State ex rel. Hemmons v. Cuyahoga Cty. Bd. of Elections

[Cite as State ex rel. Hemmons v. Cuyahoga Cty. Bd. of Elections, 2023-Ohio-1148.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, EX REL.,

WILLA HEMMONS, :

Relator, :

No. 112403

v. :

CUYAHOGA COUNTY BOARD

OF ELECTIONS, ET AL., :

Respondents. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED

DATED: April 4, 2023

Writ of Procedendo

Order No. 563279

Appearances:

Willa M. Hemmons, pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Mark R. Musson, Assistant Prosecuting

Attorney, for respondents.

EILEEN T. GALLAGHER, J.:

On February 14, 2023, the relator, Willa Hemmons, commenced this

writ action against the respondents the Cuyahoga County Board of Elections and its

board members, Jeff Hastings, Imajo Chappell, Terrence McCafferty, and Lisa

Stickan (“the Board”). The gravamen of this action is to compel the Board to

schedule a special recall election for three city of East Cleveland council members,

Korean Stevenson, Patricia Blochowiak, and Juanita Gowdy. The specific claims

stated in the complaint are for (1) declaratory judgment that the Board violated

Hemmons’s due process rights under the Ohio and United States Constitutions, (2)

a Title 42 United States Code § 1983 claim for deprivation of equal protection and

selective enforcement, and (3) a § 1983 claim for deprivation of substantive and

procedural due process. Hemmons claims that she is seeking a writ of procedendo

to have the Board schedule the recall election. She further seeks to have this court

declare that the recall petitions are valid and that the Board erred in denying the

signatures of over a thousand registered voters to have recall elections for the three

council members. In paragraph 41, she includes the sentence: “a writ of mandamus

is appropriate.”

This court set a briefing schedule ordering the parties to submit

evidence and briefs by March 3, 2023, and reply briefs by March 10, 2023. The

parties have complied with the order and have also filed notice of the outcome of

ancillary litigation. This court has reviewed the filings, the evidence, the briefs, and

the decision resolving the ancillary litigation, State ex rel. Richardson v. Gowdy,

Slip Opinion No. 2023-Ohio-976. This case is ripe for resolution.

Factual and Procedural Background

The city of East Cleveland is a charter municipality, and Charter

Sections 49 through 54 govern recall elections. The recall procedure is started by a

qualified elector of the city obtaining from the Clerk of Council blank recall petitions.

The elector must make and submit to the Clerk of Council an affidavit stating the

name of the council member whose removal is sought. Upon issuing the petitions,

the Clerk of Council shall record the name of the elector to whom the petitions were

issued and the date of issuance. In order for the recall election to be held, the

petition must be signed by East Cleveland electors who voted in the last regular

election of each municipal officer whose recall is sought, equal in number to at least

25 percent of the total number voting at the last regular election of each such

municipal officer in which his or her office was contested.

Upon obtaining sufficient signatures within 30 days, the elector must

file the petition with the Clerk of Council, who must then certify upon the petition

whether the signatures amount to at least 25 percent of the voters voting in the last

regular municipal election of officers. If sufficient valid signatures are obtained,

then the Clerk of Council must notify the subject council member and deliver to the

election authorities a copy of the original petition with the certificate that the

petition has at least 25 percent of the voters voting in the last municipal election, i.e.,

that it is a valid recall petition. If the subject council member does not resign within

five days of being presented with the recall petition, the Clerk of Council shall notify

the elections authorities of the fact, and the election authorities shall forthwith

schedule the recall election. Such election shall be held not less than 60 days nor

more than 90 days after the expiration of the five-day period.

Charter Section 111.03(a) provides that the President of Council shall

appoint and/or terminate the Clerk of Council, and Council may also elect such other

officers and employees of Council, as it deems necessary. Subsection (b) provides

that an assistant Clerk of Council may also be appointed in the same manner as

specified in subsection (a). Subsection (c) allows Council to appoint a Clerk Pro

Tempore or Deputy Clerk, in the absence of the Clerk upon such terms and

conditions as Council may determine.

On December 21, 2022, Clerk of Council Tracy Udrija-Peters issued

blank recall petitions to electors seeking to recall the three council members. On

January 3, 2023, the East Cleveland City Council elected Korean Stevenson as

Council president, and he terminated Udrija-Peters as Clerk of Council and the

Deputy Clerk of Council. This left the Council without a clerk. On January 4, 2023,

Council Member Nathaniel Martin solely on his own initiative named Law Director

Willa Hemmons as temporary Clerk of Council. This appointment was ineffective

because it was contrary to the Charter provisions.

On January 20, 2023, Hemmons accepted the recall petitions. She

reviewed the petitions for valid signatures and certified that the three petitions had

a sufficient number of valid signatures to hold a recall election. She so notified the

three subject council members pursuant to the requirements of the charter and

submitted the petitions to the Board of Elections along with her certification that

there were sufficient, valid signatures, so that the Board should schedule the recall

elections.

On February 13, 2023, the Board of Elections conducted a hearing on

whether it should schedule the recall elections. During the hearing, Hemmons

admitted that she was not the Clerk of Council. (Tr. 5.) Accordingly, the Board of

Elections did not schedule the recall elections, because the recall petitions were not

processed and presented as required by the East Cleveland Charter. Hemmons then

commenced this action.

Legal Analysis

This court first notes that the specific claims Hemmons avers to are not

appropriate. Her first claim is for a declaratory judgment that the Board of

Elections’ selective action is unconstitutional as applied as alleged in the complaint.

However, this court does not have jurisdiction to issue such declaratory judgments.

State ex rel. Hogan v. Ghee, 85 Ohio St.3d 150, 707 N.E.2d 494 (1999), and State

ex rel. Williams v. Trim, 145 Ohio St.3d 204, 2015-Ohio-3372, 48 N.E.2d 501.

Similarly, this court has original jurisdiction only over the five extraordinary writs.

It does not have jurisdiction to adjudicate § 1983 actions. State ex rel. Rodgers v.

Corrigan, 8th Dist. Cuyahoga No. 55503, 1988 Ohio App. LEXIS 4993 (Dec. 5,

1988).

The claim for procedendo is also problematic. The writ of procedendo

is merely an order from a court of superior jurisdiction to one of inferior jurisdiction

to proceed to judgment. Yee v. Erie Cty. Sheriff’s Dept., 51 Ohio St.3d 43, 553 N.E.2d

1354 (1990). Procedendo is appropriate when a court has either refused to render a

judgment or has unnecessarily delayed proceeding to judgment. State ex rel.

Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 696 N.E.2d 1079

(1998). However, the writ will not issue to control what the judgment should be, nor

will it issue for the purpose of controlling or interfering with ordinary court

procedure. Thus, procedendo will not lie to control the exercise of judicial

discretion. In the present matter, even assuming that the Board of Elections was

exercising judicial power at the February 13, 2023 hearing, it has already reached a

decision.

Viewing Hemmons’s complaint in a favorable light, she does plead

mandamus. The requisites for mandamus are well established (1) the relator must

have a clear legal right to the requested relief, (2) the respondent must have a clear

legal duty to perform the requested relief, and (3) there must be no adequate remedy

at law. State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978). A

relator must establish the elements for mandamus by clear and convincing evidence.

State ex rel. King v. Cuyahoga Cty. Bd. of Elections, Slip Opinion No. 2022-Ohio-

3613. Against a board of elections, the first two elements require a court to

determine whether the board engaged in fraud, corruption, or abuse of discretion or

acted in clear disregard of applicable law. Id. Mandamus is an extraordinary

remedy that is to be exercised with caution and only when the right is clear. It should

not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364

N.E.2d 1 (1977).

The East Cleveland Charter requires the Clerk of Council to certify the

sufficiency of the recall petitions and issue certificates of the petitions’ sufficiency to

the Board of Elections. The Clerk of Council did not perform those functions. Willa

Hemmons was not the Clerk of Council and could not perform them. The Board of

Elections did not abuse its discretion in declining to schedule the recall elections

because the required procedure was not fulfilled.

Hemmons invokes East Cleveland Charter Section 87, which provides

that all general laws of Ohio applicable to municipalities and not inconsistent with

the Charter shall apply to East Cleveland. Thus, she argues that when there is no

Clerk of Council, R.C. 7o5.92 becomes the default provision for recall elections in

East Cleveland and requires the Board of Elections to schedule those elections. The

Supreme Court of Ohio rejected this argument in State ex rel. Richardson v. Gowdy,

Slip Opinion No. 2023-Ohio-976.

Hemmons’s final argument is that Stevenson obstructed the electoral

process by firing the Clerk of Council and the Deputy Clerk of Council. She continues

that the three subject council members then further obstructed the electoral process

by failing to appoint a new Clerk of Council. Hemmons concludes that because the

recall petitions have a sufficient number of signatures, the Board is collaborating

with the obstruction and abuses its discretion by failing to schedule the recall

elections.

This argument was presented to the Ohio Supreme Court in

Richardson, that the circumstances of this case warrant bypassing the clerk’s duty

under the charter and permitting the Board of Elections to certify the sufficiency of

the petitions and to schedule the recall elections. The Supreme Court rejected this

argument by ruling that the Board did not have the duty to certify the petitions. The

Court also noted that a new Council President in March 2023, appointed a new Clerk

of Council and instructed the clerk to make the recall petitions the top priority. It

was not an abuse of discretion for the Board of Elections not to disregard the stated

law and proceed on what some may think was a just course of its own making.

Accordingly, this court denies the application for an extraordinary

writ. Relator to pay costs. This court directs the clerk of courts to serve all parties

notice of the judgment and its date of entry upon the journal as required by Civ.R.

58(B).

Writ denied.

_________________________

EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and

MARY EILEEN KILBANE, J., CONCUR