
enforcement officer, as defined in division (A)(11) of section
2901.01 of the Revised Code, performing duties related to the
enforcement of statutes, ordinances, or codes.
(9) The person meets at least one of the following
conditions:
(a) Has at least two years of supervisory experience as a
peace officer at the rank of corporal or above, or has been
appointed pursuant to section 5503.01 of the Revised Code and
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SUPREME COURT OF OHIO
served at the rank of sergeant or above, in the five-year period
ending immediately prior to the qualification date;
(b) Has completed satisfactorily at least two years of post-
secondary education or the equivalent in semester or quarter hours
in a college or university authorized to confer degrees by the Ohio
board of regents or the comparable agency of another state in
which the college or university is located or in a school that holds a
certificate of registration issued by the state board of career
colleges and schools under Chapter 3332. of the Revised Code.
R.C. 311.01(B). Thus, to qualify for county sheriff, a candidate must meet the
qualifications of R.C. 311.01(B)(8)(a) or (b) as well as R.C. 311.01(B)(9)(a) or
(b). In other words, Maier need not meet all four qualifying conditions, but must
meet at least one under subsection (B)(8) and one under subsection (B)(9).
{¶ 28} The “qualification date” referred to in R.C. 311.01(B) is defined in
R.C. 311.01(H):
(H) As used in this section:
(1) “Qualification date” means the last day on which a
candidate for the office of sheriff can file a declaration of
candidacy, a statement of candidacy, or a declaration of intent to
be a write-in candidate, as applicable, in the case of a primary
election for the office of sheriff; the last day on which a person
may be appointed to fill a vacancy in a party nomination for the
office of sheriff under Chapter 3513. of the Revised Code, in the
case of a vacancy in the office of sheriff; or a date thirty days after
the day on which a vacancy in the office of sheriff occurs, in the
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January Term, 2013
case of an appointment to such a vacancy under section 305.02 of
the Revised Code.
Here, McDonald indicated before the beginning of his term that he was unable to
assume the office, so the vacancy occurred on January 7, the first day of
McDonald’s term. And 30 days after that date is the “qualification date,”
February 6, 2013.
{¶ 29} As explained above, to qualify for county sheriff, a candidate must
meet the qualifications of R.C. 311.01(B)(8)(a) or (b). Maier acknowledges that
he is not qualified under (B)(8)(b), but asserts that he is qualified under (B)(8)(a).
To qualify under (B)(8)(a), Maier must (1) have held or obtained a valid
certificate of peace-officer training within the four years immediately prior to the
qualifying date and (2) have been employed within the four years immediately
prior to the qualifying date as a highway patrol officer or “as a full-time peace
officer as defined in section 109.71 of the Revised Code performing duties related
to the enforcement of statutes, ordinances, or codes.”
{¶ 30} The main challenge by Swanson is that Maier was not employed as
a full-time peace officer within the four years immediately preceding the
qualifying date. While Maier was a highway patrol officer at one time, his
employment with the patrol ended in May 2007, which was before the qualifying
time period.
{¶ 31} However, Maier has held two other positions that he asserts qualify
him under R.C. 311.01(B)(8)(a). First, he was assistant director (and for a short
time, interim director) of the Department of Public Safety from May 21, 2007,
until January 11, 2011. He asserts that during his tenure, he acted as a “peace
officer” and therefore meets the (B)(8)(a) qualification. The term “peace officer”
is defined in R.C. 109.71 as, among other things, “[e]nforcement agents of the
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department of public safety whom the director of public safety designates under
section 5502.14 of the Revised Code.” R.C. 109.71(A)(5).
{¶ 32} Maier, when he was assistant director of the Department of Public
Safety, was appointed an enforcement agent under R.C. 5502.14. Specifically,
the director, Cathy Collins-Taylor, appointed him an enforcement agent of the
Ohio Investigative Unit of the Department of Public Safety starting on July 24,
2008. His status as an enforcement agent was terminated when his service as
assistant director ended on January 7, 2011. Moreover, he worked with agents in
the field, in surveillance and making arrests on search warrants and raids. He
carried a badge and a weapon. We find that Maier was a “peace officer” as
defined in R.C. 109.71 from July 24, 2008, until January 7, 2011.
{¶ 33} The pivotal question is whether Maier was a “full-time” peace
officer during that time. There are two aspects to making this determination. The
first is whether Maier worked the number of hours required to be a full-time
employee. For state employees, that means “an employee whose regular hours of
duty total eighty hours in a pay period in a state agency.” Ohio Adm.Code 123:1-
47-01(A)(37). Maier was clearly a full-time employee at the Department of
Public Safety under that definition.
{¶ 34} The second aspect is whether Maier was a peace officer on a full-
time basis. The Ohio attorney general has addressed the meaning of “full-time” in
the context of R.C. 311.01. 2001 Ohio Atty.Gen.Ops. No. 026. The attorney
general determined that the definition of “full-time” should be based on its
ordinary meaning and common usage. Id. at 5. After reviewing several
definitions of “full-time,” the attorney general concluded that a person is
employed as a “ ‘full-time’ law enforcement officer for purposes of R.C.
311.01(B)(8)(b) when the person’s work as a law enforcement officer takes all of
his regular working hours.” Id. at 6. We accept and adopt the attorney general’s
definition of “full-time” for purposes of R.C. 311.01(B).
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January Term, 2013
{¶ 35} The question then is whether Maier’s work as a peace officer when
he was assistant director of the Department of Public Safety took “all of his
regular working hours.” The job description for assistant director indicates many
tasks that would be performed by a “peace officer,” including supervision and
direction of all criminal investigations, direction and coordination of requests for
background checks, and oversight of non-highway-patrol investigations. He
directed the Bureau of Motor Vehicles, the State Highway Patrol, Emergency
Medical Services, Emergency Management Agency, and the Ohio Investigative
Unit. In addition, the administrative form used by the attorney general to
document peace-officer appointments shows that the director of the Department
of Public Safety appointed him as a full-time enforcement agent.
{¶ 36} On the other hand, Maier admits that the scope of his full-time job
went beyond supervising and directing criminal investigations and involved the
supervision of eight divisions with nearly 4,000 employees. The job description
includes some tasks that are not specifically related to law enforcement, such as
supervising the human-resources office, equal-opportunity programs, and
collective bargaining, as well as defining the department’s goals and formulating
the department’s policies. The job description lists the criminal-investigation
aspect of the job within the duties that take up 40 percent of the job holder’s time.
{¶ 37} We find that while Maier made law enforcement a central theme of
his service as assistant director of the Department of Public Safety, he was not a
“full-time peace officer” as required by R.C. 311.01(B)(8)(a), because his duties
as a peace officer did not take “all of his regular working hours.”
{¶ 38} Maier also suggests that his very brief stint as a deputy sheriff of
Harrison County satisfied the R.C. 311.01(B)(8)(a) requirement that he was
employed as a full-time peace officer within the four years immediately prior to
the qualifying date. Specifically, he worked a single weekend, January 12 and 13,
2013. While his work as a deputy sheriff did take “all of his regular working
11
SUPREME COURT OF OHIO
hours,” he did not satisfy the other aspect of “full-time”—that is, he was not a
full-time employee of the Harrison County Sheriff’s Office. The definition of
“full-time” for county employees is set forth in R.C. 325.19:
(K) As used in this section:
(1) “Full-time employee” means an employee whose
regular hours of service for a county total forty hours per week, or
who renders any other standard of service accepted as full-time by
an office, department, or agency of county service.
Neither party provided evidence that the Harrison County Sheriff’s Office accepts
less than 40 hours of service a week as full-time employment, and in any case, it
is unlikely that working a single weekend would count as full-time employment.
Thus, Maier’s short stint as a deputy sheriff in Harrison County did not make him
a “full-time peace officer” for purposes of R.C. 311.01.
{¶ 39} As he satisfies neither R.C. 311.01(B)(8)(a) nor (b), Maier does not
meet the qualifications for a county sheriff. We need not explore his
qualifications under R.C. 311.01(B)(9), because he meets neither criterion in R.C.
311.01(B)(8).
Conclusion
{¶ 40} Maier fails to meet the criteria in R.C. 311.01(B) to be a county
sheriff. We grant a writ of quo warranto ousting Maier as Stark County sheriff
and reinstating Swanson as acting sheriff to serve until the DCC, pursuant to R.C.
305.02(B), appoints a person qualified under R.C. 311.01 to assume the office of
Stark County sheriff.
Writ granted.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and FRENCH,
JJ., concur.
12
January Term, 2013
PFEIFER and O’NEILL, JJ., dissent.
____________________
PFEIFER, J., dissenting.
{¶ 41} In State ex rel. Wolfe v. Delaware Cty. Bd. of Elections, 88 Ohio
St.3d 182, 724 N.E.2d 771 (2000), I dissented, writing:
The statute at issue, R.C. 311.01, is overly restrictive
without a rational basis. I would find it unconstitutional.
R.C. 311.01 is denying Ohio citizens a meaningful choice
in electing sheriffs. In Ohio’s small counties, R.C. 311.01
effectively rules out competition. Active police officers cannot run
for sheriff because as classified civil servants they are prohibited
from political activity. R.C. 124.57. A sheriff’s deputy in an
unclassified position could run for office, but an officer running
against his boss is not a realistic possibility. Indeed, even the
Attorney General of this state, defined by statute as our “chief law
officer,” R.C. 109.02, would not be qualified to be a county sheriff
under R.C. 311.01. See, e.g., R.C. 311.01(B)(8).
Reasonable, nondiscriminatory restrictions upon voting
rights are generally upheld where the state’s important regulatory
interests justify the restrictions. Burdick v. Takushi (1992), 504
U.S. 428, 434, 112 S.Ct. 2059, 2063-2064, 119 L.Ed.2d 245, 253-
254. R.C. 311.01 does not further the regulatory interests of the
state. Stifled competition does not yield better sheriffs.
Id. at 186-187 (Pfeifer, J., dissenting).
{¶ 42} Unfortunately, nothing has changed in the meantime. The example
I gave in Wolfe, that the attorney general, the chief law officer for the state, does
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SUPREME COURT OF OHIO
not meet the statutory requirements to be a county sheriff, is still true. And today,
this court holds that a person who has been the assistant director of the
Department of Public Safety is unqualified to be a county sheriff.
{¶ 43} I would liberally construe the qualifications contained in R.C.
311.01. In my opinion, a person who served within the qualifying time period as
an enforcement agent of the Ohio Investigative Unit of the Department of Public
Safety satisfies the requirements of R.C. 311.01. In my opinion, a person who
served as the full-time assistant director of the Department of Public Safety and
who in that capacity worked with agents in the field and in surveillance, made
arrests on search warrants and raids and carried a badge and a weapon satisfies the
requirements of R.C. 311.01. In my opinion, a person who directed the State
Highway Patrol, Emergency Management Agency, and the Ohio Investigative
Unit satisfies the requirements of R.C. 311.01. That the person also supervised
the human-resources office, defined the department’s goals, and formulated the
department’s policies is more an indication of competence than, as stated in the
majority opinion, a reason for automatic disqualification.
{¶ 44} I dissent.
O’NEILL, J., concurs in the foregoing opinion.
____________________
Baker, Dublikar, Beck, Wiley & Mathews, Gregory A. Beck, and James F.
Mathews, for relator.
Roetzel & Andress, L.P.A., Thomas L. Rosenberg, and Michael R.
Traven, for respondent.
________________________
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