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IN THE COURT OF COMMON PLEAS
GEAUGA COUNTY, OHIO
STATE OF OHIO EX REL. ) Case No. 21-M-000093
BRIAN AMES )
) Judge David M. Ondrey
Relator, )
)
-VS- )
) RESPONDENTS’ MOTION
GEAUGA COUNTY REPUBLICAN ) TO DISMISS
CENTRAL AND EXECUTIVE )
COMMITTEES, et al. )
)
Respondents. )
oo )

Now come “Respondents” Geauga County Republican Party Central and Executive
Committees and Chairman Nancy B. McArthur, by and through counsel, and pursuant to Ohio R.
Civ. P. 12(B)(6), ask the Court to dismiss the Complaint of “Relator” Brian Ames; for the
reasons set out in the Brief attached.

Respectfully submitted,
___/s/ Nancy C. Schuster
NANCY C. SCHUSTER (#0020690)
Schuster & Simmons Co. LPA
2913 Clinton Avenue
Cleveland, Ohio 44113
(216) 348-1100 (T)
(216) 348-0013 (F)
ss@apk.net (e-mail)
Counsel for Respondents

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BRIEF IN SUPPORT
I. INTRODUCTION
On February 8, 2021, Brian Ames filed a Verified Complaint purporting to be in
Mandamus and alleging that Respondents, the Central and Executive Committees of the Geauga
County Republican Party (respectively the Central Committee and the Executive Committee)
acted as “public bodies” under ORC 121.22, the Open Meetings Act (in this brief, the “Act’),
when the Executive Committee met on February 6, 2021 to recommend a person to fill a Board
of Elections vacancy under ORC 3501.07. Mr. Ames alleges that denying him access to the
meeting was a violation of the Act and he wants the Court to declare that “they” violated the Act
and to order them “to comply with the provisions of ORC 121.22 as mandated by ORC
121.22(1)(1)”. Section (1)(1) does give the Court power to issue an injunction to compel the
members of a public body to comply with ORC 121.22.
In his Complaint, Mr. Ames alleges that:

1. The Geauga County Republican Party is “empowered” by ORC 3501.07 to make
a recommendation to the Secretary of State of a qualified person for appointment
by the Secretary of State to fill a Republican vacancy on the Geauga County
Board of Elections. (Complt., ¶ 7)

2. The recommendation must be reported on a form supplied by the Secretary of
State. (Complt., ¶ 8)

3. On February 6, 2021, at 10:00 a.m. “the Committees” met in Middlefield (Geauga
County) to select someone to fill a Board of Election vacancy resulting from the
3/1/2021 expiration of a member’s term. (Complt., ¶¶ 9-10)

4. “The Committees” are “statutorily created public bodies” and were “performing a
statutory function”. (Complt., J 11)
5. ORC 121.22 applies to the meeting. (Complt., ¶ 12)
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6. Mr. Ames made a video recording of himself being denied entrance to the
Middlefield meeting. (Complt., ¶ 16)

7. The “conduct of the meeting” violated ORC 121.22. (Complt., ¶ 17)

II. LAW AND ARGUMENT

A. Relator’s Complaint should be dismissed in accord with Ohio Civ Rule
12(B)(6) for failure to state a claim.

Mr. Ames has not stated facts which allege the elements of Mandamus!. He prays for an
injunction and a judgment declaring that Respondents have violated the Act but the facts alleged
do not, as a matter of law, permit the Court to declare a “violation” of ORC 121.22.

In Ohio: “All meetings of any “public body” are public meetings open to the public at all
times.”. Ohio Rev. Code Section 121.22(C) [Emphasis added].

ORC 3501.07 provides in pertinent part:

At a meeting held . . . before the expiration date of the term of
office of a member of the board of elections, or within fifteen days
after a vacancy ... the county executive committee of the major
political party entitled to the appointment may make and file a
recommendation with the secretary of state for the appointment of
a qualified elector. [Emphasis added]

Because as a matter of law the “Committees” are not public bodies and were not acting as
a “public body” when the Executive Committee met to make a recommendation under ORC
3501.07, it appears “beyond doubt from the complaint” that Mr. Ames cannot avoid the
definition of Public Body in the Act and can therefore prove no set of facts which would entitle
him to a recovery. Kennedy v. Specht (11" Dist. 2018), 119 N.E.3d 792, 794, O’Brien v.
University Community Tenants Union, 42 Ohio St.2d 242, syllabus, State ex rel. Russell v.
Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858.

! Although he has brought his claims in the name of the state, Mr. Ames does not (and
cannot) request the extraordinary remedy of the writ.
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B. A review of Ohio statutory and case law reveals only two ways in which a
committee or similar subsidiary of a larger body can be found to be a “public
body” for purposes of the Open Meetings Act.

1. A committee can be part of or a subsidiary of a Political Subdivision
or governmental body listed in the Open Meetings Act as a Public
Body.

In this situation, whether a committee is a “public body” is gleaned from the definition of
“public body” in the Open Meetings Act itself. The entities defined by the Act to be “Public
Bodies” are listed in ORC 121.22(B)(1)(a) as follows:

(B)  Asused in this section, “Public Body” means any of the following:

(a) Any board, commission, committee, council, or similar decision-making

body of a state agency, institution, or authority, and any

legislative authority or board, commission, committee, council, agency,
authority, or similar decision-making body of any county, township,
municipal corporation, school district, or other political subdivision or
local public institution; and

(b) Any committee or subcommittee of a body described in division (B)(1)(a)
of this section.

Ohio Rev. Code Section 121.22(B)(1)(a)-(b). [Emphasis added]

It is well settled that: “Undefined words in a statute must be accorded their usual, normal,
or customary meaning.” State ex rel. Bowman v. Columbiana Cty. Bd. Of Commrs. (1997), 77
Ohio St.3d 398, 400. The statutory term “of”, when used in its normal possessive sense, means
“indicating origin, source, descent and the like”. Black’s Law Dictionary (1979 Ed.), at p. 975;
see for example, American Chem. Soc. V. Leadscope, 10" Dist. Franklin No. 04AP-305, 2005-
Ohio-2557.

Political Party is not an entity referred to in the ORC 121.22(B)(1)(a) list of Public
Bodies. A committee of a Political Party therefore cannot be a committee or sub-committee of a
body “described in division (B)(1)(a)” as required by the Act and Mr. Ames does not allege

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otherwise. In other words, since the “origin” or “source” of both Committees — the County
Republican Party — is not a public body listed in Section 121.22(B)(1)(a)-(b), its committees
cannot be public bodies for purposes of the Open Meetings Act. Cf Banchy v. Republican Party
of Hamilton County (6th Cir. 1990), 898 F.2d 1192, 1196 (Ohio Republican party officials’
refusal to allow newly elected precinct executives to participate in election of their respective
ward chairman did not constitute “state action”). Moreover, because the Republican committees
are not committees “of any” governmental entity, but are committees of a private entity, they do
not, as a matter of law, constitute “public bodies” under Ohio Rev. Code Section 121.22.

2. An entity may be able to be temporarily “transmuted” from private to
public by the statutory conferral of a sovereign governmental
function.

The second way an entity could be a “public body” would be if an otherwise private
entity were transmuted into a “public body” by the exercise of a statutory grant of sovereign
governmental power as described in dicta in Jones v. Geauga County Republican Central
Committee (11th Dist. 2017), 82 N.E.3d 16, 19 (Political Party’s county central committee can
be “transmute[d]” into “public body” when exercising the appointment power to fill listed county
office vacancies under ORC 305.02)’. It is clear however, that such a “transmutation” occurs
° ORC 305.02 provides in pertinent part:

(A) If a vacancy in the office of county commissioner, prosecuting

attorney, county auditor, county treasurer, clerk of the court of common

pleas, sheriff, county recorder, county engineer, or coroner occurs more

than forty days before the next general election for state and county

officers, a successor shall be elected...

(B) If a vacancy occurs from any cause in any of the offices named in

division (A) of this section [outside of the time periods described in

division A], the county central committee of the political party that

nominated the last occupant . . . shall appoint a person to hold the office .

.. until a successor is elected. ...

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only when the otherwise private entity exercises a “delegation by statute of one of the sovereign
functions of government|.]” State ex rel. Cain v. Kay (1974), 38 Ohio St.2d 15, 18-19.

The “sovereign function of government” at issue is the police power, which “manifestly
extends to the protection of life, limbs, health, comfort, and the quiet of all persons and the
protection of all property within the state.” Katsafaros v. Agathakos (7th Dist. 1935), 52 Ohio
App. 290, 297. It is well-settled that one such “police power” is the power to appoint. Id. at 295
(appointment power is “proper exercise of police power”); Palmer v. Zeigler (1907), 76 Ohio St.
210, 223 (“power to appoint” identified as “police power’).

In its Jones ruling, the Eleventh District stated that a political party’s central committee
could be transmuted into a “public body” under ORC 305.02 when it exercised the sovereign
police power of appointing persons to vacancies in the County offices listed in ORC 305.02(A).
Jones v. Geauga County Republican Central Committee, supra, 2017-Ohio-2930, 82 N.E.3d at
19 (11" Dist.), cert. denied.

In the case now before the Court, it is not disputed that the statute at issue is ORC
3501.07 not 305.02. ORC 3501.07 confers upon the subject Committees no sovereign police
power to appoint persons to county offices. On the contrary, a political party executive
committee “may make and file a recommendation” for appointment of a qualified elector to the
Board of Elections (an entity not referred to in ORC 305.02) by the Secretary of State, who
retains the ultimate sovereign “police power” to fill Board of Elections vacancies by
appointment.

The statutorily undefined term “recommendation” is defined in Black’s Law Dictionary
in its usual, normal, or customary meaning, as “an action which is advisory in nature rather than

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one having any binding effect”. Black’s Law Dictionary (1979 Ed.), at p. 1144; State ex rel.
Bowman v. Columbiana Cty. Bd. Of Commrs., supra, 77 Ohio St.3d at 400.

“As Ohio’s chief elections officer, the Secretary of State oversees the elections process
and appoints the members of boards of election in each of Ohio’s 88 counties . . .”. Ohio Sec’y of
State website, https://www.sos.state.oh.us.

And so, (1) Political Parties are not included in the Open Meetings Act (ORC 121.22) list
of entities which the Act covers, and are as a matter of law not public bodies under the Act, and
(2) ORC 3501.07 (unlike ORC 305.02) does not confer upon the Respondents an actual
“sovereign function of government”, i.e.: the sovereign power to appoint, and instead confers
upon them only the right to recommend to the entity responsible for exercising the actual
sovereign “police power” to appoint. As a matter of law Section 3501.07 does not “transmute”
the Respondent political party Central and Executive Committees into “public bodies” when they
meet to recommend a person to the Secretary of State to fill a Board of Elections vacancy.

WHEREFORE, since it “appear(s) beyond doubt from the complaint that the [Relator]
can prove no set of facts entitling him to recovery”, the Executive and Central Committees of the
Geauga County Republican Party and Chairman Nancy McArthur ask the Court to dismiss this
case with prejudice for failure to state a claim.

Respectfully submitted,
___/s/ Nancy C. Schuster
NANCY C. SCHUSTER (#0020690)
Schuster & Simmons Co. LPA
2913 Clinton Avenue
Cleveland, Ohio 44113
(216) 348-1100 (T)
(216) 348-0013 (F)
ss@apk.net (e-mail)
Counsel for Respondents

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CERTIFICATE OF SERVICE
I hereby certify that on the 19" day of March, 2021, a copy of the foregoing has been
served upon the following via U.S. Mail, postage prepaid and e-mail:

Brian M. Ames Relator
2632 Ranfield Road
Mogodore, Ohio 44260
bmames00@gmail.com

___/s/ Nancy C. Schuster

Counsel for Respondents

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