# Appendix — Geisinger v. Board of County Commissioners

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 905

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0326%3A1. Public record. Not legal advice.