Case No.12 -

SUPREME COURTOF THE STATE OF OHIO

STATE OF OHIO ex rel.KENT LANHAM,

Relator,

V.

DANNY R. BUBP, Putative State Representative,

Respondent.

Original Action in Mandamus

MEMORANDUM IN SUPPORT OFVERIFIED COMPLAINT FOR WRIT OF MANDAMUS

Curt C. Hartman (0064242)The Law Firm of Curt C. Hartman3749 Fox Point CourtAmelia, OH 45102(513) 752-8800h artmanlawfirm( fuse. net

Counselforltelator

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JAN 2 4 20i2

CLERK OF COURTSUPREME COURT OF OHIO

CLERK OF COURTSUPREME COURTOFOHIO

SUPREME COURTOF THE STATE OF OHIO

STATE OF OHIO ex reG KENT LANHAM, . Case No.

Relator,

V. RELATOR'S MEMORANDUM

DANNY R. BUBP, Putative State Representative, . IN SUPPORTOF VERIFIEDCOMPLAINT FOR WRIT OF

Respondent. . MANDAMUS

Comes now the State of Ohio, by and through Kent Lanham ("Relator"), and tenders the

following memorandum in support of the Verified Complaint for Writ of Mandamus.

MEMORANDUM IN SUPPORT

"the world may know, that so far as we approve of monarchy,that in America THE LAW IS KING. For as in absolute governments the King is law,

so in free countries the law OUGHT to be King; and there ought to be no other. "

- Thomas Paine, Common Sense (1776)

We are a nation of laws - laws that apply to the governed and, at least in theory, laws that

apply in the same manner as to those who govern. But whenever there is a law on the books and

government officials can select and chose whether they will obey that law or whether they will

conveniently ignore it, we no longer have the country that our Founders provided to us, for, in

such instances, there is no rule of law.

The rule of law is a binary condition - it either exists or it does not. Either the law is king

or it is not. Cutting away at the law, disregarding certain laws, disrespecting the law, or

selectively ignoring the law is not a trivial event nor does it mean that the rule of law is just

slightly in trouble. For if one law is not upheld or respected, then there is no rule of law. If

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government officials may comply with the law at their convenience or whim, rather than in full

compliance with it, then the law is no longer king.

Though this case involves what should be a simple public records matter, the issue

underlying the public records matter is also of significant importance - for just as compliance vel

non with the Public Records Act indicates whether rule of law is truly king, the underlying issue

goes even more significantly and directly to the question of whether we are truly a nation of

laws. In blatant disregard and disrespect to the Ohio Constitution and state law, Danny R. Bubp

has and continues to exercise the position and authority of a state representative while

simultaneously holding a second public office. And even though the issue of Mr. Bubp illegally

and unconstitutionally holding two public offices was raised as far back as October 2009, Mr.

Bubp has continued to flaunt the Ohio Constitution and state law by continuing to exercise the

power and authority of state representative and a mayor's court magistrate even during the

present general assembly. In so doing, Mr. Bubp has placed himself above the law.

This case directly concerns a public records request tendered to Mr. Bubp for records

concerning the authority or ability for Mr. Bubp to simultaneously hold the public offices of state

representative and a magistrate in a mayor's court. Yet, in light of Mr. Bubp's.on-going

disregard of the Ohio Constitution and state law by simultaneously holding two public offices, it

should not be any surprise that Mr. Bubp also demonstrated his disregard for the Public Records

Act. For even though the subject public records request was hand delivered to Mr. Bubp's office

over 2 months ago, Mr. Bubp has completely ignored the request, failing to respond

affirmatively or negatively to the request.

While Relator may not have legal standing to directly challenge the legitimacy of Mr.

Bubp simultaneously holding the public offices of state representative and mayor's court

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magistrate, Relator does bring this action in order to have this Court compel Mr. Bubp to comply

with his legal duties and obligations under the Public Records Act so that the public may be

better informed as to the illegitimacy of his holding and exercising the public office of state

representative.

FACTUAL AND LEGAL BACKGROUND

In October 2009, a news report aired on a local television station in Cincinnati reporting

that a complaint had been filed with, inter alia, then-Ohio Attorney General Richard Cordray

concerning the fact that state representative Danny R. Bubp was simultaneously holding the

public offices of state representative and mayor's court magistrate in direct contravention of

Article II, Section 4 of the Ohio Constitution and R.C. § 101.26. At the time of the news report,

Mr. Bubp was serving in the Ohio General Assembly as a member of the house of

representatives from the 88th state house district. However, at the same time, Mr. Bubp was also

holding and exercising the public office of mayor's court magistrate for the Village of Ripley.

Part of the news report also indicated, though, that Mr. Bubp had asserted that he had obtained an

opinion from the Joint Legislative Ethics Committee or the Legislative Inspector General

declaring that Mr. Bubp could simultaneously hold the public offices of state representative and

mayor's court magistrate, notwithstanding the provisions of the state constitution or state law. ^

Article II, Section 4 of the Ohio Constitution provides, in pertinent part:

No member of the general assembly shall, during the term for which he waselected, unless during such term he resigns therefrom, hold any public officeunder the United States, or this state, or a political subdivision thereof....

1 Additionally, as part of the news report, a letter or correspondence was shown on thevideo portion of the news report at the time the reporter indicated that Mr. Bubp claimed he hadreceived the foregoing opinion, implying that Mr. Bubp had provided to the reporter and couldproduce pursuant to a public records request the opinion.

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In 1913, the Ohio Attorney General, in addressing the comparable predecessor provision of this

constitutional provision, expressly recognized that this provision mandates that "[t]he holding of

any and all other offices renders one both ineligible to, as well as causing the forfeiture of their

seat in the general assembly." 1913 Ohio Att'y Gen'l Opin. No. 236. Thus, when a member of

the General Assembly serves in another public office, if he or she does not formally resign from

the General Assembly, he or she has, at a minimum, implicitly resigned and forfeited his or her

seat in the General Assembly, thus creating a vacancy as a matter of law.

In addition to the foregoing constitutional provision, a provision of state law is also

applicable. Specifically, Ohio Revised Code § 101.26 provides (with emphasis added) that:

No member of either house of the general assembly, except in compliancewith this section, shall knowingly do any of the following:

(C) ... accept any appointment, office, or employment from any executiveor administrative branch or department of the state that provides othercompensation than actual and necessary expenses. Any appointee, officer, oremployee described in division ...(C) of this section who accepts a certificate ofelection to either house immediately shall resign from the appointment, office, oremployment, and, if he fails or refuses to do so, his seat in the general assemblyshall be deemed vacant. Any member of the general assembly who accepts anyappointment, office, or employment described in division ...(C) of this sectionimmediately shall resign from the general assembly, and, if he fails or refuses todo so, his seat in the general assembly shall be deemed vacant. This section doesnot apply to members of either house of the general assembly serving . ..[as]school teachers, employees of boards of education, notaries public, or officers ofthe militia.

In 1955, the Ohio Attorney General recognized that the concept of the "state" as used R.C. §

101.26 was not limited to only the central agencies of the state government, but was intended to

be given a broad application to mean "the whole governmental organization of the state,

including the numerous local subdivisions therein." 1955 Ohio Op. Att'y Gen. No. 6102 ("the

acceptance by a member of the General Assembly of employment by a local school district as a

school bus driver operates to vacate such individual's legislative office as provided in Section

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101.26, Revised Code"). Thus, the prohibition in R.C. § 101.26 extends to offices in

municipalities. See State ex rel. Ramey v. Davis, 119 Ohio St. 596 (1929)(syllabus ¶1)("[t]he

sovereignty of the state in respect to its courts extends over all the state, including municipalities,

whether governed by charter or general laws"). Thus, pursuant to the express terms of R.C. §

101.26, if a member of the General Assembly should accept any appointment, office, or

employment of a municipality (or continue to serve in such capacity), his or her seat in the

General Assembly "shall be deemed vacant" and any further claim to serve in the General

Assembly (including committee hearings, voting, etc., as well as receiving the emoluments

thereof) is the unlawful assumption and exercise of a public office and/or he or she has forfeited

the office of being a member of the General Assembly. See 1935 Ohio Op. Att'y Gen. No. 4366

(in construing both the constitutional and statutory prohibitions, declared that "while a member

of the General Assembly may accept any of the employments you mention when the General

Assembly is not in session, he must resign his seat in the General Assembly immediately or his

seat will be considered vacant").

As for whether a mayor's court magistrate constitutes a "public office" as used in Article

II, Section 4 of the Ohio Constitution and R.C. § 101.26, this Court has indicated that the key

consideration is whether the office or position at issue exercises powers which are part of the

sovereign powers of government. State ex rel. Landis v. Board of Comm'rs of Butler Cty., 95

Ohio St. 157, 159-60 (1917)("[t]he chief and most decisive characteristic of a public office is

determined by the quality of the duties with which the appointee is invested, and by the fact that

such duties are conferred upon the appointee by law.... It is no longer an open question in this

state that `to constitute a public office ... it is essential that certain independent public duties, a

part of the sovereignty of the state, should be appointed to it by law.' In all of these cases it is

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manifest that the functional powers imposed must be those which constitute a part of the

sovereignty of the state"); Monarch Constr. Co. v. Ohio School Facilities Comm'n, 118 Ohio

Misc.2d 248, 269, 2002-Ohio-2955 ¶77 ("[a] `public officer,' in contrast to a public employee, is

invested by law with a portion of the sovereignty of the state and is authorized to exercise

functions of an executive, legislative, or judicial character for the benefit of the public"). In

Ohio, a mayor's court magistrate is generally empowered by statutory law to exercise

jurisdiction over certain criminal cases, including violations of municipal ordinances and some

traffic cases, as well as parking violations. See R.C. § 1905.01; R.C. § 1905.05(A) ("[a] mayor

of a municipal corporation that has a mayor's court may appoint a person as mayor's court

magistrate to hear and determine prosecutions and criminal causes in the mayor's court that are

within the jurisdiction of the mayor's court). For a mayor's court magistrate is empowered by

law: (i) to "hear and determine prosecutions and criminal causes in the mayor's court that are

within the jurisdiction of the mayor's court, as set forth in section 1905.01 of the Revised Code."

R.C. § 1905.05; (ii) to "award and issue all writs and process that are necessary to enforce the

administration of justice throughout the municipal corporation." R.C. § 1905.20; Village of

Oakwood v. Wuliger, 69 Ohio St.2d 453, 455, 432 N.E.2d 809, 811 (1982)(mayor's court

magistrates have "the power to issue a warrant for the arrest of [a] defendant to compel his

appearance at a stated time by reason of the mayor's statutory powers enumerated in R.C.

1905.20"); and (iii) to "punish contempts, compel the attendance of jurors and witnesses, and

establish rules for the examination and trial of all cases brought before him, in the same manner

as judges of county courts." Ohio Rev. Code. 1905.28.

Thus, the powers of a mayor's court magistrate, including those in the preceding

paragraph, are judicial powers. See Village of Covington v. Lyle, 69 Ohio St.2d 659, 662, 433

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N.E.2d 597, 599 (1982)(discussing the "mayor's judicial decisions"); see State v. Kimes, 2003-

Ohio-3752 ¶15 ("a mayor may appoint a mayor's court magistrate to handle mayor's court

judicial matters"). For "a person, by virtue of his election to the office of mayor ... becomes a

judicial officer. As such, he must decide litigated criminal questions according to law." State ex

rel. Brockman v. Proctor, 35 Ohio St.2d 79, 88, 298 N.E.2d 532, 538 (1973)(Corrigan, J.,

dissenting). And "[t]he exercise of judicial powers is clearly a sovereign function of

government." 1992 Ohio Op. Att'y Gen. No. 92-041 at 2-163 n.3. Thus, a person serving as a

mayor's court magistrate is exercising a "public office" as used in Article II, Section 4 of the

Ohio Constitution, as well as being subject to the requirements of Ohio Revised Code § 101.26.

See 1992 Ohio Op. Atty. Gen. No. 2-158 (the position of a mayor's court magistrate does, inter

alia, exercise a sovereign function of government and, accordingly, "the position of mayor's

court magistrate is a public office of the municipal corporation"); see also 1990 Ohio Op. Att'y

Gen. No. 90-089 (the position of municipal court referee is a public office).

Notwithstanding the foregoing, Mr. Bubp has continued to simultaneously hold and

exercise at least two public offices? In fact, during the present General Assembly, Mr. Bubp has

continued to simultaneously hold and exercise the public offices of state representative and a

mayor's court magistrate. Recognizing that, if there is to be rule of law, then elected officials

cannot simply comply with the law at their convenience or whim, a public records request was

tendered to Mr. Bubp concerning his claim that he can legally hold and exercise the public

offices of state representative and a mayor's court magistrate at the same time.

2 Investigation has revealed that, at least in 2009 and 2010, Mr. Bubp held a third publicoffice, that of mayor's court magistrate for the Village of Winchester.

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Specifically, on November 17, 2011, counsel, on behalf of the Relator, hand delivered to

Mr. Bubp's office in the Vem Rife State Office Tower a written public records request (the

"Public Records Request Letter") which sought the following public records:

• records that discuss or evaluate the authority or ability for Mr. Bubp tosimultaneously hold the public offices of state representative and a magistratein a mayor's court; ,

• records that document any request tendered by or on behalf of Mr. Bubp as tohis authority or ability to simultaneously hold the public offices of staterepresentative and a magistrate in a mayor's court;

• records that document any response to any request tendered by or on behalf ofMr. Bubp as to his authority or ability to simultaneously hold the publicoffices of state representative and a magistrate in a mayor's court;

• records upon which Mr. Bubp relies in order to establish his ability orauthority to simultaneously hold the public offices of state representative anda magistrate in a mayor's court;

Despite the fact that such a request has now been pending for over 2 months, Mr. Bubp has

completely ignored the simple request, electing, instead, to respond neither affirmatively or

negatively to the request. Because Mr. Bubp has failed to comply with numerous obligations

imposed upon him by the Public Records Act, Relator has commenced this original action for the

issuance of a writ of mandamus to compel Mr. Bubp to comply with all of his legal obligations

pursuant to the Public Records Act, together with an award for attorney fees and costs as

authorized by the Act.

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ARGUMENT

PROPOSITION OF LAW No. 1:A Writ of Mandamus is the Proper Remedy for theFailure of a Person Responsible for Public Records or Public Officeto Comply With the Requirements and Mandates f the Public Records Act

A writ of mandamus is the appropriate remedy to compel compliance with the Ohio

Public Records Act. State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cry. Court of

Common Pleas, 73 Ohio St. 3d 19, 12, 652 N.E.2d 179, 183 (1995); State ex rel. Howard v.

Ferreri, 70 Ohio St.3d 587, 593, 639 N.E.2d 1189, 1195 (1994); see also R.C. 149.43(C)("[i]f a

person allegedly is aggrieved by the failure of a public office or the person responsible for public

records to promptly prepare a public record and to make it available to the person for inspection

in accordance with division (B) of this section or by any other failure of a public office or the

person responsible for public records to comply with an obligation in accordance with division

(B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a

judgment that orders the public office or the person responsible for the public record to comply

with division (B) of this section").

A writ of mandamus is warranted when (1) the relator has a clear legal right to the relief

prayed for; (2) the respondent is under a clear legal duty to perform the requested act; and (3) the

relator has no plain and adequate remedy at law. State ex rel. Berger v. McMonagle, 6 Ohio St.

3d 28, 28, 451 N.E.2d 225, 226-27 (1983). "A relator meets those three requirements when a

public office fails to comply with R.C. 149.43(B) requirements for public access to public

records." State ex re. Beacon Journal Pub. Co. v. Bodiker, 134 Ohio App. 3d 415, 420, 731

N.E.2d 245, 249 (1999); see State ex rel. Findlay Pub. Co. v. Schroeder, 76 Ohio St. 3d 580, 582

(1996)("we have held that persons seeking public records pursuant to R.C. 149.43(C) need not

establish the lack of an adequate remedy at law in order to be entitled to a writ of mandamus").

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Gaydosh v. Twinsburg, 93 Ohio St.3d 576, 580, 757 N.E.2d 357 (2001)("the requirement of the

lack of an adequate legal remedy does not apply to public-records cases").

The Ohio Supreme Court has "consistently held that mandamus is the appropriate remedy

to seek compliance with the Public Records Act under R.C 149.43." State ex rel Highlander v.

Rudduck, 103 Ohio St. 370, 383, 816 N.E.2d 213, 216, 2004-Ohio-4952. As developed below,

Respondent Bubp has failed to comply with his legal obligations pursuant to the Public Records

Act. As such, this mandamus action is the proper course of action and remedy to compel

Respondent Bubp to comply with his legal obligations under the Act.

PROPOSITION OF LAW No. 2:When a Public Office or Person Responsible for Public Records Fails to RespondWhatsoever to a Public Records Request After a Reasonable Period of Time, SuchFailure to Respond is Effectively the Same as a Denial of the Request

PROPOSITION OF LAW No. 3:When a Public Office or Person Responsible for Public Records Denies a PublicRecords Request, the Public Office or Person Responsible for the Public RecordsMust Provide an Explanation Including Legal Authority for the Denial and, Upon

the Failure of the Public Office or Person Responsible to Do So, a Writ of Mandamus

Shall Issue

PROPOSITION OF LAW No. 4:When a Public Office or Person Responsible for Public Records Denies a PublicRecords Request That was Submitted in Writing, the Explanation Including Legal

Authority for the Denial Must Also Be Tendered in Writing and, Upon the Failure ofthe Public Office or Person Responsible to Do So, a Writ of Mandamus Shall Issue

R.C. § 149.43(B)(1) explicitly imposes the following duties upon public offices and

persons responsible for public records:

... all public records responsive to [a public records] request shall be promptlyprepared and made available for inspection to any person at all reasonable timesduring regular business hours . . .... a public office or person responsible for public records shall make copies ofthe requested public record available at cost and within a reasonable period of

time.. . .

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And R.C. § 149.43(B)(3) imposed additional duties when a public records request is denied, in

whole or in part:

the public office or the person responsible for the requested public record shallprovide the requester with an explanation, including legal authority, setting forthwhy the request was denied

[i]f the initial request was provided in writing, the explanation also shall beprovided to the requester in writing.

Thus, by the explicit language of the Public Records Act, in denying a public records request, the

public office or person responsible for the public records has the legal duty and obligation: (i) to

provide an explanation for the denial; and (ii) to include legal authority supporting the denial.

Furtherniore, when the request was submitted in writing, such an explanation with legal authority

must also be tendered in writing.

In this case, not only has Mr. Bubp failed to provide an explanation with legal authority

for his non-response, i.e., denial, of Relator's public records request, let alone one in writing,

they have failed to provide any response whatsoever despite the requirements of the Public

Recnrds Act.3 In order to compel Mr. Bubp to comply with his legal obligations under the

Public Records Act, a writ of mandamus should issue forthwith.

3 As a member of the Ohio General Assembly, Respondent Bubp "is a public official

subject to R.C. 149.43." State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 394 894 N.E.2d

686, 689, 2008-Ohio-4788 ¶15. And in that capacity, Mr. Bubp has reportedly received somewritten advice from the Joint Legislative Ethics Committee concerning his ability tosimultaneously serve as a state representative and a mayor's court magistrate. See R.C. §

101.34(A)("[t]here is hereby created a joint legislative ethics committee to serve the generalassembly"); R.C. § 101.34(A) ("[t]he joint legislative ethics committee ...(8) [s]hall act as anadvisory body to the general assembly and to individual members, candidates, and employees onquestions relating to ethics, possible conflicts of interest, and financial disclosure"). Foraccording to the news report from October 2009, Mr. Bubp indicated that he had received anopinion from the Joint Legislative Ethics Committee declaring that it was permissible for him tosimultaneously serve as a state representative and a mayor's court magistrate.

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As a member of the Ohio General Assembly, Respondent Bubp "is a public official

subject to R.C. 149.43." State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 394 894 N.E.2d

686, 689, 2008-Ohio-4788 ¶15. And in that capacity, Mr. Bubp has reportedly received some

written advice from the Joint Legislative Ethics Committee or the Legislative Inspector General

concerning his ability to simultaneously serve as a state representative and a mayor's court

magistrate. See R.C. § 101.34(A)("[t]here is hereby created a joint legislative ethics committee

to serve the general assembly"); R.C. § 101.34(A) ("[t]he joint legislative ethics committee ...

(8) [s]hall act as an advisory body to the general assembly and to individual members,

candidates, and employees on questions relating to ethics, possible conflicts of interest, and

financial disclosure"). For according to the news report from October 2009, Mr. Bubp indicated

that he had received an opinion from the Joint Legislative Ethics Committee declaring that it was

permissible for him to simultaneously serve as a state representative and a mayor's court

magistrate. Yet this record nor any other record responsive to the Public Records Request Letter

has been provided by Mr. Bubp.

Accordingly, and at a minimum, Relator, on relation to and on behalf of the State of

Ohio, is entitled to the issuance of a peremptory writ of mandamus or, alternatively, an

alternative writ of mandamus, compelling Mr. Bubp (i) to produce copies of those public records

which have been withhold or not produced pursuant to the Public Records Request Letter; and

(ii) to provide a written response to the Public Records Request Letter if the request is being

rther denied (including legal authority for any such denial).4fu

4 Relator also claims entitlement to an award of statutory damages, attorney fees andcosts. As this memorandum is being tendered simply in support of the complaint for a writ ofmandamus, the foregoing simply and summarily addresses the propriety of the issuance of therequested writ. The basis for the other aspects of the claims in this case are set forth in theVerified Complaint and, if necessary, will be addressed after resolution of whether a writ will

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Cun\C.M-artihhn (006424The w Firm of Curt C. Hartman3749 Fox Point CourtAmelia, Ohio 45102(513) 752-8800hartmanlawfirm@fuse.net

Attorneys for Relator Kent Lanham

issue. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200 (1988)("we think itindisputable that a claim for attorney's fees is not part of the merits of the action to which thefees pertain").

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