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MUSSER v. MORTON

No. 79-3335.

639 F.2d 309 (1981)

Virgil L. MUSSER et al., Plaintiffs-Appellants, v. Gordon MORTON, Auditor of Medina County, Ohio et al., Defendants-Appellees.

United States Court of Appeals, Sixth Circuit.

Decided January 21, 1981.

Attorney(s) appearing for the Case

R. Patrick Riley, Peck, Shaffer & Williams, Cincinnati, Ohio, Theodore M. Rowen, Spengler, Nathanson, Heyman, McCarthy & Durfee, Toledo, Ohio, for plaintiffs-appellants.

James R. Unger, Prosecuting Atty., Stark County, Ohio, Loren E. Souers, Jr., Canton, Ohio, for Bowman.

Stephen M. Gabalac, Prosecuting Atty., William E. Schultz, Akron, Ohio, for Poda.

Richard B. Hauser, Huron County Prosecuting Atty., Norwalk, Ohio, for Reed.

R. David Picken, Madison County Prosecutor, London, Ohio, for Weiner.

Jeffrey R. Ingraham, Asst. Prosecuting Atty. of Mercer County, Ohio, Celina, Ohio, for Timmerman.

Nick Batt, Toledo, Ohio, for Reed, Knick, Roderer, Guth, Rymer, Buskman, Myers, Hall, Slater, Sutton, Shaw, Thomas, Olenick, Couladis, Hoffman, Kunkel, Wright, Frank, Walter, Patterson, Beard, Dixon, Bateson, Kanuckle, Smith, Galvin, Canestrard, Timmerman, and Kinsey.

Stephen A. Wolaver, Asst. Prosecuting Atty., Xenia, Ohio, for Shaw.

Arthur M. Elk, Prosecuting Atty., Ashland, Ohio, for Ryland.

David E. Smith, Asst. Prosecuting Atty., Springfield, Ohio, for Glass.

Peter R. Seibel, Prosecuting Atty. of Defiance County, Ohio, Defiance, Ohio, for Linebrink.

John E. Moyer, Prosecuting Atty. of Erie County, Ohio, William E. Didelius, Sandusky, Ohio, for Schweinfurth.

Roger R. Ingraham, Prosecuting Atty., Medina County, Ohio, Medina, Ohio, Thelma L. White, Auditor of Shelby County, Ohio, Sidney, Ohio, William J. Ahrns, Auditor of Henry County, Ohio, Napoleon, Ohio, Kenneth Bell, Auditor of Columbiana County, Ohio, Lisbon, Ohio, William Krimbell, Auditor of Crawford County, Ohio, Bucyrus, Ohio, James H. Hoover, Auditor of Jackson County, Ohio, Jackson, Ohio, for defendants-appellees.

Before WEICK, and MERRITT, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

MERRITT, Circuit Judge.

Plaintiffs, who are local legislative officials elected or re-elected in 1974 as county commissioners in Ohio, claim that a state constitutional provision that creates a pay differential between them and persons elected or re-elected in 1976 violates their federal equal protection rights. Under the provision they receive less pay than officials elected two years later. They seek the compensation allegedly due them as well as injunctive and...

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