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11th District judge tells concurring judge she “lacks judicial temperament”
TRACEY BLAIR
Legal News Reporter
Published: October 22, 2018
The Franklin Township Board of Trustees’ decision not to rezone Portage County property for low-income student housing was not discrimination, the 11th District Court of Appeals ruled recently in a majority decision.
However, in an unusual move, two of the voting appellate judges exchanged insults while deciding the case.
The case is Burnett Road Associates, LLC v. Franklin Twp., 2018-Ohio-3842.
Burnett appealed the Portage County Common Pleas Court’s judgment affirming the trustees’ decision to deny its parent company’s application to rezone three parcels of property at the edge of Franklin Township to medium density residential.
In April 2016, the rezoning attempt failed in a 2-1 vote.
Burnett argued the trustees were acting in a discriminatory manner by denying Section 8 housing, and that the trial court erred by finding a conflict between local and state law.
Richland Residential, the parent company, argued that the unanimous vote of the board was required for denial. However, the board stated the majority vote was sufficient to deny the permit application, citing R.C. 519.12(H).
Burnett said Franklin Township’s law and the Revised Code’s law on zoning votes do not conflict. The local law states that a unanimous vote rejects an amendment, while state law provides that the majority vote is sufficient.
Franklin Township claimed the local regulation is unlawful, thus the trial court did not err in awarding summary judgment in their favor.
“Here, Franklin Township enacted zoning regulations,” 11th District Judge Cynthia Westcott Rice wrote in her 3-0 opinion. “And the regulation at issue is more restrictive than the statutory procedure, requiring a unanimous vote of the trustees to deny a recommendation of the zoning commission. At issue is whether this regulation is enforceable in light of R.C. 519.12(H), which requires merely a majority of the trustees to deny such a recommendation. We hold it is not.”
Citing Mac Realty v. Comm. Indus. Enterprises (10 Ohio St.2d 227), Judge Rice’s opinion determined the trial court did not err by granting summary judgment, and that the permit denial was not discriminatory.
Appellate judges Thomas R. Wright and Diane V. Grendell concurred.
However, that is where the agreement between judges Rice and Grendell ended.
“The concurring judge, while apparently agreeing with the above analysis, uses this case as a platform to erroneously accuse this writer of inconsistently defining the word `shall,’ “ Judge Rice wrote. “In State ex rel. Flaiz v. MERSCORP, 11th Dist. Geauga No. 2016-G-0079, 2017-Ohio-7126, this court, construing Ohio’s recording statutes, determined the word `shall’ related to the mandatory location where a holder of a mortgage or assignment must record the instrument to protect his or her interests. The issue in that case, therefore, was not the definition of the word `shall,’ but the actions to which the word applied. This court held that `shall’ was not a mandate to record, but instead, if one elects to record, a mandate regarding where one records. The concurrent judge’s mischaracterization of the foregoing demonstrates either a lack of judicial temperament, an inability to grasp a relatively straightforward analysis, or both.
“Regardless, the concurring judge’s harangue is nothing more than an inaccurate surplusage that has no meaningful impact on the instant appeal. See also Filby v. Filby, 11th Dist. Geauga No. 2017-G-0142, 2018-Ohio-907 (concurring judge files essentially the same concurring opinion in a case where her observations were equally irrelevant and unnecessarily ill-tempered.”
Judge Grendell concurred in the Burnett case in judgment only with a concurring opinion.
She stated she wrote separately because the appellate court has not been consistent in its interpretation and application of the word `shall.’
“As I explained in Flaiz, the majority’s decision to hold that `shall’ does not really mean `shall,’ but rather means `may,’ was an `Alice Through the Looking Glass’ interpretation of the English language that will cause confusion when considering the many statutes that use the term `shall,’ “ Judge Grendell said in her concurring opinion. “That serious concern has now come to fruition. Given the opinion here, it is necessary that, going forward, this court recognize the correct mandatory meaning of this term and use it appropriately in future decisions. It is critical for this court to maintain consistency in its decisions, to provide guidance to appellants and attorneys.
“The writing judge is mistaken. Pointing out the inconsistencies in our court’s decisions is not `ill-tempered,’ `surplusage,’ or a `harangue.’ It is our judicial duty as appellate judges.
“The writing judge’s failure to comprehend the serious implication of the majority’s contradictory definitions of the word `shall’ in this case versus the decision in Flaiz reflects judicial obstinance. It is inescapable that in Flaiz the majority held that the verb `shall’ no longer meant a mandatory directive. Trying to now recast that decision or misdirect attention to the issue by insulting a fellow appellate judge will not change the unfortunate import of that ruling.”
Judge Grendell added, “Nothing written above should be construed as impugning this writing judge’s judicial temperament or ability to grasp relatively straightforward analysis as such ad hominem attacks by the writing judge, are neither appropriate nor relevant to the legal issues under consideration. It should be recognized that judges, in the performance of their duties as judges, may reach different conclusions given the same set of facts. No amount of vitriol or personal invective changes what was decided in Flaiz and what is decided herein.”