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Published: Wednesday, 8/8/2007

Judge asserts Seneca County officials have right to raze

BY JENNIFER FEEHAN
BLADE STAFF WRITER
Visiting Judge Charles Wittenberg said it is not in the court s power to interfere with the commissioners  decisions.
Visiting Judge Charles Wittenberg said it is not in the court s power to interfere with the commissioners decisions.
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TIFFIN Visiting Judge Charles Wittenberg yesterday dismissed two of the claims levied against Seneca County commissioners in a lawsuit aimed at stopping them from razing the 1884 courthouse.

In a nine-page decision filed in Seneca County Common Pleas Court, Judge Wittenberg said commissioners have authority to demolish the courthouse, and that it was not within the court s power to interfere with their decision-making.

Testimony is to resume at 9 a.m. today on the remaining claims, which include allegations that commissioners violated Ohio s public meeting and public records laws in reaching their decision to tear down the old courthouse.

The plaintiffs, six Seneca County residents who want to see the courthouse preserved and renovated, allege commissioners breached their fiduciary duty by failing to obtain and consider expert advice and information and explore all options before deciding to spend county funds to raze the old courthouse and build a new one. Judge Wittenberg, a retired Lucas County Common Pleas Court judge, said that was not for the court to decide.

The commissioners were elected to make difficult decisions, and it is up to them to determine which information they should consider, he wrote.

Unless the defendants have violated the constitution or a statutory mandate, courts are without power to interfere with the legislative process as well as with the authority and discretion of elected public officials. Commissioners must be allowed to do their job without fear of lawsuits and judicial oversight.

The plaintiffs also claimed the state legislature did not give commissioners the authority to tear down the courthouse because state law does not use words like demolish or raze when outlining powers related to courthouses.

Judge Wittenberg disagreed on that count as well.

If a courthouse is not further needed, it follows that within defendants grant of authority must be the power to demolish the building, especially where defendants are expressly given discretion to rebuild, as they have elected to do so in this case, the judge wrote.

Otherwise, obsolete county buildings, including jails, county offices, and county homes, could never be replaced. Certainly, this was not the intent of the legislature.

Tiffin attorney John Barga, who is representing the plaintiffs, said he was disappointed with yesterday s ruling, but remained optimistic about the case.

A fair hearing is what we asked for, and the judge has been very fair, he said.

Seneca County Prosecutor Ken Egbert, Jr., was pleased with the decision.

We have maintained all along that these dismissed claims were legally insufficient for purposes of the requested temporary restraining order and injunction, Mr. Egbert said.

We are pleased the court recognized this with the dismissal ruling and look forward to litigating the relevant, remaining claims.

Mr. Barga said he would continue to call witnesses in an attempt to show that commissioners made decisions at public meetings that were based on deliberations conducted outside public meetings and that the board failed to keep a complete record of its proceedings and did not read or have a paper copy of the previous meeting s minutes for commissioners to sign and approve.

Contact Jennifer Feehan at: jfeehan@theblade.com or 419-353-5972.



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