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A Writ of Mandamus Will Not Issue to Compel Action That Has Already Been Performed

In the case of State ex rel. Richardson v. Growdy, Slip Opinion No. 2023-Ohio-976, the Ohio Supreme Court denied a citizen’s request to compel a new city council president to either appoint a clerk-of-council to certify a recall petition for the recall of an elective officer or certify the recall petition pursuant to R.C. 705.92 as the procedures set forth in East Cleveland City Charter Section 52 were inoperable given the vacancy in the clerk-of-council position. The Ohio Supreme Court also denied the citizen’s request to compel the board of elections to certify the recall petition given the vacancy in the clerk-of-council position.

In this case, the citizen argued that — because the clerk-of-council position was vacant on January 20, 2023, when the recall petitions were submitted for certification — (1) the new council president must be compelled to appoint a new clerk-of-council to complete the recall-petition process in time to place the recall elections on the May 2, 2023 primary-election ballot, (2) the new council president must be compelled to certify the petitions during the clerk-of-council vacancy, and (3) the clerk-of-council’s duties under the charter should be bypassed given the circumstances of this case and the board of elections should be permitted to certify the sufficiency of the petition signatures pursuant to R.C. 705.92. In response, the new council president argued that (1) the issues asserted by the citizen were moot since a new clerk-of-council was appointed and (2) the new council president did not have the legal authority to certify the petitions. In response, the board of elections argued that R.C. 705.92 does not applies to municipalities. The Ohio Supreme Court found in favor of both the new council president and board of elections.

In support of its decision in favor of the new city council president, the Ohio Supreme Court explained that, by appointing a new clerk-of-council, the new council president already performed the action the citizen seeks to compel and, as a result, “[a] writ of mandamus will not issue to compel action that has been performed.” 2023-Ohio-976 at ¶ 14. The Ohio Supreme Court further explained that the council president has no legal duty to certify the number of valid signatures on the recall petitions as the charter imposes such duty upon the clerk-of-council, but the citizen did not name the clerk-of-council as a party to this case.

In support of its decision in favor of the board of elections, the Ohio Supreme Court explained that, because the charter provides that state laws apply to the city and its officers when they are not in conflict or inconsistent with the provisions of the charter, the provisions of R.C. 705.92 do not apply as they conflict with the recall provisions of the charter.

To read this case, click here.

Authors: Matthew John Markling and the McGown & Markling Team.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.


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