State ex rel. Dreamer v. Mason

[Cite as State ex rel. Dreamer v. Mason, 129 Ohio St.3d 94, 2011-Ohio-2318.]

THE STATE EX REL. DREAMER, ET AL., APPELLEES, v.

MASON, PROS. ATTY., ET AL., APPELLANTS.

[Cite as State ex rel. Dreamer v. Mason, 129 Ohio St.3d 94, 2011-Ohio-2318.]

R.C. 309.09 and 305.14 — Elections board employees charged with committing

election-law violations during a recount — Employees did not satisfy their

burden to show that county prosecuting attorney and county board of

commissioners had a duty to apply to the court of common pleas for

appointment of counsel to represent them — Elections board employees

are not “county officers” for purposes of R.C. 309.09 and 305.14.

(No. 2010-1551 — Submitted March 1, 2011 — Decided May 19, 2011.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 93949,

189 Ohio App.3d 420, 2010-Ohio-4110.

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LANZINGER, J.

{¶ 1} This is an appeal from a judgment granting a writ of mandamus.

We reverse the judgment of the court of appeals and deny the writ because

appellees, employees of the Cuyahoga County Board of Elections (“the elections

board”), have not satisfied their burden to show that appellants, Cuyahoga County

Prosecuting Attorney William D. Mason (“the prosecutor”) and the Cuyahoga

County Board of Commissioners (“the commissioners”), had a clear legal duty

under R.C. 309.09 and 305.14 to jointly apply to the court of common pleas for

the retroactive appointment of counsel and reimbursement of legal-defense fees of

appellees.

I. Case Background

{¶ 2} The criminal prosecution of appellees in this case arose from

conduct that allegedly occurred during the election recount of the November 2004

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presidential election. Appellee Jacqueline Maiden was the coordinator for the

elections board and appellees Kathleen Dreamer and Rosie Grier were,

respectively, the manager and assistant manager of the elections board’s ballot

department during the November 2004 election and the recount. Maiden was in

charge of preparing the election board’s staff for the recount, and Dreamer and

Grier were involved in organizing and conducting the recount.

{¶ 3} On December 22, 2004, the elections board met and certified the

recount results. During that meeting, information was disclosed that suggested

that personnel might not have conducted the recount in accordance with Ohio law.

The elections board did not initiate an investigation into whether its employees

had violated Ohio law in conducting the recount and did not refer the matter to the

prosecutor. Upon the January 3, 2005 request of the Green and Libertarian

Parties, however, the prosecutor referred the investigation and criminal

prosecution of possible election-law violations to a special prosecutor, Erie

County Prosecuting Attorney Kevin Baxter. In the spring of 2005, the special

prosecutor interviewed elections-board members and staff. The prosecutor’s

office advised the elections board that neither its members nor its staff would be

provided legal counsel before or during the interviews.

{¶ 4} In August 2005, several members and employees of the elections

board received grand-jury subpoenas. The elections board requested that the

prosecutor provide counsel to board members, officers, and employees who had

received subpoenas. The prosecutor’s office informed the board that it would not

advise or provide counsel to any of the subpoenaed persons. An August 17, 2005

request from the director of the elections board to the prosecutor requesting that

“special counsel, at the Board’s choosing, be granted to provide necessary legal

assistance, at the very least, to explain to those subpoenaed the grand jury

process” went unfulfilled.

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{¶ 5} In August 2005, the grand jury indicted Dreamer and Grier on

charges of election-law violations concerning the recount. In February 2006, the

grand jury indicted Maiden on the same charges. Following the indictments, the

elections board released a public statement defending its employees.

{¶ 6} In April 2006, the private attorneys who had been hired by

Dreamer and Maiden requested that the elections board, pursuant to R.C.

305.14(A), ask the prosecutor’s office and the commissioners to petition the court

of common pleas to authorize the commissioners to retain them at county expense

as counsel for Dreamer and Maiden in the pending criminal cases. Dreamer’s

attorney also appeared at two executive sessions of the elections board, where he

repeated his request.

{¶ 7} During both executive sessions, the elections board agreed that it

would pay the legal fees and expenses of Dreamer, Maiden, and Grier in all

matters related to their criminal cases if they were not convicted of criminal

conduct. An assistant county prosecuting attorney was present at one of the

executive sessions and was aware of the appellees’ attorneys’ and the elections

board’s requests for the appointment of independent counsel for the indicted

employees. According to the elections board’s then deputy director, the assistant

prosecuting attorney informed the board members during an executive session

that the county would pay appellees’ legal fees if they were found not guilty.

{¶ 8} The elections board requested that the prosecutor apply for the

appointment of independent counsel to represent Dreamer, Maiden, and Grier in

their criminal cases, but he refused. The elections board also requested that the

commissioners act unilaterally to apply to the common pleas court for the

appointment of independent counsel for the employees, but the prosecutor, on

behalf of the commissioners, rejected the request.

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{¶ 9} In January 2007, Dreamer, Maiden, and Grier were tried by a jury

on the charges. Grier was found not guilty on all charges. The charges against

Dreamer and Maiden were eventually dismissed.

{¶ 10} Nearly a year later, on September 18, 2009, appellees, Dreamer,

Maiden, and Grier, filed a complaint in the Court of Appeals for Cuyahoga

County for a writ of mandamus to compel the prosecutor and commissioners “to

make application to the Cuyahoga County Court of Common Pleas for retroactive

appointment of independent counsel” and to order the commissioners to pay for

their “legal expenses incurred by defending themselves against criminal charges

related to the performance of their official duties for the Cuyahoga County Board

of Elections during the 2004 election and recount.” Appellants filed a motion for

summary judgment, and appellees filed a brief in opposition.

{¶ 11} In September 2010, a divided panel of the court of appeals denied

appellants’ motion for summary judgment and granted the writ of mandamus to

compel the prosecutor and the commissioners to “make an application to the court

of common pleas pursuant to R.C. 305.14(A).” The court further held: “The

court of common pleas, upon finding that [appellees] acted in good faith and a

well-intended manner in performing their official job duties, may authorize

retroactive appointment of counsel and reimbursement of legal expenses in an

amount fixed by the commissioners.” 189 Ohio App.3d 420, 2010-Ohio-4110,

938 N.E.2d 1078, ¶ 52.

{¶ 12} This cause is now before the court upon the prosecutor and

commissioners’ appeal as of right.

II. Legal Analysis

A. Mandamus

{¶ 13} To be entitled to the writ, appellees must establish a clear legal

right to an application for the retroactive appointment of counsel and

reimbursement of their attorney fees and other legal expenses at county expense,

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as well as a corresponding clear legal duty of the prosecutor and commissioners to

apply to the court of common pleas for this relief, and the lack of an adequate

remedy in the ordinary course of law. See State ex rel. Carnail v. McCormick,

126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, ¶ 7. Appellees claim

entitlement to the requested extraordinary relief based solely on R.C. 309.09 and

305.14. They have not claimed estoppel.

B. The statutes: R.C. 309.09(A) and 305.14

{¶ 14} R.C. 309.09(A) sets forth the general rule that “[t]he prosecuting

attorney shall be the legal adviser of the board of county commissioners, board of

elections, and all other county officers and boards” and that “[t]he prosecuting

attorney shall prosecute and defend all suits and actions which any such officer or

board directs or to which it is a party, and no county officer may employ any other

counsel or attorney at the expense of the county, except as provided in section

305.14 of the Revised Code.” (Emphasis added.) See also State ex rel. Sartini v.

Yost, 96 Ohio St.3d 37, 2002-Ohio-3317, 770 N.E.2d 584, ¶ 26; State ex rel.

O’Connor v. Davis (2000), 139 Ohio App.3d 701, 706, 745 N.E.2d 494 (under

R.C. 309.09(A), the prosecuting attorney “has the statutory responsibility and

authority to advise, prosecute, and defend county officers and boards as

specified”).

{¶ 15} R.C. 305.14 confers jurisdiction on courts of common pleas to

authorize a board of county commissioners to employ special counsel upon joint

application of the prosecuting attorney and the board of county commissioners:

{¶ 16} “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

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such board or officer is a party or has an interest, in its official capacity.” R.C.

305.14(A).

{¶ 17} The board of county commissioners fixes the compensation of all

persons appointed or employed pursuant to R.C. 305.14, and that compensation,

along with reasonable expenses, is paid from the county treasury upon allowance

by the board. R.C. 305.17.

{¶ 18} Thus, it is true that an application by both the prosecuting attorney

and the board of county commissioners is required for the court of common pleas

to authorize the appointment of counsel other than the prosecuting attorney to

represent a county officer. R.C. 305.14(A).1 But appellees have failed to

establish their clear legal right to relief in this case because they are not “county

officers” for purposes of R.C. 309.09 and 305.14.2

{¶ 19} Appellees are employees of the elections board who were required

to defend themselves against criminal allegations that they had violated election

1. We have set forth one exception to this requirement. See State ex rel. Hamilton Cty. Bd. of

Commrs. v. Hamilton Cty. Court of Common Pleas, 126 Ohio St.3d 111, 2010-Ohio-2467, 931

N.E.2d 98, ¶ 28. (“[N]otwithstanding the express language of R.C. 305.14(A), the common pleas

court may act to appoint counsel other than the prosecuting attorney to represent the board of

county commissioners if the prosecuting attorney has a conflict of interest even in the absence of

the joint application specified in R.C. 305.14(A) when the prosecutor refuses to join in the

application. See, e.g., 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 (‘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 office, except

where the prosecuting attorney has a conflict of interest and refuses to make application’).”)

(Emphasis sic.)

2. We recognize that this issue is not raised by either party on appeal. Nevertheless, during the

earlier proceedings, the court of appeals ordered the parties to brief this issue. Furthermore, “our

plenary authority in extraordinary actions permits us to consider the instant appeal as if it had been

originally filed in this court.” State ex rel. Minor v. Eschen (1995), 74 Ohio St.3d 134, 138, 656

N.E.2d 940. The “court’s plenary authority generally refers to our ability to address the merits of

a writ case without the necessity of a remand if the court of appeals erred in some regard.” State

ex rel. Natl. Elec. Contrs. Assn., Ohio Conf. v. Ohio Bur. of Emp. Servs. (2000), 88 Ohio St.3d

577, 579, 728 N.E.2d 395. We conclude that no remand is warranted here, and we choose to

invoke this court’s plenary authority to resolve the issue that was decided in the court of appeals in

this writ case.

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laws during an election recount. R.C. 309.09 and 305.14 specify duties of the

prosecutor with respect to “county officers.” Because appellees based their

mandamus action in the court of appeals on statutory grounds only, the statutes

themselves answer whether the elections board employees have a right to an

application for independent counsel and payment of attorney fees and whether the

county prosecutor has a corresponding duty to file such an application in the

common pleas court.

{¶ 20} Neither statute primarily relied upon discusses employees. R.C.

309.09(A) states that “[t]he prosecuting attorney shall be the legal adviser of the

board of county commissioners, board of elections, and all other county officers

and boards” and that “[t]he prosecuting attorney shall prosecute and defend all

suits and actions which any such officer or board directs or to which it is a party,

and no county officer may employ any other counsel or attorney at the expense of

the county, except as provided in section 305.14 of the Revised Code.”

(Emphases added.) R.C. 305.14(A) then grants discretion to the court of common

pleas. “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.”

(Emphases added.) Nothing in either statute addresses employees.

{¶ 21} In its decision, the court of appeals erroneously found that “under

the plain language of R.C. 309.09(A) and 305.14(A), [appellees] should have

been considered county officers.” 189 Ohio App.3d 420, 2010-Ohio-4110, 938

N.E.2d 1078, at ¶ 15. But as the dissenting judge recognized, “[t]he authority of a

county board of elections and the performance of duties by its members are

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governed by applicable statutory requirements.” Id. at ¶ 59 (Gallagher, J.,

dissenting).

{¶ 22} We have held, “Under the mandatory provisions of Section 2,

Article X and Section 1, Article XVII of the Constitution of Ohio, and the statutes

passed pursuant thereto, all matters pertaining to the conduct of elections are state

functions.” State ex rel. Columbus Blank Book Mfg. Co. v. Ayres (1943), 142

Ohio St. 216, 27 O.O. 176, 51 N.E.2d 636, paragraph one of the syllabus.

{¶ 23} Furthermore, statutory authority over the boards of elections is

vested in the secretary of state. Among other duties, the secretary of state appoints

county election board members (R.C. 3501.05(A) and 3501.06), issues directives

and advisories to board members (R.C. 3501.05(B)), compels observance of

election laws (R.C. 3501.05(B) and (M)), and removes and replaces board

members if necessary (R.C. 3501.16). As we noted, “[m]embers of the boards of

elections act under the direct control of and are answerable only to the Secretary

of State in his capacity as the chief election officer of the state. They perform no

county functions and are not county officers.” Ayres at paragraph two of the

syllabus.

{¶ 24} Although under R.C. 3501.01(U)(6), employees of the elections

board are “election officers,” R.C. 3501.14 specifically states that “[t]he director,

deputy director, and other employees of the board are not public officers * * *.”

(Emphases added.)

{¶ 25} Consequently, this mandamus action must fail because appellees

have not satisfied their burden to show that employees who are performing their

official duties on behalf of the county elections board are “county officers.” Both

Ayres and R.C. 3501.14 negate any suggestion that an elections board employee

can be characterized as a county officer. The court of appeals thus also erred in

its resolution of this issue.

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{¶ 26} As previously stated, we do not have the power to create the legal

duty enforceable through mandamus. That is the distinct function of the

legislative branch of government. State ex rel. Pipoly v. State Teachers

Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 18.

C. Motions

{¶ 27} We deny appellants’ motion for oral argument. Oral argument is

not mandatory in this appeal as of right. S.Ct.Prac.R. 9.1. The parties’ briefs are

sufficient to resolve the pertinent legal issues. See Rosen v. Celebrezze, 117 Ohio

St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 11. We also deny appellees’

motion to strike appellants’ reply brief and grant appellants’ motion to correct a

misstatement in that brief.

III. Conclusion

{¶ 28} Based on the foregoing, the court of appeals erred in granting the

writ of mandamus when appellees failed to establish their entitlement to the

requested extraordinary relief. Therefore, we reverse the judgment of the court of

appeals and deny the writ.

Judgment reversed

and writ denied.

O’CONNOR, C.J., and O’DONNELL, CUPP, and MCGEE BROWN, JJ., concur.

PFEIFER and LUNDBERG STRATTON, JJ., dissent and would affirm the

judgment of the court of appeals.

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Synenberg & Associates, Roger M. Synenberg, and Dominic J. Coletta;

Rotatori Bender Co., L.P.A., Robert J. Rotatori, and Richard L. Stoper; and Argie,

D’Amico & Vitantonio and Dominic Vitantonio, for appellees.

William D. Mason, Cuyahoga County Prosecuting Attorney, and David G.

Lambert and Charles E. Hannan, Assistant Prosecuting Attorneys, for appellants.

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