State ex rel. Baker v. Fox

2022 Ohio 667

• Court: Ohio Court of Appeals
• Decided: March 7, 2022
• Docket: 2022 AP 01 0002
• Status: Published

Opinion

[Cite as State ex rel. Baker v. Fox, 2022-Ohio-667.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO, EX REL. Hon. Earle E. Wise, Jr., P. J. ROBERT B. BAKER Hon. W. Scott Gwin, J. Hon. John W. Wise, J. Petitioner Case No. 2022 AP 01 0002 -vs-

MATTHEW A. FOX OPINION

Respondent

CHARACTER OF PROCEEDING: Writ of Quo Warranto

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: March 7, 2022

APPEARANCES:

For Petitioner For Respondent

ROBERT B. BAKER MATTHEW A. FOX PRO SE PRO SE 951 Eastport Avenue 1004 Eastport Avenue Uhrichsville, Ohio 44683 Uhrichsville, Ohio 44683 Tuscarawas County, Case No. 2022 AP 01 0002 2

Wise, John, J.

{¶1} On January 5, 2022, Robert Baker filed a Complaint for Writ of Quo

Warranto against Matthew A. Fox. Baker challenges Fox’s appointment to the Uhrichsville

Ward 1 council member seat.

I. Background

{¶2} In his Complaint for Writ of Quo Warranto Baker asks this Court to require

Fox “to show by warrant he lawfully holds the office of Uhrichsville Ward 1 Council

member, and that * * * Fox be ousted therefrom * * *” Baker claims entitlement to this

relief based on the following facts. Fox was previously appointed to the position of

Uhrichsville Council-at-Large member for a term that expired on December 31, 2021.

Complaint, ¶ 5. At a council meeting held on December 9, 2021, Fox, while holding the

council-at-large seat, was appointed by Uhrichsville Council to fill the open position of

Uhrichsville Ward 1 council member. Id., ¶ 6.

{¶3} After Fox’s appointment, Baker alleges Fox “simultaneously held the

positions of Uhrichsville Council at Large member and Uhrichsville Ward 1 Council

member, in violation of Ohio law.” Id., ¶ 7. On December 10, 2021, Fox resigned the

position of Uhrichsville Council-at-Large member to the Tuscarawas County Board of

Elections effective December 9, 2021, at 9:00 p.m. Id., ¶ 8. Baker claims Fox now

unlawfully holds the office of Uhrichsville Ward 1 council member “due to already holding

an incompatible public office at the time of the appointment of * * * Fox to the position of

Uhrichsville Ward 1 Council member.” Id., ¶ 10.

{¶4} Baker filed an Answer on January 20, 2022. Tuscarawas County, Case No. 2022 AP 01 0002 3

II. Analysis

{¶5} Baker seeks relief in quo warranto. “In order for a writ of quo warranto to

issue, relator must establish (1) that the office is being unlawfully held and exercised by

respondent, and (2) that relator is entitled to the office. (Citations omitted.) State ex rel.

Herman v. Klopfleisch, 72 Ohio St.3d 581, 583, 651 N.E.2d 995 (1995). R.C. 2733.08

provides, in part: “When an action in quo warranto is brought against a person for usurping

an office, the petition shall set forth the name of the person claiming to be entitled to the

office, with an averment of his right thereto.” (Emphasis added.)

{¶6} Standing to initiate a quo warranto action is established in R.C. 2733.05 and

R.C. 2733.06. Standing “is given exclusively to the attorney general and county

prosecutors with a single exception: persons who claim entitlement to a public office.”

(Emphasis sic.) (Citation omitted.) Kirby v. Oatts, 2nd Dist. Montgomery No. 28455, 2020-

Ohio-301, 151 N.E.3d 1083, ¶ 37. Thus, “[a] private individual can maintain an action in

quo warranto upon the relation of the state if he claims, in good faith, to be entitled to a

public office unlawfully held by another. In order, however, to recover that office a private

individual must establish that the office is unlawfully held and that he is himself entitled to

the office.” State ex rel. Halak v. Cebula, 50 Ohio App.2d 334, 363 N.E.2d 744 (8th

Dist.1976), paragraph two of the syllabus.

{¶7} We sua sponte dismiss Baker’s quo warranto complaint under Civ.R.

12(B)(6) for failure to state a claim upon which relief can be granted because he lacks

standing. “Dismissal of a complaint based on * * * lack of standing to bring the action is

commonly construed as a dismissal for ‘failure to state a claim upon which relief can be

granted.’ ” (Citations omitted.) In re Lubrizol Shareholders Litigation, 11th Dist. Lake No. Tuscarawas County, Case No. 2022 AP 01 0002 4

2016-L-026, 2017-Ohio-622, 79 N.E.3d 579, ¶ 15. “Sua sponte dismissal of a complaint

for failure to state a claim is appropriate if the complaint is frivolous or the claimant

obviously cannot prevail on the facts alleged in the complaint.” State ex rel. Bruggeman

v. Ingraham, 87 Ohio St.3d 230, 231, 718 N.E.2d 1285 (1999), citing State ex rel.

Thompson v. Spon, 83 Ohio St.3d 551, 553, 700 N.E.2d 1281 (1998).

{¶8} Although Baker alleges Fox unlawfully holds the Ward 1 council member

seat, Baker does not claim title to any specific office on the Uhrichsville council. Baker

only alleges in paragraph 3 of the complaint that he “is eligible to hold office as a member

of the Uhrichsville Council.” Being eligible to hold office and claiming entitlement to a

specific office are two different things. Many residents of Uhrichsville would be eligible to

hold office as a member of council.

{¶9} In his prayer for relief, “Baker prays that Respondent Matthew A. Fox be

required to show by warrant he lawfully holds the office of Uhrichsville Ward 1 Council

member, and that Respondent Matthew A. Fox be ousted therefrom, and for such further

relief as may be necessary and proper * * *” Again, Baker does not claim he is entitled to

a seat on council. Finally, even if we were to interpret Baker’s allegations to mean that he

is eligible to hold office, nowhere in the Complaint does Baker indicate which office he is

allegedly entitled to hold. For these reasons, Baker lacks standing to bring this quo

warranto original action and we sua sponte dismiss his complaint.

{¶10} The Ohio Supreme Court reached the same conclusion in State ex rel.

Annable v. Stokes, 24 Ohio St.2d 32, 32-33, 262 N.E.2d 863 (1970), where the Court

dismissed a quo warranto complaint because none of the relators claimed title to the

congressional office they argued was unconstitutionally created and neither the attorney Tuscarawas County, Case No. 2022 AP 01 0002 5

general nor the prosecuting attorney brought the action. Similarly, in Halak, the court of

appeals dismissed a quo warranto complaint because relator presented no good faith

claim of entitlement to a disputed office and therefore, lacked standing. Halak at 337, 363

N.E.2d 744.

III. Conclusion

{¶11} For the above reasons, Baker’s Complaint for Writ of Quo Warranto is sua

sponte dismissed. Baker lacks standing to pursue the complaint under R.C. 2733.06. The

clerk of courts is hereby directed to serve upon all parties not in default notice of this

judgment and its date of entry upon the journal. See Civ.R. 58(B).

{¶12} COMPLAINT IN QUO WARRANTO IS SUA SPONTE DISMISSED.

{¶13} COSTS TO RELATOR.

{¶14} IT IS SO ORDERED.

By: Wise, John, J.

Wise, Earle, P. J., and

Gwin, J., concur.

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