State ex rel. Martin v. Shabazz
Ohio Supreme Court
State ex rel. Martin v. Shabazz, 2024 Ohio 5450 (Ohio 2024)
State ex rel. Martin v. Shabazz
Opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Martin v. Shabazz, Slip Opinion No.2024-Ohio-5450
.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-5450
THE STATE EX REL . MARTIN ET AL ., APPELLANTS, v. SHABAZZ ET AL.,
APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Martin v. Shabazz, Slip Opinion No.
2024-Ohio-5450.]
Quo warranto—Mandamus—Appellants failed to challenge court of appeals’
judgment dismissing their quo warranto claim on basis of laches and
therefore waived that argument—Court of appeals’ determination that
appellants could not establish entitlement to city-council offices or that
appellees were unlawfully holding the positions affirmed—Court of
appeals’ denial of request for writ of mandamus ordering continued
payment of salaries and benefits as moot affirmed.
(No. 2024-0123—Submitted October 1, 2024—Decided November 21, 2024.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 112477,
2023-Ohio-4533.
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The per curiam opinion below was joined by FISCHER, DONNELLY,
STEWART, BRUNNER, and DETERS, JJ. KENNEDY, C.J., and DEWINE, J., concurred
in paragraphs 1-17 of the per curiam opinion and otherwise concurred in judgment
only, believing that it is unnecessary to consider the grounds for dismissal that the
court of appeals relied on other than laches.
Per Curiam.
{¶ 1} Appellants, Nathaniel Martin and Mark McClain, appeal an Eighth
District Court of Appeals judgment denying them writs of quo warranto and
mandamus. Martin and McClain argued that they were improperly removed from
their seats on the East Cleveland City Council. The court of appeals disagreed and
granted summary judgment in favor of appellees. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Recall Vote Creates Vacancy on East Cleveland City Council
{¶ 2} On November 8, 2022, Ward 3 City Councilor Ernest Smith was
recalled in a vote of the East Cleveland voters. On November 29, the Cuyahoga
County Board of Elections certified the recall vote. The recall of Smith implicated
Section 100 of the East Cleveland Charter, which provides:
When the office of a member of Council shall become
vacant, the vacancy shall be filled by election for the unexpired term
by a majority vote of all the remaining members of the Council. If
the Council fails within 30 days to fill such a vacancy, the President
of Council shall fill it by appointment.
{¶ 3} Appellee Patricia Blochowiak, a city councilor, averred before the
court of appeals that on December 17, 2022, she sent out notice of a special meeting,
at which the council was to interview applicants to replace Smith as Ward 3 city
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January Term, 2024
councilor. The meeting notice erroneously stated that the special meeting would
take place on “Monday, December 20, 2022”; the correct date was Monday,
December 19, 2022. However, the body of an email sent by Blochowiak to
numerous recipients, to which the notice was attached, stated the correct date
(though the document attached to her email did not). The council, according to
Blochowiak, gave 24 hours’ notice of the December 19 special meeting, as required
under R.C. 121.22 and in accordance with Section 103.01(b) of the East Cleveland
Code of Ordinances. Five applicants for Smith’s vacated seat were interviewed at
the December 19 special meeting, including appellant McClain and appellee Lateek
Shabazz. According to the meeting notes for the December 19 special meeting,
Martin, who at that time was the council president, appeared at the meeting but left
without participating in the interviews.
B. Competing Appointments to Office of Ward 3 Councilor
{¶ 4} After the interviews, a special council meeting was scheduled for
December 20, 2022. According to Blochowiak’s affidavit, Martin had earlier
canceled a regular meeting that had been scheduled for that date. Blochowiak
averred that she and other council members had expected Martin to delay the
council’s selection of a Ward 3 councilor “in order to run out the 30-day clock,”
which would allow him, as council president, to unilaterally appoint a Ward 3
councilor under Section 100 of the East Cleveland Charter.
{¶ 5} The council proceeded with the December 20 special meeting and
voted to go into an executive session to discuss the candidates whom the council
had interviewed. After returning from the executive session, the council appointed
Shabazz as Ward 3 councilor by a three-to-zero vote.1 Shabazz was sworn in as
councilor.
1. The East Cleveland City Council normally consists of five members. East Cleveland Charter,
§ 98. At the time of the three-to-zero vote, one seat was vacant, and Martin was not present.
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{¶ 6} In the days following the December 20 meeting, Blochowiak heard
rumors that Martin and East Cleveland Mayor Brandon King believed Shabazz’s
appointment to be improper and would not recognize it. Based on these rumors,
the council again appointed Shabazz at a special meeting convened on December
27. Then, at the same meeting, the council voted—with Martin not attending—to
reorganize the council and elect appellee Korean Stevenson as the council president
to replace Martin.
{¶ 7} Blochowiak averred that Martin recognized neither Shabazz’s
appointment as councilor nor Stevenson’s election as council president and that on
December 29, Martin purported to appoint Jacqueline Goodrum as Ward 3
councilor and announced that he had sworn Goodrum into office. Goodrum,
however, was ineligible for the office of city councilor under the city charter
because she was an employee of the East Cleveland City School District. See East
Cleveland Charter, § 99 (forbidding employees of the City of East Cleveland or the
East Cleveland Board of Education from serving as a member of city council).
Upon learning of Goodrum’s ineligibility, Martin advised the council on December
30 that he had appointed McClain as Ward 3 councilor instead of Goodrum and had
sworn McClain into office.
C. Council Reappoints Shabazz as Councilor
{¶ 8} The council convened a regular meeting on January 3, 2023.
According to Blochowiak, there was concern over Martin’s refusal to acknowledge
the council’s appointment of Shabazz as councilor and the council’s election of
Stevenson to replace Martin as president of council, as well as Martin’s attempt to
appoint McClain as councilor. Out of what Blochowiak described as “an
abundance of caution,” the council again voted to reorganize the council and to
elect Stevenson as council president at the January 3 meeting. McClain attended
that meeting as a councilor and cast votes for the reorganization of council and
against Stevenson’s election as president. Later in the meeting, however, McClain
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January Term, 2024
was asked to vacate his seat. McClain apparently did so, as the minutes indicate
that the council voted to swear in Shabazz as Ward 3 councilor for the third time.
D. Martin Is Removed as Councilor
{¶ 9} In January 2023, Blochowiak began gathering evidence of several
instances of alleged wrongdoing by Martin as a councilor. At the council’s regular
meeting on January 17, Blochowiak requested that the council place on its agenda
a resolution charging Martin with misconduct and asked for a hearing to be held on
his removal from office for malfeasance. Martin’s alleged misconduct included (1)
using $1,000 in postage charged to the city’s postage meter to mail out campaign
literature, (2) accepting gift bags from a local business owner, which Martin then
distributed to city residents without reporting the gift bags as an in-kind donation
on his campaign-finance reports, (3) signing a letter purportedly on behalf of
council, without council’s knowledge or approval, in support of the same local
business owner’s purchase of a Cuyahoga County property, and (4) holding himself
out as president of council in public documents after he had been replaced by
Stevenson. Martin denied any wrongdoing at the January 17 meeting. Martin
contended that he had no advance notice that Blochowiak would bring these
accusations against him at the January 17 meeting. The council placed Martin’s
removal hearing on the agenda for its January 31 meeting.
{¶ 10} Sometime between January 17 and January 19, council president
Stevenson convened an investigative committee to determine the validity of the
charges against Martin. The investigative committee consisted of Stevenson and
council members Shabazz and appellee Juanita Gowdy. According to
Blochowiak’s affidavit, the day before the meeting at which the council was to
consider Martin’s removal, Stevenson delivered to Martin a packet of documents
that set forth the charges and evidence against him. In a letter to council members
dated January 31, Martin requested additional time to review the documents and
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prepare a defense to the charges. Martin’s request was granted and the hearing on
the allegations was rescheduled to February 8.
{¶ 11} The day before the hearing was to occur, Martin again wrote to
council members, informing them that he had been advised not to participate in the
“charade” of the proceedings against him. Martin questioned the council’s
compliance with his due-process rights and the city charter, and he also expressed
his view that Shabazz was not a valid council member. Because Martin indicated
he would not attend the February 8 hearing, the council canceled it and placed the
issue of Martin’s removal from office on the agenda for a special meeting scheduled
for February 14. At the February 14 meeting, which Martin did not attend, the
council voted four to zero to remove Martin from office for “misconduct and
malfeasance.” Less than 30 days later, the council appointed appellee Antwon
Billings to replace Martin as councilor.
{¶ 12} On March 8, 2023, Martin and McClain filed a complaint seeking
writs of quo warranto and mandamus in the Eighth District Court of Appeals
naming appellees Shabazz, Stevenson, Blochowiak, Gowdy, and Billings as
respondents. They sought a writ of quo warranto ousting Shabazz and Billings
from their respective offices as East Cleveland city councilors. Martin did not
challenge his removal as council president in this complaint. Martin and McClain
also sought a writ of mandamus ordering appellees to continue paying their salaries
and benefits. Martin and McClain also sought an injunction restraining appellees
“from their unlawful actions in allowing the appointment of” Shabazz and Billings
to the East Cleveland City Council.
{¶ 13} Appellees filed a motion to dismiss, which the court of appeals
converted to a motion for summary judgment. Martin and McClain opposed the
motion for summary judgment. The court of appeals unanimously granted
appellees’ motion for summary judgment and denied the writs. 2023-Ohio-4533,
¶ 32-33 (8th Dist.). In rejecting Martin’s quo warranto claim, the court of appeals
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January Term, 2024
held that Martin was properly removed as councilor and that Billings was properly
appointed as his replacement. Id. at ¶ 28-29. Similarly, as to McClain’s quo
warranto claim, the court of appeals held that Shabazz was properly appointed as
Ward 3 councilor and that McClain had failed to demonstrate his entitlement to the
office. Id. at ¶ 17. In addition, the court of appeals held that the quo warranto claim
was barred by laches because of the three-week delay between Martin’s removal
from office on February 14, 2023, and the filing of the complaint on March 8, 2023.
Id. at ¶ 30.2
{¶ 14} Because neither Martin nor McClain had shown a legal entitlement
to office, the court of appeals denied their mandamus claim as moot. Id. at ¶ 31.
The court also dismissed the injunctive-relief claims for lack of jurisdiction. Id.
Martin and McClain appealed to this court as of right.
II. ANALYSIS
A. Standards of Review
{¶ 15} This court reviews de novo a court of appeals’ grant of summary
judgment in an extraordinary-writ action. See State ex rel. Phelps v. McClelland,
2020-Ohio-831, ¶ 11. To prevail on their claim for a writ of quo warranto, Martin and McClain must establish (1) that the city councilor offices in question are being unlawfully held and exercised by Shabazz and Billings and (2) that Martin and McClain are entitled to those offices. State ex rel. Zeigler v. Zumbar, 2011-Ohio- 2939, ¶ 23; see also State ex rel. Halak v. Cebula,49 Ohio St.2d 291
, 292 (1977), quoting State ex rel. Heer v. Butterfield,95 Ohio St. 428
(1915), paragraph one of the syllabus (relator “‘must show not only that he is entitled to the office, but also that it is unlawfully held and exercised by the [respondent] in the action’ ”). Quo 2. The court of appeals cited laches as a basis for both Martin’s and McClain’s quo warranto claims but referenced only the date of Martin’s removal from office as the predicate date for its laches analysis. See2023-Ohio-4533
at ¶ 30 (8th Dist.).
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warranto is the exclusive remedy to litigate the right of a person to hold a public
office. State ex rel. Flanagan v. Lewis, 2014-Ohio-2588, ¶ 12.
B. Laches
{¶ 16} The court of appeals denied a writ of quo warranto on two grounds:
(1) failure to demonstrate entitlement to relief on the merits, 2023-Ohio-4533at ¶ 11-29 (8th Dist.), and (2) laches, id. at ¶ 30. Martin and McClain did not initially challenge the second reason on this appeal and only raised it in their reply brief. By failing to challenge laches, an independent ground for the court of appeals’ decision, Martin and McClain have waived any objection to it. See State ex rel. Dodson v. Ohio Dept. of Rehab. & Corr.,2023-Ohio-2263
, ¶ 16 (by failing to
challenge the court of appeals’ holding dismissing his prohibition claim, appellant
waived any objection to that aspect of the court of appeals’ decision).
{¶ 17} Faced with the argument by appellees that this court may therefore
summarily affirm on the basis of laches, Martin and McClain argue in their reply
brief that the court of appeals’ application of laches to bar their claims was “plain
error.” But the doctrine of plain error is not applicable here. The doctrine allows
an appellate court to recognize an alleged error raised by an appellant on appeal
despite the appellant’s having not raised an objection to the alleged error in the trial
court. See State v. Quarterman, 2014-Ohio-4034, ¶ 15-16 (an argument that is not timely raised is deemed forfeited and is reviewed for plain error). But that is not the situation here—rather, laches was raised in the court of appeals, but Martin and McClain did not address the court of appeals’ laches ruling in their merit brief in this appeal, even though that rationale stood as an independent ground for the court of appeals’ denial of the writs,2023-Ohio-4533
at ¶ 30 (8th Dist.). And Martin and Shabazz’s belated attempt to attack the merits of the court of appeals’ laches ruling for the first time in their reply brief is not permitted. See State ex rel. Am. Subcontractors Assn., Inc. v. Ohio State Univ.,2011-Ohio-2881
, ¶ 40 (appellant is
forbidden from raising a new argument in a reply brief).
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January Term, 2024
{¶ 18} Accordingly, we could affirm the judgment of the court of appeals
on the issue of laches because Martin and McClain have failed to challenge that
aspect of the court of appeals’ decision on appeal. Nonetheless, in the interests of
justice, we consider the merits of Martin and McClain’s appeal.
C. Shabazz’s Entitlement to Office
{¶ 19} The quo warranto claims of both Martin and McClain challenge the
lawfulness of Shabazz’s holding the office of city councilor. McClain argues he is
entitled to the council seat Shabazz occupies, and Martin argues that his removal
from office was unlawful because of Shabazz’s invalid participation in the
investigation and council vote in favor of removal.
{¶ 20} Martin and McClain first contend that Shabazz is unqualified to hold
the office of city councilor. They base their assertion on Section 99 of the East
Cleveland Charter, which states: “No person shall be a member of Council who
holds any employment with the City of East Cleveland, the East Cleveland Board
of Education, or other incompatible public employment.” (Emphasis added.)
Because Shabazz was an employee of the Cleveland Municipal School District (not
the East Cleveland board of education) at the time of his appointment to council,
Martin and McClain argue that he is disqualified from holding office under Section
99 of the city charter.
{¶ 21} Martin and McClain, however, do not offer any argument about the
meaning of “incompatible public employment” in Section 99, much less why
employment with a school district other than the East Cleveland Board of Education
would be incompatible with serving on council. Having offered no argument why
Shabazz’s employment with a neighboring school district is “incompatible public
employment” within the meaning of the East Cleveland Charter, we reject the
argument that Shabazz was disqualified from becoming a member of council. See
In re Columbus S. Power Co., 2011-Ohio-2638, ¶ 19 (“it is not generally the proper
role of this court to develop a party’s arguments”).
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{¶ 22} Martin and McClain next argue that Shabazz’s appointment was
invalid because it resulted from nonpublic meetings of council. They question the
validity of three allegedly “non-open” meetings: (1) the December 19, 2022
meeting when candidates for the vacant council office were interviewed, (2) the
December 20, 2022 meeting when the council appointed Shabazz, and (3) the
December 27, 2022 meeting when Shabazz was reappointed and sworn in as
councilor. We reject this argument as well.
{¶ 23} Regarding the December 19 special meeting when candidates for the
open council seat were interviewed (including Shabazz and McClain), Martin and
McClain point to the fact that the public notice for the meeting erroneously stated
that the meeting was to be on “Monday, December 20, 2022” instead of Monday,
December 19, 2022. Thus, they argue that no meeting was actually noticed for
December 19. But even if we agree that the council held a meeting on December
19 that was not adequately noticed, Martin and McClain have not shown how it
matters for their quo warranto claims. There was no official action taken with
regard to Shabazz’s appointment to council at that meeting. It was not until the
December 20 meeting that the council appointed Shabazz.
{¶ 24} Regarding the December 20 and December 27 meetings, Martin and
McClain have failed to demonstrate that the court of appeals erred in its conclusion
that these were properly noticed public meetings. To support their argument that
the December 20 and December 27 special meetings were not properly noticed,
Martin and McClain cite the minutes of those meetings as evidence. But nothing
on the face of the meeting minutes supports the assertion that the meetings were
not properly noticed or otherwise not public. Further, in her affidavit before the
court of appeals, Blochowiak testified that both of these meetings were properly
noticed special meetings of the council.
{¶ 25} Martin and McClain also contend that notice for the December 20
special meeting was not posted on the council’s website, as required by the East
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January Term, 2024
Cleveland Code of Ordinances. See East Cleveland Code, § 103.01(c) (notices of
special meetings must be posted in same places as notices of regular meeting). But
Martin and Shabazz cite no evidence in the record to support this bald assertion.
{¶ 26} Finally, Martin and McClain attack the council’s vote “to swear in
Mr. Shabazz for the third time” at the January 3, 2023 council meeting. Appellees
assert that the appointment of Shabazz on three occasions in short succession was
done “out of an abundance of caution” because of the “machinations” of Martin
and Mayor King, who appellees claim refused to acknowledge the legitimacy of
Shabazz’s appointment. McClain and Martin dispute appellees’ characterization,
appearing to argue that the January 3 appointment was the first attempt to appoint
Shabazz validly at a public meeting and therefore cannot override McClain’s
appointment by Martin to the same office four days earlier.
{¶ 27} The record supports appellees’ contention that they appointed and
swore in Shabazz for a third time “out of an abundance of caution.” Indeed,
Martin’s actions corroborate appellees’ position: Martin purported to appoint
McClain to the Ward 3 council seat on December 30, 2022, even though the council
had appointed Shabazz to the same seat ten days earlier. Further, the evidence in
the record shows that the January 3, 2023 meeting was chaotic, with several
disruptions noted in the minutes. McClain began the meeting purporting to sit as a
councilor (because Martin purportedly appointed him four days earlier), and
McClain cast votes at the meeting until the rest of council asked him to vacate his
seat before swearing in Shabazz again. On the record before the court, the
contentious situation in the East Cleveland City Council explains the council’s
reasoning for its swearing in of Shabazz for a third time on January 3, 2023, not
any invalidity in his appointment on December 20 or his reappointment on
December 27. McClain and Martin have not established Shabazz’s lack of
entitlement to the office of city councilor.
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D. McClain Cannot Demonstrate Entitlement to the Office
{¶ 28} McClain contends that he was validly appointed as councilor by
Martin, acting as council president, on December 30, 2022, thereby entitling him
to the office that Shabazz occupies. As noted above, however, the council validly
appointed Shabazz as councilor on December 20. This was within 30 days of the
office being vacated by Smith’s recall election and was therefore a valid
appointment under the East Cleveland Charter. Accordingly, even if Martin were
still council president on December 30—which the parties dispute—he could not
have appointed McClain as Ward 3 councilor, because Shabazz had already been
duly appointed to that office under Section 100 of the East Cleveland Charter.
Accordingly, the court of appeals correctly denied McClain’s quo warranto claim.
See 2023-Ohio-4533 at ¶ 17 (8th Dist.).
E. Propriety of Martin’s Removal from Office
{¶ 29} Martin bases his quo warranto claim on the alleged impropriety of
his removal from office. He characterizes his removal from office as “an
orchestrated coup” by members of the East Cleveland City Council. And because
Martin was improperly removed, his argument goes, Councilor Billings does not
have a legitimate entitlement to the office.
{¶ 30} Two provisions of the East Cleveland Charter are relevant to
Martin’s claim. Section 99 governs the removal of a council member and states:
The Council shall be judge of the election and qualifications
of its own members. It may expel any member for gross
misconduct, or malfeasance in, or disqualification for office or for
conviction of a crime involving moral turpitude while in office;
provided, however, that such expulsion shall not take place without
the concurrence of four members nor until the delinquent member
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January Term, 2024
shall have been notified of the charge against him and given an
opportunity to be heard.
East Cleveland Charter, § 99.
{¶ 31} In addition, the East Cleveland Code describes a procedure under
which the council may establish an investigatory committee to consider the conduct
of “any city official or department of the city government”:
(a) Upon a majority vote of members of Council, the
President of Council is hereby directed to and shall appoint such
committee or committees to perform and conduct any investigation
into the conduct or operation of any city official or department of
the city government. Upon the appointment of any such committee,
the Council President shall notify Council through its Clerk, in
writing, of the individual members appointed to such committee, the
date that the investigation shall commence and the purpose for
which such investigation shall be held.
(b) The President of Council shall be the presiding officer of
any committee undertaking any investigation within the city and
Council shall appoint and provide the presiding officer with special
legal counsel and the counsel so appointed shall advise the presiding
officer and Council on any and all questions of law.
(c) All proceedings before any such committee by the
Council President shall be recorded and transcribed and the
transcripts shall be dealt with in the manner determined by a
majority of the committee with regard to the use or release of the
evidence, testimony or information contained in the same.
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(d) The committee hearings shall be held in such manner and
at such times as the presiding officer shall direct and shall be closed
door hearings or public hearings as the presiding officer shall direct,
based upon the subject matter to be under investigation or discussed
by such committee.
(e) For the purposes of securing witnesses, testimony or
evidence any such committee shall have the power and authority to
issue subpoenas or attachments to compel the attendance of
witnesses and/or produce any documents or evidence deemed
necessary by such committee.
(f) The committee shall endeavor to conclude any such
investigation within 30 days from the date of its appointment and
shall advise Council of any conclusions, findings or
recommendations in a written report to the entire Council.
East Cleveland Code, § 111.02.
{¶ 32} Martin argues that his removal was invalid because the council did
not follow Section 111.02.3 Specifically, he contends that the council did not duly
appoint a committee under Section 111.02(a) of the East Cleveland Code to
investigate his conduct. Appellees counter, however, that Martin’s removal was
proper under Section 99 of the East Cleveland City Charter and that nothing in
either the city code or the city charter makes an investigative committee a
prerequisite to a council member’s removal.
{¶ 33} We need not resolve the parties’ dispute over the interplay between
the city charter and the city code. As the court of appeals found, the record shows
that Stevenson, as council president, empaneled an investigative committee on
3. Martin and McClain mistakenly cite Section 100.02 of the East Cleveland Code. However, the
language cited in their merit brief is from Section 111.02.
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January Term, 2024
January 19, 2023, to investigate the allegations of malfeasance that had been
delivered to Martin at the council’s meeting two days earlier. See 2023-Ohio-4533
at ¶ 22, 25 (8th Dist.). And Martin’s merit brief does not raise any arguments
related to any other aspects of the procedure described in Section 111.02 of the city
code.
{¶ 34} Martin also argues that the investigative committee was void ab
initio because Shabazz was on it. Because Shabazz “never had the right to hold the
office of councilperson,” argues Martin, he could not serve on the investigative
committee. This argument is without merit for the reasons explained above:
Shabazz was validly appointed as a council member on December 20, 2022.
{¶ 35} Martin also argues that his removal was invalid because his conduct
did not meet the standard for expulsion under Section 99 of the East Cleveland
Charter. Quoting State ex rel. Corrigan v. Hensel, 2 Ohio St.2d 96, 100 (1965), Martin argues that “‘[a]n elective public official should not be removed except for clearly substantial reasons and conclusions that his further presence in office would be harmful to the public welfare.’ ” See also Zeigler,2011-Ohio-2939
, at ¶ 26.
{¶ 36} Martin was accused of malfeasance based on several claims of
misconduct committed while serving as councilor. These included (1) using a city
postage machine to mail his campaign literature, thereby charging the city for his
campaign expenses, (2) accepting gift bags from a local business owner that Martin
used for his campaign, without disclosing the gift bags as an in-kind campaign
contribution, (3) supporting that same business owner’s purchase of a property by
signing a letter on behalf of council without council’s approval, and (4) holding
himself out as president of council in public documents after he had been replaced
by Stevenson. Martin argues that the council removed him based on these “mere
allegations” and that the investigation failed to yield sufficient proof of the
allegations against him.
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{¶ 37} Martin’s argument is without merit. The evidence of record shows
that the board discussed the findings against Martin at the February 14, 2023
council meeting, during which it considered the resolution to remove him as
councilor. Councilor Blochowiak noted on the record that the council had before
it copies of the “envelopes from the city that [Martin] used for his campaign,” which
supported a finding of theft in office. She noted that Martin had written a letter in
support of a local business’s purchase of a building, “acting [as] if all council
members agreed.” And she also noted that Martin had accepted donations that were
not on his finance report and that she had as evidence one of the gift bags that
Martin had distributed as campaign items. Thus, the minutes of the February 14
meeting show that the council acted not on “mere allegations,” as Martin says, but
rather on the evidence it had before it. That evidence corroborated the allegations
that had been previously leveled against Martin.
{¶ 38} Martin had the opportunity to rebut the allegations and evidence but
chose not to do so. Councilor Blochowiak attested that two weeks before the
meeting at which the council voted to remove him, council president Stevenson had
delivered to Martin “a packet of materials” that contained the evidence compiled
since the January 17 meeting at which Martin was first given notice of the charges
of misconduct. Martin, however, chose not to respond to the allegations, did not
address the evidence against him, and did not appear at the meeting at which the
council considered the resolution for his removal. Based on the evidence presented
at the February 14 meeting, which Martin failed to rebut, the council had grounds
to remove Martin for malfeasance in office.
{¶ 39} Finally, the only challenge to Billings’s entitlement to hold the office
of city councilor is the alleged invalidity of Martin’s removal. Because the council
validly removed Martin from office, it follows that its appointment of Billings to
fill the vacancy was justified. The council appointed Billings within 30 days of
Martin’s removal, in accordance with Section 100 of the East Cleveland Charter.
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January Term, 2024
{¶ 40} Accordingly, the court of appeals properly denied Martin’s quo
warranto claim against Billings. See 2023-Ohio-4533 at ¶ 29 (8th Dist.).
F. Mandamus and Injunction Claims
{¶ 41} Martin and McClain also sought a writ of mandamus ordering the
continued payment of their salaries and benefits. They further sought injunctive
relief to “restrain[]” appellees from any actions allowing Shabazz and Billings to
be in office. Because it denied the quo warranto claims, the court of appeals denied
the mandamus claim as moot. Id. at ¶ 31. It also dismissed the injunction claims
for want of subject-matter jurisdiction. Id. Martin and McClain do not address
these issues in their appellate briefs. Accordingly, we affirm the denial of the writ
of mandamus as moot and the dismissal of the injunctive-relief claims for lack of
jurisdiction.
III. CONCLUSION
{¶ 42} For the foregoing reasons, we affirm the judgment of the court of
appeals.
Judgment affirmed.
__________________
Law Office of Charles Tyler Sr. and Charles Tyler Sr., for appellants.
Kenneth D. Myers, for appellees.
__________________
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Opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Martin v. Shabazz, Slip Opinion No.2024-Ohio-5450
.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-5450
THE STATE EX REL . MARTIN ET AL ., APPELLANTS, v. SHABAZZ ET AL.,
APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Martin v. Shabazz, Slip Opinion No.
2024-Ohio-5450.]
Quo warranto—Mandamus—Appellants failed to challenge court of appeals’
judgment dismissing their quo warranto claim on basis of laches and
therefore waived that argument—Court of appeals’ determination that
appellants could not establish entitlement to city-council offices or that
appellees were unlawfully holding the positions affirmed—Court of
appeals’ denial of request for writ of mandamus ordering continued
payment of salaries and benefits as moot affirmed.
(No. 2024-0123—Submitted October 1, 2024—Decided November 21, 2024.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 112477,
2023-Ohio-4533.
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SUPREME COURT OF OHIO
The per curiam opinion below was joined by FISCHER, DONNELLY,
STEWART, BRUNNER, and DETERS, JJ. KENNEDY, C.J., and DEWINE, J., concurred
in paragraphs 1-17 of the per curiam opinion and otherwise concurred in judgment
only, believing that it is unnecessary to consider the grounds for dismissal that the
court of appeals relied on other than laches.
Per Curiam.
{¶ 1} Appellants, Nathaniel Martin and Mark McClain, appeal an Eighth
District Court of Appeals judgment denying them writs of quo warranto and
mandamus. Martin and McClain argued that they were improperly removed from
their seats on the East Cleveland City Council. The court of appeals disagreed and
granted summary judgment in favor of appellees. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Recall Vote Creates Vacancy on East Cleveland City Council
{¶ 2} On November 8, 2022, Ward 3 City Councilor Ernest Smith was
recalled in a vote of the East Cleveland voters. On November 29, the Cuyahoga
County Board of Elections certified the recall vote. The recall of Smith implicated
Section 100 of the East Cleveland Charter, which provides:
When the office of a member of Council shall become
vacant, the vacancy shall be filled by election for the unexpired term
by a majority vote of all the remaining members of the Council. If
the Council fails within 30 days to fill such a vacancy, the President
of Council shall fill it by appointment.
{¶ 3} Appellee Patricia Blochowiak, a city councilor, averred before the
court of appeals that on December 17, 2022, she sent out notice of a special meeting,
at which the council was to interview applicants to replace Smith as Ward 3 city
2
January Term, 2024
councilor. The meeting notice erroneously stated that the special meeting would
take place on “Monday, December 20, 2022”; the correct date was Monday,
December 19, 2022. However, the body of an email sent by Blochowiak to
numerous recipients, to which the notice was attached, stated the correct date
(though the document attached to her email did not). The council, according to
Blochowiak, gave 24 hours’ notice of the December 19 special meeting, as required
under R.C. 121.22 and in accordance with Section 103.01(b) of the East Cleveland
Code of Ordinances. Five applicants for Smith’s vacated seat were interviewed at
the December 19 special meeting, including appellant McClain and appellee Lateek
Shabazz. According to the meeting notes for the December 19 special meeting,
Martin, who at that time was the council president, appeared at the meeting but left
without participating in the interviews.
B. Competing Appointments to Office of Ward 3 Councilor
{¶ 4} After the interviews, a special council meeting was scheduled for
December 20, 2022. According to Blochowiak’s affidavit, Martin had earlier
canceled a regular meeting that had been scheduled for that date. Blochowiak
averred that she and other council members had expected Martin to delay the
council’s selection of a Ward 3 councilor “in order to run out the 30-day clock,”
which would allow him, as council president, to unilaterally appoint a Ward 3
councilor under Section 100 of the East Cleveland Charter.
{¶ 5} The council proceeded with the December 20 special meeting and
voted to go into an executive session to discuss the candidates whom the council
had interviewed. After returning from the executive session, the council appointed
Shabazz as Ward 3 councilor by a three-to-zero vote.1 Shabazz was sworn in as
councilor.
1. The East Cleveland City Council normally consists of five members. East Cleveland Charter,
§ 98. At the time of the three-to-zero vote, one seat was vacant, and Martin was not present.
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SUPREME COURT OF OHIO
{¶ 6} In the days following the December 20 meeting, Blochowiak heard
rumors that Martin and East Cleveland Mayor Brandon King believed Shabazz’s
appointment to be improper and would not recognize it. Based on these rumors,
the council again appointed Shabazz at a special meeting convened on December
27. Then, at the same meeting, the council voted—with Martin not attending—to
reorganize the council and elect appellee Korean Stevenson as the council president
to replace Martin.
{¶ 7} Blochowiak averred that Martin recognized neither Shabazz’s
appointment as councilor nor Stevenson’s election as council president and that on
December 29, Martin purported to appoint Jacqueline Goodrum as Ward 3
councilor and announced that he had sworn Goodrum into office. Goodrum,
however, was ineligible for the office of city councilor under the city charter
because she was an employee of the East Cleveland City School District. See East
Cleveland Charter, § 99 (forbidding employees of the City of East Cleveland or the
East Cleveland Board of Education from serving as a member of city council).
Upon learning of Goodrum’s ineligibility, Martin advised the council on December
30 that he had appointed McClain as Ward 3 councilor instead of Goodrum and had
sworn McClain into office.
C. Council Reappoints Shabazz as Councilor
{¶ 8} The council convened a regular meeting on January 3, 2023.
According to Blochowiak, there was concern over Martin’s refusal to acknowledge
the council’s appointment of Shabazz as councilor and the council’s election of
Stevenson to replace Martin as president of council, as well as Martin’s attempt to
appoint McClain as councilor. Out of what Blochowiak described as “an
abundance of caution,” the council again voted to reorganize the council and to
elect Stevenson as council president at the January 3 meeting. McClain attended
that meeting as a councilor and cast votes for the reorganization of council and
against Stevenson’s election as president. Later in the meeting, however, McClain
4
January Term, 2024
was asked to vacate his seat. McClain apparently did so, as the minutes indicate
that the council voted to swear in Shabazz as Ward 3 councilor for the third time.
D. Martin Is Removed as Councilor
{¶ 9} In January 2023, Blochowiak began gathering evidence of several
instances of alleged wrongdoing by Martin as a councilor. At the council’s regular
meeting on January 17, Blochowiak requested that the council place on its agenda
a resolution charging Martin with misconduct and asked for a hearing to be held on
his removal from office for malfeasance. Martin’s alleged misconduct included (1)
using $1,000 in postage charged to the city’s postage meter to mail out campaign
literature, (2) accepting gift bags from a local business owner, which Martin then
distributed to city residents without reporting the gift bags as an in-kind donation
on his campaign-finance reports, (3) signing a letter purportedly on behalf of
council, without council’s knowledge or approval, in support of the same local
business owner’s purchase of a Cuyahoga County property, and (4) holding himself
out as president of council in public documents after he had been replaced by
Stevenson. Martin denied any wrongdoing at the January 17 meeting. Martin
contended that he had no advance notice that Blochowiak would bring these
accusations against him at the January 17 meeting. The council placed Martin’s
removal hearing on the agenda for its January 31 meeting.
{¶ 10} Sometime between January 17 and January 19, council president
Stevenson convened an investigative committee to determine the validity of the
charges against Martin. The investigative committee consisted of Stevenson and
council members Shabazz and appellee Juanita Gowdy. According to
Blochowiak’s affidavit, the day before the meeting at which the council was to
consider Martin’s removal, Stevenson delivered to Martin a packet of documents
that set forth the charges and evidence against him. In a letter to council members
dated January 31, Martin requested additional time to review the documents and
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SUPREME COURT OF OHIO
prepare a defense to the charges. Martin’s request was granted and the hearing on
the allegations was rescheduled to February 8.
{¶ 11} The day before the hearing was to occur, Martin again wrote to
council members, informing them that he had been advised not to participate in the
“charade” of the proceedings against him. Martin questioned the council’s
compliance with his due-process rights and the city charter, and he also expressed
his view that Shabazz was not a valid council member. Because Martin indicated
he would not attend the February 8 hearing, the council canceled it and placed the
issue of Martin’s removal from office on the agenda for a special meeting scheduled
for February 14. At the February 14 meeting, which Martin did not attend, the
council voted four to zero to remove Martin from office for “misconduct and
malfeasance.” Less than 30 days later, the council appointed appellee Antwon
Billings to replace Martin as councilor.
{¶ 12} On March 8, 2023, Martin and McClain filed a complaint seeking
writs of quo warranto and mandamus in the Eighth District Court of Appeals
naming appellees Shabazz, Stevenson, Blochowiak, Gowdy, and Billings as
respondents. They sought a writ of quo warranto ousting Shabazz and Billings
from their respective offices as East Cleveland city councilors. Martin did not
challenge his removal as council president in this complaint. Martin and McClain
also sought a writ of mandamus ordering appellees to continue paying their salaries
and benefits. Martin and McClain also sought an injunction restraining appellees
“from their unlawful actions in allowing the appointment of” Shabazz and Billings
to the East Cleveland City Council.
{¶ 13} Appellees filed a motion to dismiss, which the court of appeals
converted to a motion for summary judgment. Martin and McClain opposed the
motion for summary judgment. The court of appeals unanimously granted
appellees’ motion for summary judgment and denied the writs. 2023-Ohio-4533,
¶ 32-33 (8th Dist.). In rejecting Martin’s quo warranto claim, the court of appeals
6
January Term, 2024
held that Martin was properly removed as councilor and that Billings was properly
appointed as his replacement. Id. at ¶ 28-29. Similarly, as to McClain’s quo
warranto claim, the court of appeals held that Shabazz was properly appointed as
Ward 3 councilor and that McClain had failed to demonstrate his entitlement to the
office. Id. at ¶ 17. In addition, the court of appeals held that the quo warranto claim
was barred by laches because of the three-week delay between Martin’s removal
from office on February 14, 2023, and the filing of the complaint on March 8, 2023.
Id. at ¶ 30.2
{¶ 14} Because neither Martin nor McClain had shown a legal entitlement
to office, the court of appeals denied their mandamus claim as moot. Id. at ¶ 31.
The court also dismissed the injunctive-relief claims for lack of jurisdiction. Id.
Martin and McClain appealed to this court as of right.
II. ANALYSIS
A. Standards of Review
{¶ 15} This court reviews de novo a court of appeals’ grant of summary
judgment in an extraordinary-writ action. See State ex rel. Phelps v. McClelland,
2020-Ohio-831, ¶ 11. To prevail on their claim for a writ of quo warranto, Martin and McClain must establish (1) that the city councilor offices in question are being unlawfully held and exercised by Shabazz and Billings and (2) that Martin and McClain are entitled to those offices. State ex rel. Zeigler v. Zumbar, 2011-Ohio- 2939, ¶ 23; see also State ex rel. Halak v. Cebula,49 Ohio St.2d 291, 292
(1977), quoting State ex rel. Heer v. Butterfield,95 Ohio St. 428
(1915), paragraph one of the syllabus (relator “‘must show not only that he is entitled to the office, but also that it is unlawfully held and exercised by the [respondent] in the action’ ”). Quo 2. The court of appeals cited laches as a basis for both Martin’s and McClain’s quo warranto claims but referenced only the date of Martin’s removal from office as the predicate date for its laches analysis. See2023-Ohio-4533 at ¶ 30
(8th Dist.).
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SUPREME COURT OF OHIO
warranto is the exclusive remedy to litigate the right of a person to hold a public
office. State ex rel. Flanagan v. Lewis, 2014-Ohio-2588, ¶ 12.
B. Laches
{¶ 16} The court of appeals denied a writ of quo warranto on two grounds:
(1) failure to demonstrate entitlement to relief on the merits, 2023-Ohio-4533 at
¶ 11-29(8th Dist.), and (2) laches, id. at ¶ 30. Martin and McClain did not initially challenge the second reason on this appeal and only raised it in their reply brief. By failing to challenge laches, an independent ground for the court of appeals’ decision, Martin and McClain have waived any objection to it. See State ex rel. Dodson v. Ohio Dept. of Rehab. & Corr.,2023-Ohio-2263
, ¶ 16 (by failing to
challenge the court of appeals’ holding dismissing his prohibition claim, appellant
waived any objection to that aspect of the court of appeals’ decision).
{¶ 17} Faced with the argument by appellees that this court may therefore
summarily affirm on the basis of laches, Martin and McClain argue in their reply
brief that the court of appeals’ application of laches to bar their claims was “plain
error.” But the doctrine of plain error is not applicable here. The doctrine allows
an appellate court to recognize an alleged error raised by an appellant on appeal
despite the appellant’s having not raised an objection to the alleged error in the trial
court. See State v. Quarterman, 2014-Ohio-4034, ¶ 15-16(an argument that is not timely raised is deemed forfeited and is reviewed for plain error). But that is not the situation here—rather, laches was raised in the court of appeals, but Martin and McClain did not address the court of appeals’ laches ruling in their merit brief in this appeal, even though that rationale stood as an independent ground for the court of appeals’ denial of the writs,2023-Ohio-4533 at ¶ 30
(8th Dist.). And Martin and Shabazz’s belated attempt to attack the merits of the court of appeals’ laches ruling for the first time in their reply brief is not permitted. See State ex rel. Am. Subcontractors Assn., Inc. v. Ohio State Univ.,2011-Ohio-2881, ¶ 40
(appellant is
forbidden from raising a new argument in a reply brief).
8
January Term, 2024
{¶ 18} Accordingly, we could affirm the judgment of the court of appeals
on the issue of laches because Martin and McClain have failed to challenge that
aspect of the court of appeals’ decision on appeal. Nonetheless, in the interests of
justice, we consider the merits of Martin and McClain’s appeal.
C. Shabazz’s Entitlement to Office
{¶ 19} The quo warranto claims of both Martin and McClain challenge the
lawfulness of Shabazz’s holding the office of city councilor. McClain argues he is
entitled to the council seat Shabazz occupies, and Martin argues that his removal
from office was unlawful because of Shabazz’s invalid participation in the
investigation and council vote in favor of removal.
{¶ 20} Martin and McClain first contend that Shabazz is unqualified to hold
the office of city councilor. They base their assertion on Section 99 of the East
Cleveland Charter, which states: “No person shall be a member of Council who
holds any employment with the City of East Cleveland, the East Cleveland Board
of Education, or other incompatible public employment.” (Emphasis added.)
Because Shabazz was an employee of the Cleveland Municipal School District (not
the East Cleveland board of education) at the time of his appointment to council,
Martin and McClain argue that he is disqualified from holding office under Section
99 of the city charter.
{¶ 21} Martin and McClain, however, do not offer any argument about the
meaning of “incompatible public employment” in Section 99, much less why
employment with a school district other than the East Cleveland Board of Education
would be incompatible with serving on council. Having offered no argument why
Shabazz’s employment with a neighboring school district is “incompatible public
employment” within the meaning of the East Cleveland Charter, we reject the
argument that Shabazz was disqualified from becoming a member of council. See
In re Columbus S. Power Co., 2011-Ohio-2638, ¶ 19 (“it is not generally the proper
role of this court to develop a party’s arguments”).
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SUPREME COURT OF OHIO
{¶ 22} Martin and McClain next argue that Shabazz’s appointment was
invalid because it resulted from nonpublic meetings of council. They question the
validity of three allegedly “non-open” meetings: (1) the December 19, 2022
meeting when candidates for the vacant council office were interviewed, (2) the
December 20, 2022 meeting when the council appointed Shabazz, and (3) the
December 27, 2022 meeting when Shabazz was reappointed and sworn in as
councilor. We reject this argument as well.
{¶ 23} Regarding the December 19 special meeting when candidates for the
open council seat were interviewed (including Shabazz and McClain), Martin and
McClain point to the fact that the public notice for the meeting erroneously stated
that the meeting was to be on “Monday, December 20, 2022” instead of Monday,
December 19, 2022. Thus, they argue that no meeting was actually noticed for
December 19. But even if we agree that the council held a meeting on December
19 that was not adequately noticed, Martin and McClain have not shown how it
matters for their quo warranto claims. There was no official action taken with
regard to Shabazz’s appointment to council at that meeting. It was not until the
December 20 meeting that the council appointed Shabazz.
{¶ 24} Regarding the December 20 and December 27 meetings, Martin and
McClain have failed to demonstrate that the court of appeals erred in its conclusion
that these were properly noticed public meetings. To support their argument that
the December 20 and December 27 special meetings were not properly noticed,
Martin and McClain cite the minutes of those meetings as evidence. But nothing
on the face of the meeting minutes supports the assertion that the meetings were
not properly noticed or otherwise not public. Further, in her affidavit before the
court of appeals, Blochowiak testified that both of these meetings were properly
noticed special meetings of the council.
{¶ 25} Martin and McClain also contend that notice for the December 20
special meeting was not posted on the council’s website, as required by the East
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January Term, 2024
Cleveland Code of Ordinances. See East Cleveland Code, § 103.01(c) (notices of
special meetings must be posted in same places as notices of regular meeting). But
Martin and McClain cite no evidence in the record to support this bald assertion.
{¶ 26} Finally, Martin and McClain attack the council’s vote “to swear in
Mr. Shabazz for the third time” at the January 3, 2023 council meeting. Appellees
assert that the appointment of Shabazz on three occasions in short succession was
done “out of an abundance of caution” because of the “machinations” of Martin
and Mayor King, who appellees claim refused to acknowledge the legitimacy of
Shabazz’s appointment. McClain and Martin dispute appellees’ characterization,
appearing to argue that the January 3 appointment was the first attempt to appoint
Shabazz validly at a public meeting and therefore cannot override McClain’s
appointment by Martin to the same office four days earlier.
{¶ 27} The record supports appellees’ contention that they appointed and
swore in Shabazz for a third time “out of an abundance of caution.” Indeed,
Martin’s actions corroborate appellees’ position: Martin purported to appoint
McClain to the Ward 3 council seat on December 30, 2022, even though the council
had appointed Shabazz to the same seat ten days earlier. Further, the evidence in
the record shows that the January 3, 2023 meeting was chaotic, with several
disruptions noted in the minutes. McClain began the meeting purporting to sit as a
councilor (because Martin purportedly appointed him four days earlier), and
McClain cast votes at the meeting until the rest of council asked him to vacate his
seat before swearing in Shabazz again. On the record before the court, the
contentious situation in the East Cleveland City Council explains the council’s
reasoning for its swearing in of Shabazz for a third time on January 3, 2023, not
any invalidity in his appointment on December 20 or his reappointment on
December 27. McClain and Martin have not established Shabazz’s lack of
entitlement to the office of city councilor.
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SUPREME COURT OF OHIO
D. McClain Cannot Demonstrate Entitlement to the Office
{¶ 28} McClain contends that he was validly appointed as councilor by
Martin, acting as council president, on December 30, 2022, thereby entitling him
to the office that Shabazz occupies. As noted above, however, the council validly
appointed Shabazz as councilor on December 20. This was within 30 days of the
office being vacated by Smith’s recall election and was therefore a valid
appointment under the East Cleveland Charter. Accordingly, even if Martin were
still council president on December 30—which the parties dispute—he could not
have appointed McClain as Ward 3 councilor, because Shabazz had already been
duly appointed to that office under Section 100 of the East Cleveland Charter.
Accordingly, the court of appeals correctly denied McClain’s quo warranto claim.
See 2023-Ohio-4533 at ¶ 17 (8th Dist.).
E. Propriety of Martin’s Removal from Office
{¶ 29} Martin bases his quo warranto claim on the alleged impropriety of
his removal from office. He characterizes his removal from office as “an
orchestrated coup” by members of the East Cleveland City Council. And because
Martin was improperly removed, his argument goes, Councilor Billings does not
have a legitimate entitlement to the office.
{¶ 30} Two provisions of the East Cleveland Charter are relevant to
Martin’s claim. Section 99 governs the removal of a council member and states:
The Council shall be judge of the election and qualifications
of its own members. It may expel any member for gross
misconduct, or malfeasance in, or disqualification for office or for
conviction of a crime involving moral turpitude while in office;
provided, however, that such expulsion shall not take place without
the concurrence of four members nor until the delinquent member
12
January Term, 2024
shall have been notified of the charge against him and given an
opportunity to be heard.
East Cleveland Charter, § 99.
{¶ 31} In addition, the East Cleveland Code describes a procedure under
which the council may establish an investigatory committee to consider the conduct
of “any city official or department of the city government”:
(a) Upon a majority vote of members of Council, the
President of Council is hereby directed to and shall appoint such
committee or committees to perform and conduct any investigation
into the conduct or operation of any city official or department of
the city government. Upon the appointment of any such committee,
the Council President shall notify Council through its Clerk, in
writing, of the individual members appointed to such committee, the
date that the investigation shall commence and the purpose for
which such investigation shall be held.
(b) The President of Council shall be the presiding officer of
any committee undertaking any investigation within the city and
Council shall appoint and provide the presiding officer with special
legal counsel and the counsel so appointed shall advise the presiding
officer and Council on any and all questions of law.
(c) All proceedings before any such committee by the
Council President shall be recorded and transcribed and the
transcripts shall be dealt with in the manner determined by a
majority of the committee with regard to the use or release of the
evidence, testimony or information contained in the same.
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SUPREME COURT OF OHIO
(d) The committee hearings shall be held in such manner and
at such times as the presiding officer shall direct and shall be closed
door hearings or public hearings as the presiding officer shall direct,
based upon the subject matter to be under investigation or discussed
by such committee.
(e) For the purposes of securing witnesses, testimony or
evidence any such committee shall have the power and authority to
issue subpoenas or attachments to compel the attendance of
witnesses and/or produce any documents or evidence deemed
necessary by such committee.
(f) The committee shall endeavor to conclude any such
investigation within 30 days from the date of its appointment and
shall advise Council of any conclusions, findings or
recommendations in a written report to the entire Council.
East Cleveland Code, § 111.02.
{¶ 32} Martin argues that his removal was invalid because the council did
not follow Section 111.02.3 Specifically, he contends that the council did not duly
appoint a committee under Section 111.02(a) of the East Cleveland Code to
investigate his conduct. Appellees counter, however, that Martin’s removal was
proper under Section 99 of the East Cleveland City Charter and that nothing in
either the city code or the city charter makes an investigative committee a
prerequisite to a council member’s removal.
{¶ 33} We need not resolve the parties’ dispute over the interplay between
the city charter and the city code. As the court of appeals found, the record shows
that Stevenson, as council president, empaneled an investigative committee on
3. Martin and McClain mistakenly cite Section 100.02 of the East Cleveland Code. However, the
language cited in their merit brief is from Section 111.02.
14
January Term, 2024
January 19, 2023, to investigate the allegations of malfeasance that had been
delivered to Martin at the council’s meeting two days earlier. See 2023-Ohio-4533
at ¶ 22, 25 (8th Dist.). And Martin’s merit brief does not raise any arguments
related to any other aspects of the procedure described in Section 111.02 of the city
code.
{¶ 34} Martin also argues that the investigative committee was void ab
initio because Shabazz was on it. Because Shabazz “never had the right to hold the
office of councilperson,” argues Martin, he could not serve on the investigative
committee. This argument is without merit for the reasons explained above:
Shabazz was validly appointed as a council member on December 20, 2022.
{¶ 35} Martin also argues that his removal was invalid because his conduct
did not meet the standard for expulsion under Section 99 of the East Cleveland
Charter. Quoting State ex rel. Corrigan v. Hensel, 2 Ohio St.2d 96, 100(1965), Martin argues that “‘[a]n elective public official should not be removed except for clearly substantial reasons and conclusions that his further presence in office would be harmful to the public welfare.’ ” See also Zeigler,2011-Ohio-2939, at ¶ 26
.
{¶ 36} Martin was accused of malfeasance based on several claims of
misconduct committed while serving as councilor. These included (1) using a city
postage machine to mail his campaign literature, thereby charging the city for his
campaign expenses, (2) accepting gift bags from a local business owner that Martin
used for his campaign, without disclosing the gift bags as an in-kind campaign
contribution, (3) supporting that same business owner’s purchase of a property by
signing a letter on behalf of council without council’s approval, and (4) holding
himself out as president of council in public documents after he had been replaced
by Stevenson. Martin argues that the council removed him based on these “mere
allegations” and that the investigation failed to yield sufficient proof of the
allegations against him.
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SUPREME COURT OF OHIO
{¶ 37} Martin’s argument is without merit. The evidence of record shows
that the board discussed the findings against Martin at the February 14, 2023
council meeting, during which it considered the resolution to remove him as
councilor. Councilor Blochowiak noted on the record that the council had before
it copies of the “envelopes from the city that [Martin] used for his campaign,” which
supported a finding of theft in office. She noted that Martin had written a letter in
support of a local business’s purchase of a building, “acting [as] if all council
members agreed.” And she also noted that Martin had accepted donations that were
not on his finance report and that she had as evidence one of the gift bags that
Martin had distributed as campaign items. Thus, the minutes of the February 14
meeting show that the council acted not on “mere allegations,” as Martin says, but
rather on the evidence it had before it. That evidence corroborated the allegations
that had been previously leveled against Martin.
{¶ 38} Martin had the opportunity to rebut the allegations and evidence but
chose not to do so. Councilor Blochowiak attested that two weeks before the
meeting at which the council voted to remove him, council president Stevenson had
delivered to Martin “a packet of materials” that contained the evidence compiled
since the January 17 meeting at which Martin was first given notice of the charges
of misconduct. Martin, however, chose not to respond to the allegations, did not
address the evidence against him, and did not appear at the meeting at which the
council considered the resolution for his removal. Based on the evidence presented
at the February 14 meeting, which Martin failed to rebut, the council had grounds
to remove Martin for malfeasance in office.
{¶ 39} Finally, the only challenge to Billings’s entitlement to hold the office
of city councilor is the alleged invalidity of Martin’s removal. Because the council
validly removed Martin from office, it follows that its appointment of Billings to
fill the vacancy was justified. The council appointed Billings within 30 days of
Martin’s removal, in accordance with Section 100 of the East Cleveland Charter.
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January Term, 2024
{¶ 40} Accordingly, the court of appeals properly denied Martin’s quo
warranto claim against Billings. See 2023-Ohio-4533 at ¶ 29 (8th Dist.).
F. Mandamus and Injunction Claims
{¶ 41} Martin and McClain also sought a writ of mandamus ordering the
continued payment of their salaries and benefits. They further sought injunctive
relief to “restrain[]” appellees from any actions allowing Shabazz and Billings to
be in office. Because it denied the quo warranto claims, the court of appeals denied
the mandamus claim as moot. Id. at ¶ 31. It also dismissed the injunction claims
for want of subject-matter jurisdiction. Id. Martin and McClain do not address
these issues in their appellate briefs. Accordingly, we affirm the denial of the writ
of mandamus as moot and the dismissal of the injunctive-relief claims for lack of
jurisdiction.
III. CONCLUSION
{¶ 42} For the foregoing reasons, we affirm the judgment of the court of
appeals.
Judgment affirmed.
__________________
Law Office of Charles Tyler Sr. and Charles Tyler Sr., for appellants.
Kenneth D. Myers, for appellees.
__________________
17
Reference
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- Quo warranto—Mandamus—Appellants failed to challenge court of appeals' judgment dismissing their quo warranto claim on basis of laches and therefore waived that argument—Court of appeals' determination that appellants could not establish entitlement to city-council offices or that appellees were unlawfully holding the positions affirmed—Court of appeals' denial of request for writ of mandamus ordering continued payment of salaries and benefits as moot affirmed.