[Cite as State ex rel. Hemmons v. Cuyahoga Cty. Bd. of Elections, 2023-Ohio-1148.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, EX REL., 

WILLA HEMMONS, :

Relator, :

No. 112403

v. :

CUYAHOGA COUNTY BOARD

OF ELECTIONS, ET AL., :

Respondents. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED

DATED: April 4, 2023

Writ of Procedendo

Order No. 563279

Appearances:

Willa M. Hemmons, pro se. 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Mark R. Musson, Assistant Prosecuting 

Attorney, for respondents. 

EILEEN T. GALLAGHER, J.:

On February 14, 2023, the relator, Willa Hemmons, commenced this 

writ action against the respondents the Cuyahoga County Board of Elections and its 
board members, Jeff Hastings, Imajo Chappell, Terrence McCafferty, and Lisa 

Stickan (“the Board”). The gravamen of this action is to compel the Board to 

schedule a special recall election for three city of East Cleveland council members, 

Korean Stevenson, Patricia Blochowiak, and Juanita Gowdy. The specific claims 

stated in the complaint are for (1) declaratory judgment that the Board violated 

Hemmons’s due process rights under the Ohio and United States Constitutions, (2) 

a Title 42 United States Code § 1983 claim for deprivation of equal protection and 

selective enforcement, and (3) a § 1983 claim for deprivation of substantive and 

procedural due process. Hemmons claims that she is seeking a writ of procedendo 

to have the Board schedule the recall election. She further seeks to have this court 

declare that the recall petitions are valid and that the Board erred in denying the 

signatures of over a thousand registered voters to have recall elections for the three 

council members. In paragraph 41, she includes the sentence: “a writ of mandamus 

is appropriate.” 

This court set a briefing schedule ordering the parties to submit 

evidence and briefs by March 3, 2023, and reply briefs by March 10, 2023. The 

parties have complied with the order and have also filed notice of the outcome of 

ancillary litigation. This court has reviewed the filings, the evidence, the briefs, and 

the decision resolving the ancillary litigation, State ex rel. Richardson v. Gowdy,

Slip Opinion No. 2023-Ohio-976. This case is ripe for resolution.
Factual and Procedural Background

The city of East Cleveland is a charter municipality, and Charter 

Sections 49 through 54 govern recall elections. The recall procedure is started by a 

qualified elector of the city obtaining from the Clerk of Council blank recall petitions. 

The elector must make and submit to the Clerk of Council an affidavit stating the 

name of the council member whose removal is sought. Upon issuing the petitions, 

the Clerk of Council shall record the name of the elector to whom the petitions were 

issued and the date of issuance. In order for the recall election to be held, the 

petition must be signed by East Cleveland electors who voted in the last regular 

election of each municipal officer whose recall is sought, equal in number to at least 

25 percent of the total number voting at the last regular election of each such 

municipal officer in which his or her office was contested. 

Upon obtaining sufficient signatures within 30 days, the elector must 

file the petition with the Clerk of Council, who must then certify upon the petition 

whether the signatures amount to at least 25 percent of the voters voting in the last 

regular municipal election of officers. If sufficient valid signatures are obtained, 

then the Clerk of Council must notify the subject council member and deliver to the 

election authorities a copy of the original petition with the certificate that the 

petition has at least 25 percent of the voters voting in the last municipal election, i.e., 

that it is a valid recall petition. If the subject council member does not resign within 

five days of being presented with the recall petition, the Clerk of Council shall notify 

the elections authorities of the fact, and the election authorities shall forthwith 
schedule the recall election. Such election shall be held not less than 60 days nor 

more than 90 days after the expiration of the five-day period.

Charter Section 111.03(a) provides that the President of Council shall 

appoint and/or terminate the Clerk of Council, and Council may also elect such other 

officers and employees of Council, as it deems necessary. Subsection (b) provides 

that an assistant Clerk of Council may also be appointed in the same manner as 

specified in subsection (a). Subsection (c) allows Council to appoint a Clerk Pro 

Tempore or Deputy Clerk, in the absence of the Clerk upon such terms and 

conditions as Council may determine.

On December 21, 2022, Clerk of Council Tracy Udrija-Peters issued 

blank recall petitions to electors seeking to recall the three council members. On 

January 3, 2023, the East Cleveland City Council elected Korean Stevenson as 

Council president, and he terminated Udrija-Peters as Clerk of Council and the 

Deputy Clerk of Council. This left the Council without a clerk. On January 4, 2023, 

Council Member Nathaniel Martin solely on his own initiative named Law Director 

Willa Hemmons as temporary Clerk of Council. This appointment was ineffective 

because it was contrary to the Charter provisions.

On January 20, 2023, Hemmons accepted the recall petitions. She 

reviewed the petitions for valid signatures and certified that the three petitions had 

a sufficient number of valid signatures to hold a recall election. She so notified the 

three subject council members pursuant to the requirements of the charter and 

submitted the petitions to the Board of Elections along with her certification that 
there were sufficient, valid signatures, so that the Board should schedule the recall 

elections.

On February 13, 2023, the Board of Elections conducted a hearing on 

whether it should schedule the recall elections. During the hearing, Hemmons 

admitted that she was not the Clerk of Council. (Tr. 5.) Accordingly, the Board of 

Elections did not schedule the recall elections, because the recall petitions were not 

processed and presented as required by the East Cleveland Charter. Hemmons then 

commenced this action.

Legal Analysis

This court first notes that the specific claims Hemmons avers to are not 

appropriate. Her first claim is for a declaratory judgment that the Board of 

Elections’ selective action is unconstitutional as applied as alleged in the complaint. 

However, this court does not have jurisdiction to issue such declaratory judgments. 

State ex rel. Hogan v. Ghee, 85 Ohio St.3d 150, 707 N.E.2d 494 (1999), and State 

ex rel. Williams v. Trim, 145 Ohio St.3d 204, 2015-Ohio-3372, 48 N.E.2d 501. 

Similarly, this court has original jurisdiction only over the five extraordinary writs. 

It does not have jurisdiction to adjudicate § 1983 actions. State ex rel. Rodgers v. 

Corrigan, 8th Dist. Cuyahoga No. 55503, 1988 Ohio App. LEXIS 4993 (Dec. 5, 

1988).

The claim for procedendo is also problematic. The writ of procedendo 

is merely an order from a court of superior jurisdiction to one of inferior jurisdiction 

to proceed to judgment. Yee v. Erie Cty. Sheriff’s Dept., 51 Ohio St.3d 43, 553 N.E.2d 
1354 (1990). Procedendo is appropriate when a court has either refused to render a 

judgment or has unnecessarily delayed proceeding to judgment. State ex rel.

Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 696 N.E.2d 1079 

(1998). However, the writ will not issue to control what the judgment should be, nor 

will it issue for the purpose of controlling or interfering with ordinary court 

procedure. Thus, procedendo will not lie to control the exercise of judicial 

discretion. In the present matter, even assuming that the Board of Elections was 

exercising judicial power at the February 13, 2023 hearing, it has already reached a 

decision. 

Viewing Hemmons’s complaint in a favorable light, she does plead 

mandamus. The requisites for mandamus are well established (1) the relator must 

have a clear legal right to the requested relief, (2) the respondent must have a clear 

legal duty to perform the requested relief, and (3) there must be no adequate remedy 

at law. State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978). A 

relator must establish the elements for mandamus by clear and convincing evidence. 

State ex rel. King v. Cuyahoga Cty. Bd. of Elections, Slip Opinion No. 2022-Ohio3613. Against a board of elections, the first two elements require a court to 

determine whether the board engaged in fraud, corruption, or abuse of discretion or 

acted in clear disregard of applicable law. Id. Mandamus is an extraordinary 

remedy thatis to be exercised with caution and only when the right is clear. It should 

not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 

N.E.2d 1 (1977). 
The East Cleveland Charter requires the Clerk of Council to certify the 

sufficiency of the recall petitions and issue certificates of the petitions’ sufficiency to 

the Board of Elections. The Clerk of Council did not perform those functions. Willa 

Hemmons was not the Clerk of Council and could not perform them. The Board of 

Elections did not abuse its discretion in declining to schedule the recall elections 

because the required procedure was not fulfilled. 

Hemmons invokes East Cleveland Charter Section 87, which provides 

that all general laws of Ohio applicable to municipalities and not inconsistent with 

the Charter shall apply to East Cleveland. Thus, she argues that when there is no 

Clerk of Council, R.C. 7o5.92 becomes the default provision for recall elections in 

East Cleveland and requires the Board of Elections to schedule those elections. The 

Supreme Court of Ohio rejected this argument in State ex rel. Richardson v. Gowdy,

Slip Opinion No. 2023-Ohio-976.

Hemmons’s final argument is that Stevenson obstructed the electoral 

process by firing the Clerk of Council and the Deputy Clerk of Council. She continues 

that the three subject council members then further obstructed the electoral process 

by failing to appoint a new Clerk of Council. Hemmons concludes that because the 

recall petitions have a sufficient number of signatures, the Board is collaborating

with the obstruction and abuses its discretion by failing to schedule the recall 

elections. 

This argument was presented to the Ohio Supreme Court in 

Richardson, that the circumstances of this case warrant bypassing the clerk’s duty 
under the charter and permitting the Board of Elections to certify the sufficiency of 

the petitions and to schedule the recall elections. The Supreme Court rejected this 

argument by ruling that the Board did not have the duty to certify the petitions. The 

Court also noted that a new Council President in March 2023, appointed a new Clerk 

of Council and instructed the clerk to make the recall petitions the top priority. It 

was not an abuse of discretion for the Board of Elections not to disregard the stated 

law and proceed on what some may think was a just course of its own making. 

Accordingly, this court denies the application for an extraordinary 

writ. Relator to pay costs. This court directs the clerk of courts to serve all parties 

notice of the judgment and its date of entry upon the journal as required by Civ.R. 

58(B).

Writ denied.

_________________________

EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and 

MARY EILEEN KILBANE, J., CONCUR