Appendix — Geisinger v. Board of County Commissioners

upreme Court, U

FILED

JAN 9 1978

K, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1977

No.2 7 ~989

BRUCE GEISINGER

Petitioner

v.

BOARD OF COUNTY COMMISSIONERS

OF MIAMI COUNTY, OHIO,

BOARD OF ELECTIONS

OF MIAMI COUNTY, OHIO,

DALE DAVIS, TREASURER

OF MIAMI COUNTY, OHIO,

JERRY L. BROWN, AUDITOR

OF MIAMI COUNTY, OHIO,

TED W. BROWN, SECRETARY

OF STATE OF OHIO, and

WILLIAM J. BROWN,

ATTORNEY GENERAL OF OHIO

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

JOHN E. FULKER

FAUST, HARRELSON, FULKER

& MCCARTHY

Atiorneys at Law

12 South Cherry Street

Troy, Ohio 45373 °*

Telephone — 513/335-8324

Counsel for Petitioner

January 1978

——_—_—_—

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216

=>

INDEX

Page

a a obey wees 2

duriediction ........... 2

Questions Presented 2

Constitutional Provisions Involved 2

Statement of the Case _. 4

Reasons for Granting the Writ —_—......... 5

I ey oe eda ded Ue oe eed ehakunes 10

Appendix A (Opinion of iia Court of Ohio) 11

Appendix B (Opinion of Court of Appeals of

Miami County, Ohio). ............ 21

Appendix C (Opinion of Common Pleas Court

of Miami County, Ohio) .......... 30

CASE CITATIONS

Goss v. Lopez (1975), 419 U.S. 565 _........ 6

Board of Regents of State a v. Roth — ‘

2 cree od Be eas ake ince 4.34 wk 0's 6

Perry v. Sindermann (1972), 408 U.S. 593 6

Slochower v. Board of — Education (1956),

350 U.S. 551 | Pek as (Mes is hehe Paseo 7

West Virginia Board of Education v. Barnette

(1943), 319 U.S. 624 fe Oe 8

Louisville Gas & Electric Co. v. Coleman (1927),

277 U.S. 32 | Ps Aa tered oe Ay ay eee 8

Moore v. Harris Gut Commissioners Court

(i006), See ©. SU BOSS .......... 52... i

i

IN THE

Supreme Court of the United States

October Term, 1977

BRUCE GEISINGER

Petitioner

Vv.

BOARD OF COUNTY COMMISSIONERS

OF MIAMI COUNTY, OHIO,

BOARD OF ELECTIONS

OF MIAMI COUNTY, OHIO,

DALE DAVIS, TREASURER

OF MIAMI COUNTY, OHIO,

JERRY L. BROWN, AUDITOR

OF MIAMI COUNTY, OHIO,

TED W. BROWN, SECRETARY

OF STATE OF OHIO, and

WILLIAM J. BROWN,

ATTORNEY GENERAL OF OHIO

e

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

The petitioner, BRUCE GEISINGER, prays that a

writ of certiorari issue to review the opinion and judg-

ment of the Supreme Court of Ohio rendered in these

proceedings on November 9, 1977.

2

OPINIONS BELOW

The opinion of the Supreme Court of Ohio, reported

at 52 Ohio St. 2d 51, appears at Appendix A, infra,

pp. 11-20. The opinion of the Court of Appeals of

Miami County, Ohio, is unreported, and appears at

Appendix B, infra, pp. 21-29. The opinion of the

Common Pleas Court of Miami County, Ohio, is unre-

ported, and appears at Appendix C, infra, pp. 30-36.

JURISDICTION

The judgment of the Supreme Court of Ohio was

entered on November 9, 1977. See Appendix A, p. 11,

infra. This petition for certiorari was filed less than

90 days from the date aforesaid. The jurisdiction of

this court is invoked under 28 U.S.C. § 1257 (3).

QUESTIONS PRESENTED

The General Assembly of Ohio enacted a statute

effectuating. certain changes in the Municipal Court

previously established in the City of Troy, abolishing

the office of the incumbent full-time judge of that court

during his term, and providing for the election of a suc-

cessor judge to serve the unexpired portion of his term.

The question thereby arising is:

Whether the judgment of the Supreme Court of

Ohio in affirming the lower court decisions and

thus permitting the legislative removal of the

titioner from his judicial office, without a hearing

of any kind, and in direct contravention of the

provisions of the Ohio Constitution, is consistent

with the Due Process and Equal Protection Clauses

of the Fourteenth Amendment.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment XIV,

$1:

3

“ .. nor shall any state deprive any person of

life, liberty, or property without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

Article IV, Section 15, Ohio Constitution:

“Laws may be passed to increase or diminish the

number of judges of the supreme court, to increase

beyond one or diminish to one the number of judges

of the court of common pleas in any county, and

to establish other courts, whenever two-thirds of

the members elected to each house shall concur

therein; but no such change, addition or diminu-

tion shall vacate the office of any judge; and any

existing court heretofore created by law shall con-

tinue in existence until otherwise provided.”

Article IV, Section 17, Ohio Constitution:

“Judges may be removed from office, by concur-

rent resolution of both houses of the general

assembly, if two-thirds of the members elected to

each house, concur therein; but, no such removal

shall be made, — upon complaint, the sub-

stance of which shall be entered on the journal,

nor, until the party charged shall have had notice

thereof, and an opportunity to be heard.”’

Article II, Section 38, Ohio Constitution:

“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 mis-

conduct involving moral turpitude or for other

cause provided by law; and this method of removal

shall in addition to impeachment or other

method of removal authorized by the constitu-

tion.”

Article IV, Section 6, Ohio Constitvtion:

“The judges of the supreme court, court of ap-

peals, court of common pleas, and visions thereof,

4

and of all courts of record established by law,

shall at stated times, receive for their services

such compensation as may be provided by law,

which shall not be diminished during their term

of office.”

STATEMENT OF FACTS

The facts relevant to the question presented by this

petition are uncontroverted and therefore may be in-

troduced to the Court in summary fashion.

The petitioner, Bruce Geisinger, is the duly elected,

qualified and acting Judge of the Municipal Court of

the City of Troy, Ohio, having been elected for a full

term of six years commencing January 1, 1974.

The General Assembly of Ohio thereafter enacted,

and on August 19, 1975, the Governor approved, Sub.

H. B. 205, which amends ¢ertain enumerated sections

of the Revised Code of Ohio relating to municipal

courts and judgeships, the abolition of police courts

and other related matters.

More specifically, the enactment provides, inter alia,

for the changing of the name and style of the Troy

Municipal Court to the “Miami County Municipal

Court”; for the expansion of the territorial jurisdic-

tion of that court to include all of Miami County; for

the election, in 1975, of two full-time judges for said

court (which has now been accomplished); and for

the abolition of the office of the existing full-time

municipal judge of that court, during his term and

effective upon the commencement of the terms of office

of the full-time municipal judges elected in 1975. It

should be noted that the term provided for the second

of such judges precisely coincides with the unexpired

term of the deposed petitioner.

The petitioner initially sought a writ of prohibition

5

in the Supreme Court of Ohio to prevent the election

of a new judge to complete the unexpired portion of

his term; that action was summarily dismissed.

Thereupon the petitioner brought an action in the

Common Pleas Court of Miami County, Ohio, seeking

a declaratory judgment that:

1. Those portions of Sub. H. B. 205 which abolish

his office and provide for the election of a suc-

cessor to serve out his unexpired term are un-

constitutional and void.

2. That he is entitled to continue in office as judge

of said court until the expiration of the term

for which he was elected.

The matter was tried to the court on stipulation of

facts and briefs of counsel. The trial court found the

issues against petitioner and entered judgment on

May 25, 1976. The Court of Appeals for Miami County

affirmed the decision of the trial court by opinion filed

September 28, 1976, and the Supreme Court of Ohio

affirmed by its Decision and Order filed November 9,

1977.

Although petitioner asserted the matters of due pro-

cess and equal protection in his initial complaint and

thereafter repeated and argued such claims in each of

the courts below, those courts have consistently failed

and refused to pass, or even comment, on those ques-

tions; implicit, however, in the decisions of the Ohio

Courts, is the substantive rejection of those constitu-

tional claims and a determination that petitioner is not

entitled to the protections vouchsafed by the Fourteenth

Amendment.

REASONS FOR GRANTING THE WRIT

1. The decision below directly conflicts with the due

process principles enunciated by this Court’s Goss

ruling.

6

In Goss v. Lopez (1975), 419 U.S. 565, 42 L.Ed. 2d

725, 95 S.Ct. 729, this Court held that a state employee,

who under state law has a legitimate claim of entitle-

ment to continued employment, absent sufficient cause

for discharge, may demand the procedural protections

of due process. That ruling crystallized and placed in

perspective the earlier pronouncements of this Court

in Board of Regents of State Colleges v. Roth (1972),

408 U.S. 564, 33 L.Ed. 2d 548, 92 S.Ct. 2701, and

Perry v. Sindermann (1972), 408 U.S. 593, 33 L.Ed.

2d 570, 92 S.Ct. 2694.

Examination of the circumstances under which the

petitioner Bruce Geisinger held his public office, or

employment, demonstrates them to be clearly within

the Goss fabric. Petitioner was elected to an office

created by an Ohio statute for a six-year term pre-

scribed by the same statute (Ohio Revised Code,

Chapter 19). He was assured by the provisions of

Article 1V, Section 15 of the Ohio Constitution that

his office would not be vacated by the vagaries of the

legislature, and he was further assured by the pro-

visions of Article IV, Section 17 and Article II, Section

38 of the Ohio Constitution that he would not be re-

moved from such office except for cause and upon com-

plaint and hearing. Still further in this vein, the peti-

tioner was assured by the provisions of Article IV, Sec-

tion 6, Ohio Constitution, that his compensation would

not be reduced during his term.

In view of these formidable assurances afforded him

by the statute and organic law of the State of Ohio, it

cannot be gainsaid that the petitioner has a protected

property interest in his employment. He clearly has

that legitimate claim of entitlement to continued em-

ployment absent sufficient cause for discharge which,

7

under the Goss principles, confers upon him the right

to demand the procedural protections of due process.

This petition presents a deprivation of that property

interest even more compelling that Goss, Roth, Sinder-

mann or Slochower (Slochower v. Board of Higher

Education (1956), 350 U.S. 551, 100 L.Ed. 692, 76

S.Ct. 637); we have here no charge of misconduct or

other sufficient cause. There has been no complaint,

no notice and no hearing of any kind; neither do we

have a removal accomplished in any other manner

allowed or provided by law. There exists here no

minimal trace of due process.

What this petition does present is a removal from

office by virtue of the legislative process; the rub,

however, is that the Ohio constitutional strictures and

interdictions, upon which the petitioner was entitled

to rely, have been wholly ignored. The Ohio General

Assembly has, arbitrarily, capriciously and totally

without cause, abolished the office of the incumbent

petitioner, and has then compounded its perfidy by

mandating’ an election to choose a successor to complete

the unexpired portion of his term. It is a fundamental

principle of the law that an act forbidden by direction

cannot be accomplished by indirection. For the Gen-

eral Assembly of Ohio to remove and replace the peti-

tioner in such a manner, without complaint and hear-

ing and in blatant disregard of his constitutional pro-

tections, constitutes a clear deprivation of petitioner’s

property interest and is constitutionally untenable.

If the legislative removal of the petitioner had oc-

curred as an unfortunate, but necessary incident of a

remedial enactment, the case for H. B. 205 might be

stronger; but such is not the case. The offending pro-

vision of that enactment is the more nefarious in that

8

no legitimate legislative purpose is served by the re-

moval and replacement of the petitioner.

That the deprivation of petitioner’s property interest

in his employment occurred at the hands of the Ohio

General Assembly and the Ohio Supreme Court is not

a defense; both are organs of that state, and it is to the

states that the interdictions of the Fourteenth Amend-

ment are directed:

“The Fourteenth Amendment, as now applied to

the States, protects the citizen against the State

itself and all of its creatures. . .”

Goss v. Lopez, supra.

West Virginia Board of Education v. Barnette

bed 319 U.S. 624, 87 L.Ed. 1628, 63 S.Ct.

1

2. The decision below cannot be reconciled with the

equal protection principles enunciated by this

Court’s ruling in Louisville Gas & Electric Co. v.

Coleman (1927).

In Louisville Gas & Electric Co. v. Coleman (1927),

277 U.S. 32, 72 L.Ed. 770, 48 S.Ct. 423, this Court

set forth, in summary form, the established rules for

testing a claimed discrimination, and added thereto

the caution that “Discriminations of an unusual char-

acter especially suggest careful consideration to deter-

mine whether they are obnoxious to the constitutional

provision.”

That final caution invites careful consideration of.

H. B. 205. While the number of full-time municipal

courts existing within the State of Ohio is legion, that

enactment abolished the office ot only one, that of the

petitioner. That faci, coupled with the considerations

that the removal of the petitioner from his office bore

no relationship with the avowed purpose of the act

and served no other legitimate legislative purpose,

a

9

strongly suggests the enactment to be constitutionally

discriminatory.

While it may be conceded that the legislature may

make laws which are applicable on a differential basis,

it is clear that such differentiation must bear a reason-

able relationship to the purpose to be accomplished.

The denial to the petitioner of the equal protection of

the laws consists of the unnecessary and capricious dis-

crimination between him and the myriad other full-

time municipal judges of Ohio whose tenures were un-

affected by H. B. 205 or by any other contemporary

enactment. This particular discrimination is, in fact,

antithetical to the objects of the act; having provided

for the removal of the petitioner, the General Assembly

then had to provide for the election of a substitute. For

that reason, the petitioner, who thereby became the

single member of a closed class, has been excluded from

the protection of the law.

Viewed from the standpoint that the Ohio General

Assembly, in effecting the legislative removal of the

petitioner in contravention of state constitutional stric-

tures, the classification is invidious in the ultimate

degree.

The reasoning of the District Court for the Southern

District of Texas in Moore v. Harris County Commis-

sioners Court (1974), 378 F. Supp. 1006 (reversed on

other grounds at 420 U.S. 77, 43 L.Ed. 2d 32, 95 S.Ct.

870) is pertinent and persuasive:

Insofar as Art. 235114 operates to truncate the

term of a duly elected public official upon the

circumstance that a mere convenience redistrict-

ing places him in a district with others, it invidi-

ously and irrationally discriminates between him

and others not so affected and between the effect

of the votes of those who voted or were entitled to

10

vote in his election and voters whose franchise

was not so bobbed. No compelling interest was here

served by such discrimination. Certainly it was

not necessary to effect redistricting in mid-term,

or, if that were thought pressing, it was not com-

— that the office be declared vacant as a

result.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the Supreme

Court of Ohio.

Respectfully submitted,

JOHN E. FULKER

FAUST, HARRELSON, FULKER

& MCCARTHY

Attorneys at Law

12 South Cherry Street

Troy, Ohio 45373

Counsel for Petitioner

11

APPENDIX A

OPINION OF SUPREME COURT

OF OHIO

GEISINGER, APPELLANT, V.

COOK ET AL., APPELLEES.

[Cite as Geisinger v. Cook (1977), 52 Ohio St. 2d 51.]

General Assembly — Abolition of statutory courts —

Power to abolish office of municipal judge—Consti-

tutionality.

Section 15 of Article IV of the Constitution of Ohio

does not limit the power of the General Assembly

to abolish municipal courts.

(No. 76-1276—Decided November 9, 1977.)

Appeal from the Court of Appeals for Miami County.

Bruce Geisinger, appellant herein, was the duly

elected, qualified, and acting judge of the Troy Munici-

pal Court, having been elected for a full term of six

years commencing January 1, 1974. The following

year, the General Assembly enacted Am. Sub. H. B.

No. 205, and certain sections of the Revised Code re-

lating to municipal courts were amended. A court to

be known as the Miami County Municipal Court was

created. Its territorial jurisdiction included the mu-

nicipality of Troy. On November 4, 1975, the Miami

County Board of Elections, appellee herein, caused the

election of two judges to the new court, as provided

in Am. Sub. H. B. No. 205.

On August 21, 1975, appellant filed a complaint in

this court (case No. 75-771) for a writ of prohibition

against the Board of Elections, Attorney General Wil-

liam J. Brown, and Secretary of State Ted W. Brown,

appellees herein, in which action appellant prayed for

12

a writ restraining the respondents from causing the

election of the two full-time judges, and from divest-

ing appellant of his office. This court dismissed ap-

pellant’s complaint.

Appellant then brought an action in the Court of

Common Pleas of Miami County, seeking, inter alia,

a declaratory judgment that those portions of Am. Sub.

H. B. No. 205, which effected the abolition of his office

and provided for the election of new judges, were un-

constitutional and void, and that appellant was en-

titled to continue in office as judge of the Troy Mu-

nicipal Court until the expiration of the term to which

he had been elected.

On May 25, 1976, the Court of Common Pleas denied

appellant’s claims. Upon appeal to the Court of Ap-

peals, the judgment of the trial court was affirmed.

The cause is now before this court pursuant to the

allowance of a motion to certify the record.

Messrs. Faust, Harrelson, Fulker & McCarthy and

Mr. John E. Fulker, for appellant.

Mr. L. Craig Hallows, prosecuting attorney, for ap-

pellee Miami County Board of Elections.

Mr. William J. Brown, attorney general, and Mr.

Thomas V. Martin, for appellees Ted W. Brown and

William J. Brown

HERBERT, J. Appellant submits as his primary prop-

osition of law that although the Constitution of Ohio

empowers the General Assembly “to establish other

courts” than constitutional courts, such power may not

be exercised in a manner causing the vacation of the

office of any judge.

Section 15 of Article IV of the Constitution of Ohio

provides :

“Laws may be passed to increase or diminish the

13

number of judges of the supreme court, to increase

beyond one or diminish to one the number of judges

of the court of common pleas in any county, and to

establish other courts, whenever two-thirds of the mem-

bers elected to each house shall concur therein; but no

such change, addition, or diminution shall vacate the

office of any judge; and any existing court hereto-

fore created by law shall continue in existence until

otherwise provided.”

The foregoing has been the language of Section 15

since its amendment in 1912. Section 15 of Article IV

originally provided:

“The general assembly may increase, or diminish,

the number of the judges of the supreme court, the

number of the districts of the court of common pleas,

the number of judges in any district, change the dis-

tricts, or the subdivisions thereof, or establish other

courts, whenever two-thirds of the members elected to

each house shall concur therein; but no such change,

addition, or diminution, shall vacate the office of any

judge.” This earlier wording of Section 15 was inter-

preted by this court in State, ex rel. Flinn, v. Wright

(1857), 7 Ohio St. 333.

In Flinn, the relator had been duly elected and com-

missioned as a judge of the Criminal Court of Hamilton

County, which court had been created by an act of the

General Assembly. During relator’s term of office, the

General Assembly repealed the act creating his court

of criminal jurisdiction, transferring its business to

the Court of Common Pleas of Hamilton County.

The relator claimed that the repealing act, insofar

as it attempted to abolish his office prior to the expira-

tion of the period for which he had been elected and

commissioned, was contrary to the Ohio Constitution

14

and hence inoperative, and that his office continued to

exist notwithstanding the repealing act. The sole con-

stitutional provision relied upon by the relator in this

regard was Section 15 of Article IV, as it read in 1857.

In Flinn, this court declared that the saving clause

at the end of Section 15, which applied to courts and

judgeships established by the Constitution, did not

apply to municipal courts and municipal judgeships

created by the General Assembly:

“The relator * * * contends that the saving clause at

the end of this section applies as well to courts and

judges established and created by legislative authority,

as to those which subsist independently of that auth-

ority. But we do not think so. ‘But no such change,

addition, or diminution, shall vacate the office of any

judge.’ The word ‘such,’ in connection with the words

‘change, addition, or diminution,’ directly refers us to

certain changes, additions, and diminutions before

mentioned and provided for. What are they? Clearly

‘the number of the judges of the Supreme Court,-the

number of the districts of the court of common pleas,

the number of judges of any district,’ the districts

themselves, ‘or the subdivisions thereof.’ The changes,

additions, and diminutions mentioned in the preceding

part of the section, evidently have no reference what-

ever to the ‘other courts’ which the general assembly

may ‘establish,’ ‘whenever two-thirds of the members

elected to each house shall concur therein.’” Flinn,

supra, at pages 335-36.

The effect of this court’s conclusion was that Section

15 forbade the General Assembly to directly or in-

directly vacate the office of a judge of a court estab-

lished by the Constitution, but did not restrict the

power of that branch of government to abolish mu-

nicipal courts. The framers of the Ohio Constitution

15

intended to leave the power to abolish as full and un-

restricted as was the power to create.

The probable motive underlying the 1912 amendment

of Article IV was to guarantee to each county at least

one common pleas court judge.’ This was the focus of

the spirited April 24, 1912, Constitutional Convention

discussion of Proposal No. 304, which encompassed the

amendment of Section 15 of Article IV to read as it

does today. 2 Proceedings and Debates of the Consti-

tutional Convention of the State of Ohio (1912), at

pages 1397-1403.

Since 1912, Section 15 has directed that “no such

change, addition, or diminution shall vacate the office

of any judge.” The word “such,” relative to the phrase

“change, addition, or diminution,” guides us to changes,

additions, or diminutions theretofore mentioned. This

reference is to the number of the judges of the

‘Note this partial response of Mr. Halfhill to a question

offered in the course of debate by Mr. Mauck:

“We started out with the assumption that we could not

get along without a common pleas court in each and every

county. I think that is evident. That is to say, we must hold

a court in each county to settle personal disputes and differ-

ences and define and protect property rights, because that is a

part of our civilization. We must maintain a court in each and

every county, but in holding that court we are at the same

time at a disadvantage, because we do not have a judge in

each and every county; so we thought we could make the

central proposal with two objects in view or possibly more.

“2. We would wipe out these awkward judicial districts,

which ought never to have been in the constitution, by saying

the county shall be the unit, the judge shall be elected within

the county, the judge shall reside within the county and each

county shall have a judge. So we have accomplished that

much.” 2 Proceedings and Debates of the Constitutional Con-

vention of the State of Ohio (1912), at page 1399.

16

Supreme Court and the number of the judges of the

common pleas courts in any county. The changes, addi-

tions, and diminutions do not relate to “other courts”

which the General Assembly may see fit to establish.

We believe that the basic reasoning of Flinn, relative

to Section 15, remains tenable.’ Section 15 of Article

IV of the Constitution of Ohio does not limit the power

of the General Assembly to abolish municipal courts.

Appellant submits further that although Am. Sub.

H. B. No. 205 provided for a change in the name and

style of the Troy Municipal Court, for the expansion

of the territorial jurisdiction formerly enjoyed by said

court, and for the election of two new full-time judges,

it did not abolish the Troy Municipal Court. He points

out that R. C. 1901.01* establishes a municipal court in

various municipalities, among them the municipal

corporation of Troy, and that the amended statutory

provision, retaining Troy, omits Piqua, which also is

located in Miami County, from the list of enumerated

municipal corporations.

* Consistent with our holding in the instant cause is State, ex

rel. Gustafson, v. Krause (1936), 131 Ohio St. 97, 1 N. E. 2d

937, upon which appellant heavily relies. The Gustafson relator

had instituted an action in the appellate court to obtain a per-

emptory writ of mandamus to compel the respondent board

of elections to place his name on the ballot in a primary elec-

tion; the relator desired to become a candidate for the Court

of Common Pleas. Gustafson, which did not mention Flinn,

supra (7 Ohio St. 333), therefore entailed a judgeship in a

Court of Common Pleas, a court established by the Consti-

tution.

* R. C. 1901.01 provides, in relevant part:

“There is hereby established a municipal court in each of the

following municipal corporations:

“Akron, * * * Troy, * * * Youngstown, and Zanesville.”

17

Section 10 of Am. Sub. H. B. No. 205 provides:

“The offices of the existing full-time municipal judge

of the Troy municipal court, and the existing part-time

Fremont municipal court are abolished by this act,

effective upon the commencement of the term of office

of the full-time municipal judges who are elected re-

spectively to the Miami County and Fremont munici-

pal courts.”

Section 11 of Am. Sub. H. B. No. 205 provides in

relevant part:

“All causes, judgments, executions, and other pro-

ceedings pending in the municipal courts of Piqua and

Troy at the close of business December 31, 1975, shall

be transferred to and proceed in the Miami County

municipal court as if originally instituted there.”

There does remain a municipal court in Troy, as

appellant asserts. However, it is not the Troy Munici-

pal Court, but the Miami County Municipal Court.

Through its enactment of Am. Sub. H. B. No. 205, the

General Assembly abolished the Troy Municipal Court

and created the Miami County Municipal Court, which

shall sit in Troy and have county-wide jurisdiction.

See, also, R. C. 1901.121.

Appellant avers that the General Assembly may not

remove a judge from office except as provided in Sec-

tion 17 of Article IV of the Constitution of Ohio.* He

4Section 17 of Article IV of the Constitution of Ohio pro-

vides:

“Judges may be removed from office, by concurrent resolu-

tion of both Houses of the General Assembly, if two-thirds

of the members, elected to each House, concur therein; but, no

such removal shall be made, except upon complaint, the sub-

stance of which shall be entered on the journal, nor, until the

party charged shall have had notice thereof, and an oppor-

tunity to be heard.”

18

states that he has been removed from his judicial of-

fice by a legislative act of the General Assembly, and

submits that a legislative enactment effecting such

a removal in a fashion other than that provided in

Article IV is unconstitutional and void.

It is our conclusion that the constitutional provisions

for removal of a judge from office have no application

under the instant facts. If the court is properly abol-

ished by the General Assembly, the term of one hold-

ing the office of judge of that court is terminated. This

court has cited Flinn in noting that “there can be no

incumbent without an office.” State, ex rel. Attorney

General, v. Jennings (1898), 57 Ohio St. 415, 423, 49

N. E. 404.

Appellant contends further that during the term for

which he was elected, he was legislatively removed

from his judgeship in violation of Section 6 of Article

IV of the Constitution of Ohio,’ relating to judicial

salaries. We agree that as long as a court remains in

existence, the salary of a judge thereof cannot be re-

duced during his term of office. However, the court

upon which appellant served no longer exists; it was

properly abolished by the General Assembly.

The judgment of the Court of Appeals must be

affirmed.

Judgment affirmed.

O’NEILL, C. J., CELEBREZZE, P. BRowN and

SWEENEY, JJ., concur.

W. Brown, J., concurs in the syllabus and judg-

ment.

LOCHER, J., dissents.

®* Section 6(B) of Article IV of the Constitution of Ohio

provides, in pertinent part:

19

WILLIAM B. Brown, J., concurring. I concur in the

syllabus and in the judgment of Justice Herbert con-

cerning the power of the General Assembly.

However, I feel strongly that Judge Geisinger

should be paid his salary for the balance of his term.

If it is not a legal obligation, it is certainly a moral

obligation of the General Assembly to make sure that

he is reimbursed for the balance of his elected term.

LOCHER, J., dissenting. Section 15 of Article IV of

the Ohio Constitution can only be read as prohibiting

the vacation of the office of any judge during his term.

Thus, I am unable to assent to the majority’s bestowal

of unbridled power upon the General Assembly to abol-

ish courts and judgeships during the term of the in-

cumbent. Nor, do I find the basic reasoning of State,

ex rel. Flinn, v. Wright (1857), 7 Ohio St. 333, rela-

tive to Section 15 either applicable or tenable. The

Court of Appeals, in the instant cause, made the fol-

lowing cogent comment concerning State, ex rel. Flinn,

v. Wright, supra, at page six of its opinion:

“The rationale of the Flinn case has not been re-

versed, even though its logic is questionable and its

conclusion open to expressed doubts. Rhetorically, the

application of the words, ‘no such change, addition or

dimunition,’ to some but not all of the preceding con-

ditions appears to be one of personal choice not sup-

ported by either the rules of grammar or by the pur-

pose of the entire section.”

Justification for the continuation of the limited ap-

“The judges of the Supreme Court, courts of appeals, courts

of common pleas, and divisions thereof, and of all courts of

record established by law, shall, at stated times, receive for

their services such compensation as may be provided by law,

which shall not be diminished during their term of office.”

20

plication espoused in State, ex rel. Flinn, v. Wright,

supra, is further strained because the “preceding con-

ditions” are now joined in the conjunctive, instead of

the disjunctive that existed in State, ex rel. Flinn, v.

Wright, supra.

This strained interpretation not only rebukes the

plain intent of the section predicated upon a common-

senical heritage of judicial independence, but fails to

heed the sound admonition:

“Judges must beware of hard constructions and

strained inferences; for there is no worse torture than

the torture of laws.” Bacon, Essays of Judicature 12.

The results are indeed torturous. The General As-

sembly no longer is restricted in the removal of cer-

tain of this state’s judges to the prescribed manner of

Section 17 of Article IV of the Ohio Constitution. A

convenient circumvention, vitiating the necessity of a

complaint, hearing and two-thirds vote of the members

of each house, is provided for the General Assembly to

partially disenfranchise the voters by the removal of a

duly elected member of the judiciary.

The judiciary is commonly characterized as the least

equal of the three equal branches of government, pos-

sessing neither the purse nor the sword. Historically,

the judicial branch has been protected from the possi-

bility of importuning by the other branches of govern-

ment. The majority’s decision needlessly weakens one

vital safeguard. I can find neither an express consti-

tutional mandate for this action abhorrent to the basic

fabric of government nor any utilitarian necessity.

There are numerous means of effecting judicial re-

organization to meet the demands of population and

efficiency not necessitating the removal of a judge dur-

ing his elected term, the disenfranchisement of elec-

tors, and latent legislative subjection of the judiciary.

Accordingly, I respectfully dissent.

21

APPENDIX B

OPINION OF COURT OF APPEALS

OF MIAMI COUNTY, OHIO

22

IN THE COURT OF APPEALS

OF MIAMI COUNTY, OHIO

BRUCE GEISINGER

Plaintiff-A ppellant

vs.

KENNETH COOK, et al.

Defendants-A ppellees

Case No. 76 CA 25

OPINION

Rendered on the 28th day of September, 1976.

FAUST, HARRELSON, FULKER & McCARTHY,

By: JOHN E. FULKER, Of Counsel, 12 South

Cherry Street, Troy, Ohio 45373

Attorney for Plaintiff-Appellant

THOMAS V. MARTIN, Assistant Attorney General,

State Office Tower, 30 East Broad Street, 17th Floor,

Columbus, Ohio 43215

and

FRANK §S. VIRZI, Assistant Prosecuting Attorney,

Safety Building, Troy, Ohio 45373

Attorneys for Defendants-Appellees

McBRIDE, J.

This appeal is from a declaratory judgment of the

Court of Common Pleas of Miami County which af-

firmed as constitutional those provisions of Amended

Substitute House Bill 205, enacted in 1975, which abol-

ished the office of the incumbent judge of the Troy

Municipal Court during his term.

23

The incumbent judge initially scught a writ of pro-

hibition in the Supreme Court of Ohio to prevent the

election of judges to the new county wide court of

Miami County. This relief was summarily denied. The

two judges were subsequently elected, one for a period

of time similar to the unexpired term of the incumbent

judge of the Troy Municipal Court. We agree with the

opinion of the trial judge tha: the denial of the action

for prohibition against the Board of Elections is not

res judicata in the present action for a declaratory

judgment. The doctrine of estoppel, applied in State

ex rel. Hofstetter vs. Kronk, 20 Ohio State 2d 117, can

have no application to the issues in ine instant case.

Amended Substitute House Bill 205 is a typical

omnibus enactment on the subject of all municipal

courts in Ohio and is of considerable length. Revised

Code 1901.01 deleted the Piqua Municipal Court but

retained the establishment of the Troy Municipal

Court. Revised Code 1901.02 provides that the munici-

pal courts established by Revised Code 1901.01 (in-

cluding that at Troy) shall have jurisdiction within

the corporate limits of the city and also have jurisdic-

tion as follows:

The Miami County Municipal Court has jurisdic- -

tion within Miami County. The first paragraph

recites that the court established in Troy shall

styled and known as the “Miami County Munici-

pal Court.”

At this point it appears that the bill creates a Troy

Municipal Court with jurisdiction in that municipality

and it grants county wide jurisdiction to a court which

it failed to create in Revised Code 1901.01; that is, the

Miami County Municipal Court, which is the name by

which the Troy Municipal Court is to be known.

24

Revised Code 1901.08 deletes the provision for elec-

tion of one full time judge for the Troy Municipal

Court and provides for the election of two full time

judges for the Miami County Municipal Court in 1975,

one of whom shall serve only until December 31, 1979,

at which time another will be elected.

Revised Code 1901.36 provides, among other things,

for suitable accommodations for the Miami County

Municipal Court. The Miami County Municipal Court

is mentioned in Revised Code 1905.01 which provides

for a mayor’s court whenever the court is not required

to set as provided in Revised Code 1901.021. Revised

Code 1901.021 requires the judges of the Miami County

Municipal Court to sit within the municipal corpora-

tions of Troy, Piqua and Tipp City and provides that

they may sit in other incorporated areas of Miami

County.

Revised Code 5503.04 was amended to require the

payment by the Miami County Municipal Court of cer-

tain fines to the county rather than the municipal

corporation.

Sections 2 through 15 of Amended Substitute House

Bill 2U5 contain a series of transitional provisions. The

Bill has an effective date of January 1, 1976. Under

Section 5 the salary of any chief justice incumbent on

the effective date shall not be reduced during his term

of office. Similar consideration was not extended to the

incumbent judge during his term at Troy.

Section 10 is specifically related to the court at Troy.

It provides that the office of the existing full-time mu-

nicipal judge of the Troy Municipal Court be abolished

by this act, effective upon the commencement of the

term of office of the full time municipal judges who

are elected to the Miami County court. Such judges

were elected and took office on January 1, 1976, at

25

which time, according to Section 10, the office of the

incumbent was abolished during his term. Revised

Code 1901.07.

~ 7 = = *

Article IV, Section 15 of the Constitution of Ohio

provides:

Laws may be passed to increase or diminish the

number of judges of the supreme court, to in-

crease beyond one or diminish to one the number

of judges of the court of common pleas in any

county, and to establish other courts, ...; but no

such change, addition or diminution shall vacate

the office of any judge;...

Prior to 1912 this section referred to districts of the

court of common pleas and the statement as to other

courts read “‘or establish other courts.”’ The three alter-

natives expressed are now in the conjunctive.

In 1857 the question of the power of the legislature

to abolish a judicial office during the term of an in-

cumbent came before the court in State ex rel. Flinn

vs. Auditor of State, 7 Ohio State 333. In 1852 the

legislature created a criminal court of Hamilton county

to which relator was elected. Two years later this

court was abolished and its business transferred to

the Court of Common Pleas. The relator sought his

salary for the balance of his term. The Supreme Court

held that the language, “but no such change, addition,

or diminution, shall vacate the office of any judge,”

applied to the references to the Supreme Court and

the Court of Common Pleas and that such language

had no reference whatever to “other courts” which the

legislature may establish. The opinion distinguishes

between constitutional judges and statutory judges.

Only one judge of the Court of Common Pleas may be

recognized as a constitutional judge. Who that one

26

judge may be today in a given multiple judge county

after repeated changes in election laws is a matter of

considerable conjective. In any event this decision of

the Supreme Court in 1857 held that there is no limit

upon the power of the legislature to abolish courts and

judgeships it creates and that the legislature is not

denied the power to do so during the term of an in-

cumbent. The power to abolish, said the court, is as

unlimited as the power to create either other courts or

additional judgeships on constitution courts.

The rationale of the Flinn case has not been reversed

even though its logic is questionable and its conclusion

open to expressed doubts. Rhetorically, the applica-

tion of the words, “no such change, addition or dimuni-

tion,’’ to some but not ail of the preceding conditions

appears to be one of personal choice not supported by

either the rules of grammar or by the purpose of the

entire section. The Flinn case limits this protective

clause to the then existing number of supreme court

judges and to one common pleas judge in any county.

While it is the writer’s opinion that this construction

of the independent clause in the sentence represents an

indiscriminate selection of equal alternatives, now set

forth in the conjunctive, and represents an unjustified

limitation upon otherwise broad constitutional lan-

guage, the Flinn case is the law of this State and it

has not been reversed.

The subject of abolition of judgeships appears again

in State ex rel. Gustafson vs. Krause, 5 OO 436 (1936),

affirmed in 131 Ohio State 97, 5 OO 442. This case

involved the Court of Common Pleas and the issues

arose when the legislature converted the election of the

judges in Cuyahoga County from a group race in which

all participated to single and separate races for each

office to be filled. Thus all but one office to be filled

27

were of a statutory and not constitutional origin. The

appellate court said that the legislature had the power

to diminish and abolish the continuity of office, pro-

vided such abolishment did not vacate the office of an

incumbent judge. (p. 439). No mention is made of the

Flinn case. On appeal Chief Justice Weygandt wrote

the opinion and on the subject of interrupted terms he

had this to say:

It is urged further that the Constitution permits

no legislative interference with the length of term.

This is of course true; and under each theory

each incumbent will be allowed to serve the entire

a for which he was elected. p. 101. (Italics

ours

While it may be argued that Gustafson reversed Flinn

there was no interruption of any existing term in that

case. The voluntary comments of the appellate court

and of the Chief Justice reflect the opinion of the

authors, but do not change the case law of Ohio.

Certainly there can be no incumbent without an

office, but this general statement, however true, begs

the question under Article IV, Section 15, whether the

legislature may at will vacate the office of any statu-

tory judge by creating another one, in this case, identi-

cal in length to the unexpired term of the incumbent.

If this be so, there is no limit to legislative control over

a majority of the members of the judiciary in the State

by the use of any subterfuge that avoids removal by

impeachment under Article IV, Section 17.

It is worthy of note that Article IV, Section 23,

which provides for consolidation of courts in less popu-

lous counties by public vote provides that such consoli-

dation “‘shall not affect the right of any judge then in

office from continuing in office until the end of the term

for which he was elected.”’ In this ._:tion the power to

28

remove a judge without cause during his term is not

reserved to the people. Section 23 has no application to

the instant case; however, it represents the same pol-

icy expressed in Article IV, Section 15. Similarly,

Article IV, Section 6, prohibiting reduction in salary

during the term has no application here.

Despite the round about method by which the Miami

County Municipal Court was created, the legislative

intent to abolish the office of the existing judge of the

Troy Municipal Court is expressly stated in Section 10

of Amended Substitute House Bill 205.

While I personally agree that Article IV, Section 15,

is “clear, concise and positive” in prohibiting the vaca-

tion of the office of any judge during his term as indi-

cated in the unreported cases of Niehaus, Conners and

Utz vs. Morr, No. 235748, 236430 and 236441 in the

Court of Common Pleas of Hamilton County and as

suggested in State ex rel. Gibson vs. Friedley, 34 NE

872 (Ind.), the Supreme Court of Ohio has not modi-

fied its position taken in 1857 in State ex rel. Flinn vs.

Auditor, 7 Ohio State 333 (334) that the legislature

has unbridled power to abolish a statutory judicial

office during the term of an incumbent elected judge.

Any change in that constitutional interpretation must

be made by the Supreme Court of Ohio.

The judgment of the trial court will be affirmed.

KERNS, P.J., and SHERER, J., concur.

29

APPENDIX C

OPINION OF COMMON PLEAS COURT

OF MIAMI COUNTY, OHIO

30

IN THE COURT OF COMMON PLEAS

MIAMI COUNTY, OHIO

GENERAL DIVISION

BRUCE GEISINGER,

Plaintiff,

Vs.

KENNETH COOK, ET AL,

Defendants.

Case No. 75-319

Findings of Fact, Conclusions of Law,

Memorandum of Decision and

Journal Entry of Judgment

Plaintiff in this case filed a complaint for declara-

tory judgment and injunction. The Defendants filed

answers, and the pleadings were completed. By stipu-

lation the matter was submitted to the Court for deter-

mination on the merits, and Counsel for each side filed

briefs.

The matter was taken under advisement by the

Court.

Upon consideration of all matters in tne case, the

Court makes the following determinations.

l.

FINDINGS OF FACT

Defendants Kenneth Cook, Robert Clawson and

John Knoop are all the members of the Board of

County Commissioners of Miami County, Ohio.

Defendant Dale Davis is the Treasurer of Miami

County, Ohio, and Defendant Jerry L. Brown is

the Auditor of Miami County, Ohio.

ee awe

31

. Defendants Donald Bercaw, Cletus Berning, Dur-

ward Winfield and George R. Mote are all mem-

bers of the Board of Elections of Miami County,

Ohio.

. Defendant Ted W. Brown is the Secretary of

State of Ohio, and, in such capacity, is the chief

election officer of the State of Ohio.

. Defendant William J. Brown is the Attorney

General of Ohio, and, in such capacity, is the chief

law officer of the State of Ohio, and is made a

party Defendant herein pursuant to the provi-

sions of Section 2721.12 of the Revised Code of

Ohio.

. Plaintiff Bruce Geisinger was the duly elected,

qualified and acting as Judge of the Troy Munici-

pal Court, having been elected for a full term of

six years commencing January 1, 1974.

. The 11th General Assembly has enacted, and, on

August 19, 1975, the Governor of the State of

Ohio approved, a certain Bill designated Sub.

H. B. No. 205. Said legislative enactment amends

certain enumerated sections of the Revised Code

of Ohio relative to judicial salaries, the creation

of new municipal courts and judgeships, the aboli-

tion of the office of chief justice of a municipal

court, conforming the Revised Code to the Rules

of Civil Procedure, the abolition of police courts,

the elimination of obsolete languave, and declares

an emergency.

. On November 4, 1975, Defendant Board of Elec-

tions caused the election of two judges for the

Miami County Municipal Court in accordance

with said legislative enactment.

9. On September 2, 1975, Plaintiff Bruce Geisinger

10.

11.

12.

13.

14.

15.

16.

17.

32

filed in the Supreme Court of Ohio a complaint

for a writ of prohibition against the Board of

Elections of Miami County, Ohio, William J.

Brown, Attorney General of the State of Ohio,

and Ted W. Brown, Secretary of State of the

State of Ohio, said case being numbered 75-771.

In that cause the plaintiff as Relator, prayed for

a writ of prohibition restraining Defendant-

Respondents from causing the election of two full-

time judges to said Municipal Court and from

divesting Plaintiff-Relator from his office as judge

of the Troy Municipal Court.

Said cause was dismissed by the Supreme Court,

sua sponte, and without opinion on September 26,

1975.

The denial of the writ of prohibition by the Ohio

Supreme Court is not a res judicata finding as

concerns the present case, because it was not a

determination on the merits.

Municipal Courts are “statutory courts’ as op-

posed to “constitutional courts.”

County courts are “statutory courts” as opposed

to “constitutional courts.”

Municipal court judges and county court judges

are holders of “statutory offices.”

Former Section 1901.01 of the Ohio Revised Code

established a municipal court in Piqua, and a

municipal court in Troy.

The present Section 1901.01 deleted the Piqua

Municipal Court and retained the language about

the Troy Municipal Court.

Individual county courts are not named specif-

ically in Section 1907.011 of the Revised Code,

but it is stated that there is a county court in

18.

19.

20.

21.

22.

23.

33

each county where the municipal court does not

have jurisdiction over the entire county.

Former Section 1901.02 said that municipal court

jurisdiction was to be in the municipal corpora-

tion plus in the case of the Troy Municipal Court,

certain listed townships would be involved, and

in the case of Piqua Municipal Court, certain

other listed townships would be involved.

The present Section 1901.02 provides in pertinent

part: “The municipal courts, established by Sec-

tion 1901.01 of the Revised Code, have jurisdic-

tion within the corporate limits of their respec-

tive municipal corporations and are courts of

record. Each of such courts shall be styled “

municipal court,” inserting the name of the mu-

nicipal corporation, except . . . and the municipal

court established in Troy, which shall be styled

and known as the “Miami County Municipal

Court. . .”

“The Miami County Municipal Court has juris-

diction within Miami County. . .”

County court cases were transferred by Section

1901.04 to new municipal court.

Section 1901.05 was enacted as a general provi-

sion which designated that each municipal court

shall have one judge per 100,000 population.

Former Section 1901.08 provided that the Piqua

Municipal Court would have one full time judge

elected in 1953, and the Troy Municipal Court

would have one full time judge elected in 1955.

The last paragraph of Former Section 1901.08 of

the Ohio Revised Code reads: “Changes in this

section shall not affect the existence or term of

the office of a judge elected pursuant to Section

24.

to

vr

26.

34

1901.05 of the Revised Code, whether or not such

judgeship is reflected in this section.”

Present Section 1901.08 prSvides that the Miami

County Municipal Court shall have one full time

judge elected in 1975, and another full time judge

elected in 1975 and serving until December 31,

1979, at which time another full time judge will

be elected.

. The last paragraph of present Section 1901.08

reads: “Changes in this section shall not affect

the existence or term of the office of a judge

elected pursuant to Section 1901.05 of the Re-

vised Code, solely because such judgeship is not

reflected in later amendments of this Section.”

By Legislative action the Ohio legislature has

abolished the Troy Municipal Court and the Piqua

Municipal Court and has established a Miami

County Municipal Court.

Present Section 1901.021 of the Ohio Revised Code

reads in pertinent part as follows: “Notwith-

standing any other provision of this Ci.-pter, the

judge or judges of any municipal court having

territorial jurisdiction outside the corporate limits

of its municipal corporation, may sit outside the

corporate limits of the municipal corporation

within the area of its territorial jurisdiction. . .

At least one of the judges of the Miami County

Municipal Court shall sit within the municipal

corporations of Troy, Piqua, and Tipp City, and

the judges may sit in other incorporated areas of

Miami County...”

35

CONCLUSIONS OF LAW

. The Supreme Court’s denial of the writ of prohibi-

tion in case +75-771 is not a decision on the merits

which allows the doctrine of res judicata to be

successfully asserted in the present case.

. The General Assembly has abolished the Troy Mu-

nicipal Court and has abolished the Piqua Munici-

pal Court, and has abolished the Tipp City County

Court and has created the Miami County Munici-

pal Court.

. The Constitution does not prohibit this action by

the legislature.

. The Constitution does not prohibit the vacation of

the office of Troy Municipal Judge Geisinger in

this particular case.

. The general statutory Section (1901.05) establish-

ing a population limit formula for judges must give

way to the specific statutory section (R.C. 1901.08)

which provides for a specific number of judges in

Miami County.

—— es

36

MEMORANDUM OF DECISION AND

JOURNAL ENTRY OF JUDGMENT

Because of the findings in this case and the conclu-

sions in this case, the Court denies the Plaintiff’s re-

quest to find Substitute House Bill +205 to be uncon-

stitutional and void as applied to Miami County.

The Court further determines that Plaintiff is not

entitled to continue in office as judge of any court until

expiration of the term to which he had previously been

elected as judge of the Troy Municipal Court. The

Court denies Plaintiff’s claims for relief of injunction

in validation of the election of Miami County Munici-

pal Court Judges.

The Court denies the claim of the Defendants that

the prohibition case +75-771 in the Ohio Supreme

Court is res judicata as applied to this case.

Plaintiff shall pay costs of this proceeding.

On the 24th day of May 1976, the original of this

journal entry is being mailed to the Office of Judge

R. K. Wilson in Troy, for filing upon receipt. On the

same date a copy of this findings of fact, conclusions of

law, memorandum of decision and journal entry of

judgment is being mailed to John E. Fulker, Attorney

for Plaintiff: Frank S. Virzi, Attorney for Defen-

dants; and Thomas E. Martin, Assistant Attorney

General, Attorney for Defendants Ted W. Brown and

William J. Brown.

The Couri sets forth this document after a review |

of Rule 52 of the Ohio Rules of Civil Procedure in the

hope that such rule will be satisfied by this document.

The Court considers this judgment to be effective for

all purposes as of the date filed. The copies mailed to

counsel are mailed by ordinary U. S. mail from the

office of Judge Wilson in Urbana.

es ee Wl tee We le ee i ee er

ot om

— ey

het

s/ RoGER B. WILSON

Judge Sitting By Assignment