Dayton activist, former congressional candidate and citizen journalist David Esrati filed a jurisdictional appeal with the Supreme Court of Ohio today, asking the state’s highest court to decide whether citizens have any meaningful way to enforce the Ohio Constitution’s requirement that public officials convicted of certain offenses be removed from office.
The appeal challenges a ruling by the Second District Court of Appeals, which dismissed Esrati’s earlier quo warranto action seeking to remove Montgomery County Clerk of Courts Mike Foley from office after Foley entered no-contest pleas in June to unauthorized use of a computer and solicitation of political contributions from public employees. Sentencing was entered the same day.
Under Article II, Section 38 of the Ohio Constitution, any public official convicted of misconduct “shall” be removed from office. Ohio law does not provide a clear process for citizens to initiate removal if prosecutors decline to act. The appellate court held that only the Attorney General, a county prosecutor, or someone claiming entitlement to the office may bring a quo warranto action.
Esrati argues that the combination of strict standing rules and inaction by officials leaves citizens without any remedy to enforce the Constitution. He also notes that Foley continued to serve for months after his conviction and sentencing, signing public statements on county letterhead and exercising the authority of his office while his criminal case was still unresolved.
The Supreme Court previously initiated a separate statutory process under R.C. 3.16, appointing a three-judge special commission to consider whether Foley should be suspended after his indictment. The commission did not issue a suspension.
In his filing, Esrati asks the Court to accept the appeal and clarify whether Article II, Section 38 requires an enforcement mechanism the public can access when all authorized officials are conflicted or decline to act.
Esrati served notice of the filing to Foley’s attorney, Jon Paul Rion, and to special prosecutor Thomas Anger. The Supreme Court will now decide whether to accept the case for full review.
Foley heads to Court on Monday Dec 8, 2025 to face the 5 remaining charges from his original 12 count indictment that also implicated former judge James Piergies. The same prosecutor and judge who entered and then exited a plea deal struck for Foley to plead no-contest on just 2 of the 12 charges in June will continue in this case, despite their defective illegal plea deal which illegally promised Foley “No Collateral Damages.” The reversal of the plea deal by these actors without proof of Manifest Injustice was a travesty to the rule of law and over 200 years of precedent.
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