The Akron Legal News

Justices oust village council member, name entitled replacement

JESSICA SHAMBAUGH
Special to the Legal News
Published: January 26, 2012

The Ohio Supreme Court last week issued a 7-0 decision to grant Terry Johnson’s request for a writ to remove Scott Richardson from the village council in Carlisle, Ohio, and declared Johnson entitled to the position.

“Because the pertinent facts are uncontroverted and relator has established his entitlement to the requested extraordinary relief, we grant the writ,” the court wrote per curiam.

Case summary provides that an at-large member of the Carlisle Village Council resigned on June 1, 2011, leaving the remaining six members to vote in a replacement on June 28, 2011. Three of the votes went to Richardson, two went to Johnson and the remaining vote went to a third candidate. After the council members disagreed as to whether the vote filled the seat, the village law director issued his opinion and swore Richardson into office.

However, the mayor appointed Johnson to the office on July 1. Richardson did not fulfill the mayor’s request to remove himself from council meetings, and Johnson filed for a writ of quo warranto to remove Richardson as a member of the Carlisle Village Council on Aug. 25, 2011, according to case summary.

Johnson argued that Richardson was holding the office unlawfully because he was not properly voted into the position, and therefore the decision was left to the mayor to appoint someone. The justices inspected the Carlisle Charter, which stated that the village council “shall appoint, by a majority vote, an eligible person” to fill the vacancy within 30 days of its creation.

“The term ‘majority’ is not defined in the charter. Undefined language used in a municipal charter must be construed according to its ordinary and common usage,” the court wrote.

In determining the common meaning of the word “majority” the justices referred to Black’s Law Dictionary, which defined it as “a number that is more than half of a total; a group more than 50 percent.” This definition supported Johnson’s argument.

“Since three is not more than half of six, Richardson did not receive enough votes to fill the vacancy on the village council under the plain language of Section 4.05(d) of the Carlisle Charter,” the justices stated.

The court then verified that the charter said, “If the council fails to fill a vacancy within 30 days following the occurrence of the vacancy, the power of council to fill the vacancy shall lapse and the mayor shall fill the vacancy by appointment immediately following the expiration of the said 30 days.”

Because the office became vacant on June 1, 2011, and the council failed to properly vote a replacement into the office by June 30, the justices determined it was the right of the mayor to appoint a replacement, according to the charter.

“Therefore, in accordance with the plain language of Section 4.05(d) of the Carlisle Charter as well as our precedent, relator has established that Richardson is unlawfully holding and exercising the office of village-council member,” the court wrote.

“Moreover, relator has also established that he is entitled to the office. ...We grant a peremptory writ of quo warranto to oust respondent Scott Richardson from the office of Carlisle Village Council member and to declare relator, Terry Johnson, entitled to that office.”

The case is cited State ex rel. Johnson v. Richardson, case No. 2012-Ohio-57.

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