The Court agreed that a municipal court seat was vacated when the former judge was suspended from the practice of law.

The Court agreed that a municipal court seat was vacated when the former judge was suspended from the practice of law.

Tiffin City Council was authorized to declare the Tiffin-Fostoria Municipal Court judgeship vacant when former Judge Mark Repp was suspended from the practice of law, the Supreme Court of Ohio ruled today. The election next week to name a new judge can proceed.

In a 4-3 decision, the Supreme Court rejected Repp’s challenge to his replacement on the bench. Repp argued that when his one-year suspension ended in November 2022, he should have been able to return as the judge for the remainder of his six-year term that expires in 2025.

In a per urciam opinion, the Court found that under R.C. 1901.10(B), the city council could legally declare the sole municipal court judge position vacant because Repp was barred from his office for at least six months. Repp argued the law did not apply because he did not voluntarily vacate the position. The Court found the law does not assess the reason for the vacancy, but rather that “it matters only whether the judge was absent from his or her official duties for at least six consecutive months.”

Justices Patrick F. Fischer, Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined the majority opinion.

Chief Justice Sharon L. Kennedy and Justice R. Patrick DeWine issued separate dissenting opinions, explaining that R.C. 1901.10(B) was inconsistent with the Ohio Constitution’s processes for removing a judge. The dissents noted that the constitution permits the General Assembly to enact laws providing for the removal of a judge, but any law enacted under that authority must include the filing of a complaint against the judge and a hearing. Repp should have been allowed to retain his judgeship because the statutory process that the city council followed did not require filing a complaint against Repp or conducting a hearing, the dissents stated.

Justice Joseph T. Deters joined Chief Justice Kennedy’s dissent, and the chief justice and Justice Deters joined Justice DeWine’s opinion.

Suspension Led to Municipal Court Judge Replacement
Repp was elected in 2019 to a six-year term as Tiffin-Fostoria Municipal Court judge. The court has only one judge. In November 2021, The Supreme Court suspended Repp from the practice of law for one year and suspended him from his judicial office without pay for the duration of the suspension. Other judges were assigned to temporarily serve on the municipal court bench through November 2022.

Midway through Repp’s suspension, Tiffin City Council in June 2022 passed an ordinance declaring the municipal court judgeship vacant because Repp had been absent from his official duties for more than six months. Once the post was declared vacant, Gov. Mike DeWine appointed Rhonda Best to fill the vacancy in November 2022. That same month, Repp was reinstated to the practice of law.

Repp then requested a writ of quo warranto from the Supreme Court to remove Best from office. He filed other motions to regain the office and serve the remainder of his term.

In response to Repp, the Court directed the parties to submit briefs addressing whether an absence from office as a result of a suspension from the practice of law constitutes a “vacancy” under R.C. 1901.10, and how that law works in conjunction with removal procedures in the Ohio Constitution and the statutory removal procedures in R.C. 3.07 through R.C. 3.10.

Supreme Court Analyzed Vacancy Law
The Court noted that for Repp to be entitled to a writ of quo warranto, he must show that Best is unlawfully holding the office and that he is entitled to be the judge.

The opinion explained that R.C. 1901.10(B) states a vacancy in the office of municipal court judge exists “upon the death, resignation, forfeiture, removal from office, or absence from official duties for a period of six consecutive months.” The vacancy must be “determined and declared by the legislative authority,” and the parties agreed that Tiffin City Council is the appropriate legislative authority to declare a vacancy.

Repp argued that the law does not apply because it does not expressly state that vacancy may arise when a judge is unavailable because of suspension. Repp referenced R.C. 1901.121(A)(1), which states that if a municipal judge is “incapacitated or unavailable due to disqualification, suspension, or recusal,” the Supreme Court chief justice may assign a sitting judge to serve temporarily.

He maintained that the law indicates a difference between a vacancy and unavailability due to his suspension. He argued he did not vacate the office when he was unavailable because of his suspension.

The Court noted that being unavailable does not always lead to vacating the office. A judge could be unavailable for certain amounts of time, but not meet the standard under R.C. 1901.10(B). Repp was “persistently unavailable” for more than six consecutive months, which caused a vacancy in the judicial office, the opinion stated.

Under the law, once the council declared the office vacant, then the governor was authorized under the Ohio Constitution to appoint Best to fill the vacancy, the Court ruled.

Court Rejected Claim That Judge Was ‘Removed’ From Office
In addition to arguing that he did not vacate the office, Repp maintained that the city council “removed” him from office without following the procedures in Ohio law and the state constitution. The Court majority ruled that Repp was not removed from office and that “remove” means to force one to “leave a place or to go away.”

“The city council did not find that Repp had engaged in wrongdoing or force him out of office,” the opinion stated.

Rather, the council just declared the office vacant. Because he was absent, the procedures in the constitution governing removal do not apply, the opinion stated.

“There are several ways that a judicial office may become vacant – some by the judge’s choice, some not. Under the statute, when the judge has been absent from his or her official duties for six consecutive months, a vacancy in the judicial office exists. The reason for the judge’s absence does not matter,” the Court stated.

Constitution Established Judicial Removal Process, Dissent Maintained
In his dissent, Justice DeWine wrote that the Ohio Constitution establishes three methods for the removal of judges from office.

First, under Article II, Sections 23 and 24, a judge may be impeached by the Ohio General Assembly. Second, Article IV, Section 17 allows the General Assembly to pass a concurrent resolution by a two-thirds vote of each house, to remove a judge from office. That process requires a complaint to be filed against the judge, and the judge is provided with “notice of the complaint and an opportunity to be heard.”

Third, Article II, Section 38 allows the legislature to adopt laws for the prompt removal of public officials, including judges, from office “upon complaint and hearing.” The General Assembly enacted R.C. 3.07 through R.C 3.10 to remove a public officer. Those laws require the removal proceedings to begin in common pleas court through a complaint signed by at least 15 percent of the qualified voters in the area where the judge holds office.

The dissent noted that Tiffin did not use any of the three procedures to remove Repp and “[w]hen the Constitution charts a course that must be followed, the legislature cannot simply create an alternative one.” R.C. 1901.10(B) does not provide authority to remove a judge. It only explains how to move forward once the office has been forfeited or the judge was removed through one of the three authorized procedures, the dissent asserted. To do otherwise, it warned, “would elevate the statute above the Constitution”—which is something courts cannot do.

“Thus, R.C. 1901.10(B) provides a mechanism to declare a vacancy once removal has occurred through the constitutional process; it is not a mechanism to sidestep the Constitution,” Justice DeWine concluded.

Complaint and Hearing Essential to Removal Process, Dissent Argued
While joining Justice DeWine’s dissent, Chief Justice Kennedy wrote a separate dissenting opinion to explain that of the three constitutional processes for the removal of a judge, only Article II, Section 38 could have authorized the enactment of R.C. 1901.10(B). But while Section 38 allows the legislature to enact laws to promptly remove a judge from office, that section indicates that the law must require the filing of a complaint and a hearing.

The chief justice noted that by allowing a local government body to declare a judicial office vacant under R.C. 1901.10(B), the state law “essentially provides for the removal of a sitting judge.” She wrote that R.C. 1901.10(B) is not authorized by Section 38’s removal provision because the statute does not require the filing of a complaint against the judge or a hearing before the judgeship is declared vacant and the judge is removed from office. She concluded that Repp was eligible to retake his seat when his suspension ended.

2022-1463. State ex rel. Repp v. Best, Slip Opinion No. 2023-Ohio-3924.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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