State ex rel. Hillyer v. Tuscarawas Cty. Bd. of Commrs.

[This opinion has been published in Ohio Official Reports at 70 Ohio St.3d 94.]

THE STATE EX REL. HILLYER, JUDGE, APPELLEE AND CROSS-APPELLANT, v.

TUSCARAWAS CTY. BD. OF COMMRS. ET AL., APPELLANTS AND CROSS-

APPELLEES.

[Cite as State ex rel. Hillyer v. Tuscarawas Cty. Bd. of Commrs.,

1994-Ohio-13.]

Mandamus to compel county board of commissioners to pay attorney fees of county

court judge's action against board, to compel board to provide suitable

court facilities for the county court, and to pay the salary of a probation

officer granted, when—Mandamus to compel appropriation of budget

requests for the county court and prevention of board's interference in the

operation of the county court denied, when.

(Nos. 93-473 and 93-634—Submitted April 5, 1994—Decided August 24, 1994.)

APPEAL and CROSS-APPEAL from the Court of Appeals for Tuscarawas County,

No. 92AP090064.

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{¶ 1} The Tuscarawas County Board of Commissioners ("board") and the

Tuscarawas County Auditor, appellants and cross-appellees, appeal from a

judgment by the Tuscarawas County Court of Appeals issuing a writ of mandamus

on the complaint of relator Hudson Hillyer, Judge of the Tuscarawas County Court

and appellee and cross-appellant, which ordered appellants to pay Judge Hillyer's

attorney fees in the action, provide suitable court facilities for the county court, and

pay David L. Blackwell $26,000 per year from September 26, 1991 for his position

as probation officer of the county court. Judge Hillyer cross-appeals from the

judgment of the court of appeals denying a writ of mandamus to compel appellants

to provide reasonable and necessary funds in accordance with the judge's 1992

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order and to cease impairing the daily operations and administration of the

Tuscarawas County Court.

{¶ 2} From 1977 until August 20, 1991, David L. Blackwell served as

probation officer for both the New Philadelphia Municipal Court and the

Tuscarawas County Court. During this period, sixty percent of Blackwell's salary

was paid by New Philadelphia. On August 20, 1991, Blackwell was fired by the

judge of the New Philadelphia Municipal Court for failing to provide certain

records. On August 21, 1991, Judge Hillyer appointed Blackwell to the position of

full-time probation officer of the Tuscarawas County Court and orally informed the

board of the appointment. On September 5, 1991, Judge Hillyer issued an entry

reflecting his appointment of Blackwell and setting his salary at $26,200 per year.

The board compensated Blackwell at the salary set by Judge Hillyer until

September 26, 1991, when it stopped all payments to Blackwell.

{¶ 3} On October 3, 1991, Judge Hillyer issued another judgment entry

directing the board to order the county auditor to pay the salary of Blackwell as

probation officer of the county court. The board did not comply with Judge

Hillyer's orders concerning payment of Blackwell as a full-time probation officer.

According to Judge Hillyer, Blackwell's services as a probation officer were

necessary to continue his efficient judicial administration of criminal cases, because

without Blackwell, he could not order supervised probation. Blackwell supervised

over three hundred persons placed on probation by the county court. Since the

county jail had limited space, placing persons on probation saved the county the

expense of incarcerating convicts in other jails.

{¶ 4} In correspondence in October and November 1991, the board advised

Judge Hillyer that the county court budget had been exhausted, mainly due to the

unwarranted appointment of Blackwell to a full-time position, noted that one

county court deputy clerk should be laid off, and stated that all deputy clerks should

be compensated on an hourly basis and required to fill out time cards. According

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to the county court clerk, one of the county commissioners had advised her in

October 1991 that the board was going to start "administering" the court. As a

result of the board's contact with the court, the full-time court personnel began to

work thirty-seven and a half hours a week instead of the thirty-two hours that they

had previously worked. Despite the board's threats, it did not lay off any county

court deputy clerks, and it funded all of Judge Hillyer's requested court personnel

budget, with the lone exception of Blackwell's salary. Judge Hillyer admitted that

as of 1993, aside from the disputes concerning suitable court facilities and

Blackwell, the board was not interfering with the orderly operation of his court.

{¶ 5} Judge Hillyer testified that the existing county court facilities were

inadequate for several reasons, including the following: (1) it was difficult to

separate opposing witnesses due to limited space, (2) counsel were required to take

their clients outside to discuss confidential matters, (3) the courtroom was too small

to hold all defendants and spectators when he held traffic court, (4) there was no

waiting room for jurors, (5) the court furniture was old and insufficient, (6) there

was no private access from his chambers to the courtroom, (7) there was no jury

room, (8) there was no consultation room for attorneys and clients, and (9) the

facilities did not comply with M.C. Sup.R. 17. The commissioners admitted that

the courtroom facilities were crowded, not very good, and did not comply with

M.C.Sup.R. 17.

{¶ 6} The parties attempted to mediate their dispute, with the aid of the

county prosecutor, but to no avail. On June 2, 1992, Judge Hillyer entered a

judgment which ordered the board to immediately release the funds requested for

operation of the court and to resolve the problems of inadequate space and

intolerable conditions. On September 4, 1992, Judge Hillyer brought this

mandamus action against appellants in the court of appeals. The county prosecutor

filed an answer on behalf of appellants. The board had previously refused to

appropriate funds for Judge Hillyer to obtain independent counsel to file the

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mandamus action. The prosecutor withdrew his representation of appellants and

filed a notice in the court of appeals that he represented none of the parties to the

action.

{¶ 7} On December 17, 1992, the court of appeals issued a writ of

mandamus compelling the board to apply to the Tuscarawas County Court of

Common Pleas pursuant to R.C. 305.14(A) for the appointment of counsel for

Judge Hillyer on terms to be fixed by the common pleas court. The prosecutor

prepared a proposed judgment entry, but the board failed to sign it and instead

submitted its own application in the common pleas court "under protest," requesting

a hearing on the necessity of the appointment of private counsel and other issues.

On January 8, 1993, the court of appeals vacated its prior entry because of the

board's failure to comply with it by seeking "to raise issues [in the common pleas

court] already litigated" in the court of appeals. The court issued an order finding

that Judge Hillyer was entitled to the appointment of independent counsel, who

would be compensated by appellants in an amount not to exceed $12,500 unless

modified by the court.

{¶ 8} The remaining claims were subsequently considered by the court of

appeals and on March 1, 1993, it issued a writ of mandamus which (1) reaffirmed

its prior order by directing appellants to pay Judge Hillyer's attorney fees and costs,

(2) ordered respondents to provide suitable court facilities for the Tuscarawas

County Court consistent with the guidelines set forth in M.C.Sup.R. 17, and (3)

ordered respondents to pay David L. Blackwell $26,000 per year from September

26, 1991 plus interest and to recognize Blackwell as the "duly authorized and

employed probation officer" of Judge Hillyer. The court of appeals further denied

Judge Hillyer's claims for a writ of mandamus ordering appellants to, inter alia,

meet his 1992 budget request and cease interfering with the operations of the

Tuscarawas County Court.

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January Term, 1994

{¶ 9} This cause is before the court upon an appeal and cross-appeal from

the judgment of the court of appeals.

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Richard L. Stephenson and James M. Carrothers, for appellee and cross-

appellant.

Syler, Redinger, Traver & Fox and Thomas W. Fox, for appellants and

cross-appellees.

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Per Curiam.

{¶ 10} Appellants' propositions of law attack the court of appeals' issuance

of a writ of mandamus on the claims of Judge Hillyer for (1) attorney fees, (2)

suitable court facilities, and (3) appropriation of funds for probation officer. In his

cross-appeal, Judge Hillyer asserts that the court of appeals erred in denying his

claims for a writ of mandamus for (1) appropriation of budget requests for the

county court, and (2) prevention of the board's interference in the operation of the

county court.

{¶ 11} In order to be entitled to a writ of mandamus, the relator must

establish (1) that he/she has a clear legal right to the relief prayed for, (2) that

respondent has a clear legal duty to perform the acts, and (3) that relator has no

plain and adequate remedy in the ordinary course of law. State ex rel. Manson v.

Morris (1993), 66 Ohio St.3d 440, 441, 613 N.E.2d 232, 233-234, citing State ex

rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 29, 6 OBR 50, 51, 451 N.E.2d

225, 226. The issue presented in this court is whether the court of appeals, in

granting the writ of mandamus as to some of Judge Hillyer's claims and refusing to

issue the writ of mandamus on Judge Hillyer's remaining claims, committed an

abuse of discretion. State ex rel. Heath v. Ohio State Med. Bd. (1992), 64 Ohio

St.3d 186, 187, 593 N.E.2d 1386, 1387, citing State ex rel. Casey Outdoor

Advertising, Inc. v. Ohio Dept. of Transp. (1991), 61 Ohio St.3d 429, 430, 575

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N.E.2d 181, 183. An abuse of discretion connotes more than an error of law or

judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. Rock v. Cabral (1993), 67 Ohio St.3d 108, 112, 616 N.E.2d 218,

222. "When applying the abuse of discretion standard, a reviewing court is not free

to merely substitute its judgment for that of the trial court." In re Jane Doe 1 (1991),

57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181, 1184.

ATTORNEY FEES

{¶ 12} Appellants contend in their first and second propositions of law that

the court of appeals usurped the authority of the common pleas court by appointing

independent counsel to Judge Hillyer in his mandamus action against appellants

and awarding attorney fees to Judge Hillyer. The court of appeals' March 1, 1993

entry ordered appellants to pay Judge Hillyer's attorney fees but gave the parties

"two weeks leave to determine and fix" the attorney fees before the court would

determine the fees based upon statements received from the parties.

{¶ 13} R.C. 305.14(A) provides:

"The court of common pleas, upon the application of the prosecuting

attorney and the board of county commissioners, may authorize the board to employ

legal counsel to assist the prosecuting attorney, the board, or any other county

officer in any matter of public business coming before such board or officer, and in

the prosecution or defense of any action or proceeding in which such board or

officer is a party or has an interest, in its official capacity."

"Application by both the prosecuting attorney and the board of county

commissioners is a prerequisite to authorization by a court of common pleas

pursuant to R.C. 305.14 of appointment of other counsel to represent a county

officer, except where the prosecuting attorney has a conflict of interest and refuses

to make application." State ex rel. Corrigan v. Seminatore (1981), 66 Ohio St.2d

459, 20 O.O.3d 388, 423 N.E.2d 105, paragraph one of the syllabus. In those cases

where the prosecuting attorney has a conflict of interest and refuses to make the

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application, mandamus will lie to compel the application because the failure to

apply constitutes an abuse of discretion. State ex rel. Stamps v. Automatic Data

Processing Bd. of Montgomery Cty. (1989), 42 Ohio St.3d 164, 167, 538 N.E.2d

105, 108-109. Here, the prosecutor previously attempted to mediate the dispute

between the parties and had also represented appellants in the same action by filing

an answer on their behalf. Additionally, the prosecutor would have had an arguable

conflict of interest precluding his representation of Judge Hillyer in the matter. See,

e.g., DR 5-101(A) and 5-105(A); EC 5-20. The board had previously refused to

make the application to the court of common pleas.

{¶ 14} Pursuant to Corrigan and Stamps, the court of appeals properly

ordered the board to make the application. However, the board failed to comply

with that order when it refused to file the proposed entry prepared by the prosecutor

and instead filed an application in the common pleas court which challenged the

court of appeals' determination. Under these circumstances, and where it appeared

that any further writ ordering the proper application would involve considerable

delay because of the recusal of the assigned common pleas court judge, the court

of appeals appropriately appointed independent counsel for Judge Hillyer itself.

Consequently, although the court of appeals would normally lack authority to do

so, the board's failure to comply with the initial writ vested the court with the power

to bypass the normal statutory procedure. Therefore, the court of appeals did not

abuse its discretion by awarding attorney fees to Judge Hillyer.

SUITABLE COURT FACILITIES

{¶ 15} In their third proposition of law, appellants contend that the court of

appeals erroneously elevated M.C.Sup.R. 17, entitled "Court Facility Standards,"

to a mandatory status. R.C. 1907.19 provides that the "board of county

commissioners shall provide for each county court judge in the county suitable

court and office space and all materials necessary for the business of the court,

including a current set of the Revised Code." (Emphasis added.) The statute does

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not define "suitable" or "necessary." However, in interpreting an analogous duty

on the part of the legislative authorities of municipalities to provide "suitable

accommodations" for municipal courts, the court has noted that M.C.Sup.R. 17 is

"intended to provide basic guidelines for facilities of municipal and county courts."

State ex rel. Taylor v. Delaware (1982), 2 Ohio St.3d 17, 18, 2 OBR 504, 505, 442

N.E.2d 452, 454. Therefore, "[a]lthough not all of the provisions of the rule are

mandatory in character, the standards set forth in the rule should be taken into

consideration in measuring the adequacy of existing court facilities." Id.

{¶ 16} The court of appeals considered the M.C.Sup.R. 17 standards in

measuring the suitability of the county court facilities. Contrary to appellants'

contentions on appeal, the court of appeals did not appear to consider these

standards to be mandatory requirements but merely utilized them to decide the

factual issue of whether the county court facilities were suitable. See, e.g., State ex

rel. Finley v. Pfeiffer (1955), 163 Ohio St. 149, 56 O.O. 190, 126 N.E.2d 57,

paragraph two of the syllabus (necessity of court space constitutes a question of

fact); 1987 Ohio Atty.Gen.Ops. No. 87-039 (whether the use of certain appliances

is necessary for the proper and efficient operation of a court is a question of fact).

As this court noted in Taylor, the consideration of M.C.Sup.R. 17 in this inquiry is

appropriate.

{¶ 17} As to its factual determination that the existing court facilities were

not suitable, reviewing courts will not reverse judgments supported by some

competent, credible evidence. Eberly v. A-P Controls, Inc. (1991), 61 Ohio St.3d

27, 30, 572 N.E.2d 633, 635; State ex rel. Shady Acres Nursing Home, Inc. v.

Rhodes (1983), 7 Ohio St.3d 7, 8-9, 7 OBR 318, 320, 455 N.E.2d 489, 491; see,

also, R.C. 2731.09 (issues of fact in mandamus actions must be tried in the same

manner as in civil actions). Judge Hillyer testified that the facilities were

inadequate and the commissioners admitted that the courtroom was crowded, not

very good, and did not comply with M.C.Sup.R. 17 (including some of its

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mandatory provisions, e.g., M.C.Sup.R. 17[F] requiring that each courtroom

equipped to hear jury trials have a soundproof jury deliberation room). The court

of appeals' factual determination is supported by sufficient evidence and we will

not substitute our judgment for that of the court of appeals. Thus, the court of

appeals did not err in issuing a writ of mandamus compelling the board to provide

suitable facilities consistent with M.C.Sup.R. 17.

PROBATION OFFICER

{¶ 18} Appellants contend in their fourth proposition of law that since the

General Assembly has not specifically granted county court judges the authority to

appoint probation officers as it has to common pleas and municipal judges, Judge

Hillyer lacked authority to appoint Blackwell as probation officer.

{¶ 19} R.C. 1907.18(B) provides:

"County court judges may punish contempts, and exercise powers necessary

to give effect to the jurisdiction of the court and to enforce its judgments, orders,

and decrees, as provided in this chapter or, in the absence of a provision in this

chapter, in a manner authorized by the Revised Code or common law for the judges

of the courts of common pleas."

{¶ 20} R.C. 2301.27 allows courts of common pleas to appoint probation

officers, fix their salaries, and supervise their work.

{¶ 21} Judge Hillyer testified that Blackwell, in his appointed position as

full-time probation officer, was absolutely necessary to the efficient operation of

the court and made it possible to enforce judgments in criminal cases where

supervised probation was ordered. The evidence further indicated that $26,000 per

year was a reasonable salary. Consequently, the court of appeals properly

determined, pursuant to R.C. 1907.18(B) and 2301.27, that Judge Hillyer possessed

the authority to hire Blackwell, and was entitled to the issuance of writ ordering

appellants to pay Blackwell back pay and interest, and to appropriate funds for his

continued employment.

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CROSS-APPEAL

{¶ 22} Judge Hillyer asserts that the court of appeals abused its discretion

in denying his claims for mandamus concerning appropriation of budget requests

for his court and the prevention of the board's interference with the operation of the

court.

{¶ 23} In a mandamus action, "a court is not limited to considering facts

and circumstances at the time a proceeding is instituted, but should consider the

facts and conditions at the time it determines whether to issue a peremptory writ."

Oregon v. Dansack (1993), 68 Ohio St.3d 1, 4, 623 N.E.2d 20, 22. Judge Hillyer

acknowledged that aside from the claims he ultimately prevailed on, i.e., suitable

court facilities and the propriety of Blackwell's employment, the board had fully

complied with his budget requests and had not interfered with his court's operations

following the various threats made by the board in 1991. Therefore, since it

appeared that the board had actually complied with Judge Hillyer's requests on

these matters and had not acted upon its threats, Judge Hillyer established no clear

legal duty on the part of the board to provide the requested relief. Additionally, to

the extent that Judge Hillyer requested prospective relief from future interference,

mandamus is not granted to take effect prospectively. State ex rel. Martinelli v.

Corrigan (1994), 68 Ohio St.3d 362, 363, 626 N.E.2d 954, 955, citing State ex rel.

Willis v. Sheboy (1983), 6 Ohio St.3d 167, 6 OBR 225, 451 N.E.2d 1200, paragraph

two of the syllabus.

{¶ 24} Furthermore, we agree with the court of appeals that R.C. 1907.20

gives the board control over the county clerk's office where the clerk has been

appointed. R.C. 1907.20 provides:

"(A) The clerk of courts shall be the clerk of the county court, except that

the board of county commissioners, with the concurrence of the county court

judges, may appoint a clerk for each county court judge, who shall serve at the

pleasure of the board and shall receive compensation as set by the board * * *.

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"* * *

"(E)(1) In county court districts having appointed clerks, deputy clerks may

be appointed by the board of county commissioners. Clerks and deputy clerks shall

receive such compensation payable in semimonthly installments out of the county

treasury as the board may prescribe. * * *"

{¶ 25} Since the General Assembly has placed discretion over appointed

county court clerks and deputy clerks in the board, Judge Hillyer is not entitled to

an automatic appropriation of the requested salaries even if those requests are

reasonable. See, e.g., State ex rel. Donaldson v. Alfred (1993), 66 Ohio St.3d 327,

330, 612 N.E.2d 717, 720; State ex rel. Musser v. Massillon (1984), 12 Ohio St.3d

42, 45, 12 OBR 36, 38, 465 N.E.2d 400, 402; State ex rel. Durkin v. Youngstown

City Council (1984), 9 Ohio St.3d 132, 134, 9 OBR 382, 384, 459 N.E.2d 213, 215.

Under R.C. 1907.20(A) and (E), the clerks and deputy clerks of the county court

serve at the pleasure of the board; consequently, the board may reasonably control

the operation of the county clerk's office.

{¶ 26} To the extent that Judge Hillyer claims that the board's statutorily

authorized control over the clerk's office would violate the separation of powers

doctrine, there is no evidence that the board has encroached upon the court's

authority in this context. See State v. Warner (1990), 55 Ohio St.3d 31, 564 N.E.2d

18, paragraph one of the syllabus ("commissioning of a special prosecutor is a

constitutional exercise of legislative power when the General Assembly has

conferred the powers of appointment, removal and supervision on the state

Attorney General"). In the case at bar, the board has not even laid off any employee

of the county clerk's office and has appropriated all amounts requested for that

office although it could have done otherwise pursuant to R.C. 1907.20, absent an

abuse of its discretion. The court of appeals did not abuse its discretion in denying

the requested mandamus relief on these claims.

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{¶ 27} Accordingly, for the foregoing reasons, the judgment of the court of

appeals is affirmed.

Judgment affirmed.

MOYER, C.J., A.W. SWEENEY, RESNICK, F.E. SWEENEY and PFEIFER, JJ.,

concur.

DOUGLAS and WRIGHT, JJ., concur in judgment only.

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