In Inside Courts, retired judge Tom Hodson explains the complexities of the law and legal cases, helping you understand what’s at stake — and how it affects you.
Remember the childhood game of “hot potato,” when children got in a circle and passed a beanbag or sometimes a raw potato around while music played? If you were holding the potato when the music stopped, you were out and the game continued until the last child was standing. That lone child was the winner.
Well, that’s the way I envision litigation concerning whether Nelsonville is to be governed by a charter government or a statutory one. There have been multiple cases in multiple courts, and nobody wants to hold the case long enough to make a final decision.
Pass the hot potato on to another court.
So far, the issue has been before the Ohio Supreme Court, the Athens County Court of Common Pleas, the Fourth District Court of Appeals and the United States District Court for the Southern District of Ohio. Still, the form of government that should prevail is undecided.
Most recently, the Fourth District Appellate Court decided it did not have jurisdiction to decide the issue. I understand that the statutory group will appeal that decision back to the Ohio Supreme Court for another look.
Let’s examine that case first and then look at where things may go from here.
Fourth District Court’s most recent decision
On June 10, the court of appeals denied a request by statutory mayor Johnny Flowers and other statutory officers to issue a writ of quo warranto saying that relators (plaintiffs) needed to have a “declaratory judgment” ruling from a lower court first before the appellate court could act. Therefore, the court said it did not have jurisdiction to decide the case.
(Pass that hot potato to the next court….)
The court’s ruling sounds like legal gibberish to many, but let me try to break it down.
The statutory mayor and some other statutory officers who were elected in November 2025 tried to get the court of appeals to rule that they were the rightful governmental officers and should take power.
They used a procedure called quo warranto, which could be filed directly with the court of appeals. Quo warranto is asking the court to order that someone is illegally holding a public office and to remove that person from that office.
The statutory group wanted the court to remove the charter officers, who will not vacate their positions or city hall.
In November 2024, Nelsonville voters passed a ballot issue, Issue 23, to abolish the city charter and instead to elect statutory officers to take office on Jan. 1, 2026.
However, on August 11, 2025, the charter city council passed Ordinance 54-25 allegedly repealing Issue 23 and purportedly abolishing the need for candidates to run for those offices.
The statutory folks think the charter government is sitting illegally but so far, no court has thrown them out of office. Hence, the quo warranto lawsuit in the court of appeals filed by former Nelsonville City Law Director Garry Hunter, asked the court to do just that.
The Court of Appeals’ unanimous 3-0 decision carved out some new law. I believe that both the relators (statutory) and the respondents (charter) wanted the court to ultimately decide who should be in power. But that didn’t happen.
In its 17-page opinion, the court meticulously outlined the factual and procedural history of the case. It characterized each argument made by both sides and sized up who were the proper parties to the litigation.
It analyzed legal assertions by the plaintiff and what defenses by the respondents might resonate with the court.
The court pared down who should be remaining parties to the case after dismissing claims for various procedural reasons against city manager Danette Miller, former acting city manager Devon Tolliver, purported auditor Nick Smith and statutory council members at-large Nicole Joseph Saul and McCary Powell.
The court concluded:
“That leaves quo warranto claims asserted by (1) Johnathan Flower against Cameron Peck for the office of mayor, (2) Daniel Sherman against Cameron Peck for the office of president of council, (3) the five statutory members at large (Bishop, Henderson, J. Hollenbaugh, Glenn Smith, and C. Powell) against the five charter members at large (Peck, Clement, Sonick, A. Hollenbaugh, and Beach.)”
In the first 15 pages of the decision, it appeared that the court was going to finally decide who in Nelsonville is in charge. But, then in the last two pages things changed drastically. (Toss that hot potato.)
The “toss” starts with this quote from page 16:
“The official election results from the November 2025 election, the subsequent certificates of elections issued by the board of elections, and the official oaths of office all establish beyond doubt that the relators are entitled to hold their respective public offices. However, the question of whether the charter office holders are unlawfully holding office depends on whether Ordinance 54-25 is procedurally and/or constitutionally invalid. Thus, the relators ask this court to declare that Ordinance 54-25 is invalid.”
The court then completed the toss by saying that it did not have jurisdiction to declare the ordinance valid or invalid. It says that a Common Pleas court needs to make that determination in a declaratory judgment action (declaring an action legally valid or invalid).
The court then added its own “post-toss” analysis, saying:
“Because we lack original jurisdiction to issue declaratory judgments, we have no jurisdiction to declare Ordinance 54-25 unconstitutional or otherwise invalid. Because we lack jurisdiction to issue a declaratory judgment that Ordinance 54-25 is invalid and that is the only ground by which relators challenge respondent’s entitlement to office, the relators have not shown that the respondents hold the office unlawfully.”
So, in short, the court decided that a declaratory judgment by the common pleas court on Ordinance 54-25 is a prerequisite for the Court of Appeals to decide a quo warranto case.
I do not think this “toss” was expected or wanted by either side. They just want some court somewhere to make the decision which city government should be in power.
One can argue that the charter people won this round of court filings, but an official winner has not been determined.
The real question, however, is what’s next?
Attorney options
The statutory folks (relators) through attorney Hunter have two options now.
One, they could file a new case in common pleas court with all the proper parties and ask the court for a declaratory judgment on the validity and/or constitutionality of Ordinance 54-25 repealing the statutory initiative.
This would probably take several more months if not longer to hash out.
If they would win that common pleas case, then they could go back to the court of appeals for a quo warranto order.
Secondly, the relators could file an appeal with the Supreme Court of Ohio to review the decision of the court of appeals.
I talked with Garry Hunter, attorney for the statutory folks, and he said he will not file a new declaratory action case in common pleas court but instead will file an appeal with the Supreme Court.
He has 45 days from June 10 to do so, Hunter says. That would make the deadline for filing with the Supreme Court July 27 (the actual 45-day falls on a weekend so the deadline is extended to the next working day.)
Normally, the Ohio Supreme Court can pick and choose what cases it wants to hear and decide. However, it is anticipated that Hunter will argue that the Supreme Court has no choice but to take this case. It is called an appeal-as-of-right.
Translated, that means that since the Court of Appeals had original jurisdiction in this matter, and every loser in a civil case has a right to one appeal, then the Supreme Court is the required next step for appealing. The Supreme Court has no choice but to take the case.
It also is anticipated that Hunter will argue that a declaratory judgment is not required for a Court of Appeals to decide who should be in office. I think he will argue that the Court of Appeals made a mistake in requiring a prerequisite ruling on the validity of Ordinance 54-25 by a lower court.
Meanwhile, attorney Jonathan Robe, representing the charter folks, is sitting back and waiting until something is filed before he responds.
Currently, his clients are still holding office even though the statutory officials also have been meeting separately.
Ohio Supreme Court options
Once the case arrives at the Supreme Court, the court will have three options.
The court could affirm the Court of Appeals decision, meaning that it agrees the appeals court has no jurisdiction and needs a declaratory judgment from the common pleas court before the appellate court can issue a quo warranto order.
The court could reverse the decision of the Court of Appeals. In this case, the court could find that the appellate court was wrong about the jurisdiction issue and find there was sufficient evidence to decide for either the charter or statutory office holders. The Supreme Court could make the final decision based on that evidence.
Finally, the court could reverse the appellate court’s ruling on jurisdiction and remand (send back) the case to the Court of Appeals to decide the issues surrounding the validity and constitutionality of Ordinance 54-25.
Meanwhile, the dual city governments continue to operate separately, and the Nelsonville saga continues.
As the children say as they play the game: “Hot potato, one, two, three! Pass it quickly, not to me!”
