State ex rel. Greene Cty. Bd. of Commrs. v. O'Diam (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Greene Cty. Bd. of Commrs. v. O’Diam, Slip Opinion No. 2019-Ohio-1676.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2019-OHIO-1676

THE STATE EX REL. GREENE COUNTY BOARD OF COMMISSIONERS ET AL. v.

O’DIAM, JUDGE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Greene Cty. Bd. of Commrs. v. O’Diam, Slip

Opinion No. 2019-Ohio-1676.]

Prohibition—Writ sought to prevent probate-court judge from enforcing orders

concerning control of courtroom currently under the control of general

division of common pleas court—Judge does not have inherent authority to

issue order allowing him to take control of courthouse space that is already

under the control of another judge—Writ granted with qualification.

(No. 2018-0399—Submitted February 19, 2019—Decided May 7, 2019.)

IN PROHIBITION.

____________________

Per Curiam.

{¶ 1} In this original action, relators, the Greene County Board of

Commissioners (“the board”) and Greene County, seek a writ prohibiting a

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common-pleas-court judge from enforcing his orders concerning the control of

Courtroom 3 in the Greene County Courthouse. Courtroom 3 is currently under the

control of the General Division of the Greene County Court of Common Pleas. But

Judge Thomas O’Diam of the probate division of the Greene County Court of

Common Pleas has ordered the board to designate the room as the probate

division’s courtroom and to provide the probate division exclusive use of the room

three days a week. In a related case currently pending before us, case No. 2018-

0447, Judge O’Diam seeks a writ of mandamus to enforce his orders.

{¶ 2} Judge O’Diam has filed a motion to dismiss this case. Also, the Ohio

Association of Probate Judges has filed a motion for leave to file an amicus curiae

memorandum in support of Judge O’Diam’s motion to dismiss, and the two judges

of the general division of the Greene County Court of Common Pleas have filed a

motion to intervene as relators.

BACKGROUND

{¶ 3} Judge O’Diam engaged in a year-long effort to persuade the board and

the general-division judges that the probate division needs a full-sized courtroom

dedicated to its proceedings. That effort was not successful, and on March 5, 2018,

Judge O’Diam issued an order setting forth the following mandates:

1. The Greene County Board of Commissioners shall

immediately, by appropriate resolution, designate Courtroom 3 as

the permanent Probate Court courtroom on the terms described on

Exhibit A attached to this Judgment Entry and Order [the principal

term being exclusive probate-court control three days a week],

without any modification, conditions or stipulations of any kind.

2. The Greene County Board of Commissioners shall pass

the resolution making this designation in full compliance with this

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Judgment Entry and Order at the Board’s next regularly scheduled

meeting on March 8, 2018.

3. The Greene County Board of Commissioners shall further

pay directly from the County’s General Fund pursuant to statute, or

reimburse this Court for, its reasonable and necessary legal fees and

expenses arising out of, occasioned by, or directly or indirectly

relating to this Judgment Entry and Order, and any subsequent

mandamus action or similar proceeding this Court may institute

against the Board because of the Board’s failure or refusal to comply

with this Judgment Entry and Order.

{¶ 4} In response, on March 6, 2018, the general-division judges entered an

order that expressed their intent “to maintain sole and exclusive management of the

lower area of the Greene County Courthouse [which is where Courtroom 3 is

located] for use by the General Division and benefit of other agencies.”

{¶ 5} The board met on March 8 and considered the two conflicting orders.

After an executive session, they passed Resolution No. 18-3-8-26, which directed

the county administrator to construct office space and a courtroom for the probate

division, paid for from the county’s general fund, in the lower level of the Juvenile

Justice Center building.

{¶ 6} On March 13, 2018, Judge O’Diam issued an order declaring the

board’s March 8 resolution void, ordering that the resolution be rescinded, and

enjoining the board from taking any action in furtherance of it.

{¶ 7} The board and the county then filed the instant action, seeking a writ

of prohibition preventing Judge O’Diam from enforcing his March 5 and 13 orders

and prohibiting him from issuing further orders in the matter. As mentioned

previously herein, Judge O’Diam has filed a motion to dismiss.

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ANALYSIS

The motion for leave to file an amicus curiae memorandum

{¶ 8} The Ohio Association of Probate Judges seeks leave to file an amicus

curiae memorandum in support of Judge O’Diam’s motion to dismiss and has filed

a proposed memorandum. Although S.Ct.Prac.R. 16.06 authorizes the filing of

amicus briefs without leave of court, that authorization does not extend to

“memoranda before an alternative writ is granted.” State ex rel. Duke Energy Ohio,

Inc. v. Hamilton Cty. Court of Common Pleas, 126 Ohio St.3d 41, 2010-Ohio-2450,

930 N.E.2d 299, ¶ 11. Thus, it was proper for the probate-judges’ association to

seek leave. The motion is unopposed, and we hereby grant it.

The motion to intervene

{¶ 9} The general-division judges filed a motion to intervene as relators in

this case, along with a proposed complaint. Judge O’Diam filed a memorandum

opposing intervention, asserting that the general-division judges’ motion was

untimely and that the board adequately represents the interest of the general-

division judges as relators in this prohibition case.

{¶ 10} Civ.R. 24(A)(2) provides that upon “timely application,” anyone

shall be permitted to intervene in a cause of action, “when the applicant claims an

interest relating to the property or transaction that is the subject of the action and

the applicant is so situated that the disposition of the action may as a practical matter

impair or impede the applicant’s ability to protect that interest, unless the

applicant’s interest is adequately represented by existing parties.” And Civ.R.

24(B)(2) allows a court to permit an applicant’s intervention based on a showing

that the applicant’s claim or defense has a question of law or fact in common with

the “main action.” In exercising its discretion, the court “shall consider whether

the intervention will unduly delay or prejudice the adjudication of the rights of the

original parties.”

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{¶ 11} Although the general-division judges incontestably possess an

interest in preventing the enforcement of Judge O’Diam’s orders, and although

obtaining a writ of prohibition would help them retain control of Courtroom 3,

Judge O’Diam’s mandamus case (Supreme Court case No. 2018-0447, in which the

general-division judges also seek to intervene) provides the opportunity for them to

assert both jurisdictional and substantive defenses against the enforcement of Judge

O’Diam’s orders. Moreover, for purposes of asserting that Judge O’Diam lacked

jurisdiction to issue his orders, relators adequately represent the general-division

judges’ interest.

{¶ 12} The complaint and exhibits show that the board, whose resolution

directs the renovation of space for the probate division in the Juvenile Justice Center

building, has taken the same position as the general-division judges and is seeking

to keep Judge O’Diam from enforcing his orders. Thus, relators seek the same

ultimate goal as the general-division judges. See Clarke v. Warren Cty. Commrs.,

12th Dist. Warren No. CA2000-01-009, 2000 WL 1336684 (Sept. 18, 2000), *3,

quoting Nationwide Mut. Ins. Co. v. Clow, 1st Dist. Hamilton No. C-910511, 1992

Ohio App. LEXIS 4957 (Sept. 30, 1992), *6 (“ ‘Where the party seeking to

intervene has the same ultimate goal as a party already in the suit, courts have

applied a presumption of adequate representation, and to overcome that

presumption, applicants ordinarily must demonstrate adversity of interest, collusion

or nonfeasance’ ”).

{¶ 13} Additionally, in this case, it is the board, not the general division,

that could be held in contempt of Judge O’Diam’s order, and the board has both the

full incentive and no less capability to advance the strictly legal arguments in

support of prohibition. Because relators adequately represent the interest of the

general-division judges, we deny intervention of right under Civ.R. 24(A).

{¶ 14} We exercise our discretion to also deny permissive intervention

under Civ.R. 24(B). The issues in Judge O’Diam’s motion to dismiss the complaint

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have been fully briefed, and granting intervention at this juncture would impose

further delay because Judge O’Diam would need to be given the opportunity to

respond to the intervenors’ complaint. We hold that granting intervention under

these circumstances would unduly delay our adjudication of this matter.

The motion to dismiss

{¶ 15} Judge O’Diam has moved to dismiss the complaint for a writ of

prohibition. “Dismissal of the prohibition complaint for failure to state a claim

upon which relief can be granted is appropriate if, after presuming the truth of all

factual allegations of the complaint and making all reasonable inferences in [the

relator’s] favor, it appears beyond doubt that he can prove no set of facts entitling

him to the requested extraordinary writ of prohibition.” State ex rel. Hemsley v.

Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d 1014, ¶ 8.

{¶ 16} To demonstrate entitlement to a writ of prohibition, relators must

show (1) that Judge O’Diam has exercised judicial power, (2) that his exercise of

judicial power is unauthorized by law, and (3) that denying the writ would result in

injury for which no other adequate remedy exists in the ordinary course of law. See

State ex rel. Richland Cty. Children Servs. v. Richland Cty. Court of Common

Pleas, 152 Ohio St.3d 421, 2017-Ohio-9160, 97 N.E.3d 429, ¶ 8. Because the first

element is undisputedly met, we turn to the question whether Judge O’Diam’s

exercise of judicial power was unauthorized by law.

{¶ 17} Judge O’Diam relies on case law establishing that “[c]ommon pleas

courts and their divisions possess inherent authority to order funding that is

reasonable and necessary to the court’s administration of its business.” State ex rel.

Wilke v. Hamilton Cty. Bd. of Commrs., 90 Ohio St.3d 55, 60, 734 N.E.2d 811

(2000). In evaluating appropriations made by boards of county commissioners in

those cases, the court focused on “the separation of powers among the various

branches of government.” State ex rel. Johnston v. Taulbee, 66 Ohio St.2d 417,

420, 423 N.E.2d 80 (1981).

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{¶ 18} Judge O’Diam is correct that our case law holds that courts may issue

orders to secure both adequate funding and adequate facilities in the courthouse.

We have held that a court’s “funding orders are presumed reasonable and [a board

of county commissioners] bears the burden to rebut the presumption” when a court

seeks a writ of mandamus to enforce such orders. Wilke at 60, 65. Similarly, we

have held that a court has inherent judicial power to take control of space in a

courthouse by judicial order when the space is reasonably necessary for the court’s

operation. See State ex rel. Bittikofer v. Babst, 97 Ohio St. 64, 119 N.E. 136 (1917);

Zangerle v. Cuyahoga Cty. Court of Common Pleas, 141 Ohio St. 70, 46 N.E.2d

865 (1943); State ex rel. Finley v. Pfeiffer, 163 Ohio St. 149, 126 N.E.2d 57 (1955).

{¶ 19} The complaint contends that Judge O’Diam lacked jurisdiction to

issue orders requiring the board to designate Courtroom 3 as the probate-division’s

courtroom. But contrary to the overall theory of the complaint, courts do possess

inherent powers related to funding and courtroom space. Moreover, those inherent

powers are enjoyed by all constitutionally recognized courts, including the probate

courts. In Finley, we specifically held that “the Probate Court is a court of general

jurisdiction” for purposes of exercising inherent judicial authority. Id. at 153. And

although the provisions of the Ohio Constitution related to the judicial system have

been amended since Finley was decided, those changes do not affect our rationale

in Finley. It remains true that the probate division is “established by the

Constitution”1 and that, like any other court, it “has full authority and power to deal

with all the subjects entrusted to it.” Finley at 153. All such courts possess similar

inherent powers related to funding and courtroom space.

{¶ 20} That said, and as the motion to dismiss acknowledges, “the dispute

over Courtroom 3 presents for the first time competing demands of two courts.”

We therefore turn to relators’ assertion that the case law regarding the power of a

1

See Ohio Constitution, Article IV, Section 4(C).

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judge to take control of space in a courthouse is inapposite in this case because

Judge O’Diam “is not seeking to take Courtroom 3 from another officer of the

County” but rather “from the General Division of the Common Pleas Court.” As

relators point out, “the General Division’s need to exercise its judicial functions is

not inferior, or secondary, to the Probate Court’s similar need” and unlike the

circumstances presented in the case law, the board in this case is being ordered by

one judge to “disregard a simultaneous order by [other judges].”

{¶ 21} Relators are correct that the case law on this issue involves judicial

orders taking control of courthouse space occupied by administrative offices, not

by other courts. Bittikofer, 97 Ohio St. 64, 119 N.E. 136 (court order ousts the

county school superintendent); Zangerle, 141 Ohio St. 70, 46 N.E.2d 865 (court

order ousts the county auditor); Finley, 163 Ohio St. 149, 126 N.E.2d 57 (court

order ousts the county recorder). Each case involves the exercise of power by a

court over space within a courthouse, and in each case, we endorsed the exercise of

judicial power on the grounds that the executive branch may not usurp judicial

authority in determining the use of courthouse space. See Bittikofer at 66 (because

the “judicial power is a separate and independent department of the government,”

a courthouse “naturally and necessarily comes within the control of that

department; otherwise a conflict of authority might seriously impede the

administration of justice”); Zangerle at paragraphs one, two, and three of the

syllabus (because the “purpose of a courthouse * * * is to furnish the rooms and

facilities essential for the proper and efficient performance of the functions of the

court” and because a court “possess[es] all powers necessary to secure and

safeguard the * * * exercise of [its] judicial functions and cannot be * * * impeded

therein by other branches of the government,” the court “may exercise control over

the courthouse”); Finley at 154-155 (acknowledging a court’s inherent power to

acquire facilities for its operation but limiting the power to “the acquisition of

necessary as distinguished from desirable quarters and space”).

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{¶ 22} By contrast, the relators in this case are not relying on the board’s

executive authority but on the order of the general-division judges. That fact

distinguishes this case from prior inherent-power cases, inasmuch as Judge O’Diam

cannot claim authority that supersedes that of the court’s general division—any

more than the general-division judges can issue orders that supersede Judge

O’Diam’s authority as probate judge.

{¶ 23} In reaching this conclusion, we recognize that in Finley we

hypothesized a conflict that involved the space demands of two different courts.

Moreover, we used that hypothetical to develop the doctrine of the case: the

inherent power of a court to take control of courthouse space is confined to “the

acquisition of the space and facilities essential for its proper and efficient

operation,” as opposed to the acquisition of merely “desirable quarters and space.”

(Emphasis added.) Finley at 155-156. From this reasoning, Judge O’Diam

concludes that Finley makes clear that “the proper path” for resolving the present

dispute is a mandamus action in which the court can review the conflicting court

orders and determine which court has a greater need for the space it claims.

{¶ 24} We disagree with Judge O’Diam’s conclusion. The conflict of court

orders was merely hypothetical in Finley; the actual holding of the case applied the

standard of reasonable necessity to a court order that claimed space from the county

recorder. Although we imagined conflicting court orders in Finley, we did not

specify as part of the hypothetical the situation that we confront here: one of the

two courts currently possesses and controls the courthouse space at issue.

{¶ 25} We hold that a judge does not have inherent authority—and thereby

lacks jurisdiction—to issue an order allowing him to take control of courthouse

space when the space is already under the control of another court, or a different

division of the common-pleas court. It follows that Judge O’Diam was without

power to issue the March 5 and March 13, 2018 orders insofar as they require the

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board to designate Courtroom 3 as the probate-division’s courtroom. We therefore

deny the motion to dismiss.

Merits of the prohibition action

{¶ 26} Under S.Ct.Prac.R. 12.04(C), we now proceed to determine the

merits of the case. Two undisputed facts—the general division’s current control of

Courtroom 3 and the existence of conflicting court orders—establish that as a

matter of law, Judge O’Diam acted beyond his authority in issuing his orders

requiring the board to designate Courtroom 3 as the probate-division’s courtroom.

Judge O’Diam’s lack of jurisdiction is patent and unambiguous. And “[i]n cases

of a patent and unambiguous lack of jurisdiction, the requirement of a lack of an

adequate remedy of law need not be proven because the availability of alternate

remedies like appeal would be immaterial.” State ex rel. State v. Lewis, 99 Ohio

St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195, ¶ 18. For this reason, relators are

entitled to a writ prohibiting the enforcement of Judge O’Diam’s orders requiring

designation of Courtroom 3 as the probate division’s courtroom.

{¶ 27} But Judge O’Diam’s orders not only attempt to take control of

Courtroom 3, they also mandate payment of the legal fees and expenses connected

with defending and enforcing his orders. Relators do not specifically contend that

the judge lacked jurisdiction to make this demand. And the case law treats such an

order as a funding order that is presumptively valid. See Wilke, 90 Ohio St.3d at

65, 734 N.E.2d 811 (“A judge has the inherent authority to order a legislative body

to provide funding necessary for the efficient administration of the court, including

funding private counsel to represent the court”). Of course, funding orders

regarding appointed counsel for county officials need to be evaluated in conjunction

with the statutes relating to the role of the county prosecuting attorney and the

appointment of outside counsel. See, e.g., State ex rel. Gains v. Maloney, 102 Ohio

St.3d 254, 2004-Ohio-2658, 809 N.E.2d 24; State ex rel. Hillyer v. Tuscarawas Cty.

Bd. of Commrs., 70 Ohio St.3d 94, 637 N.E.2d 311 (1994).

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{¶ 28} Because Judge O’Diam’s jurisdiction to order payment of legal fees

and expenses has not been specifically contested in this case and because the

appointment of the judge’s counsel is a subject of dispute in his mandamus case

(Supreme Court case No. 2018-0447), we exempt from the writ of prohibition the

portion of Judge O’Diam’s orders requiring the board to pay his fees and expenses

relating to enforcement of the orders. We will consider the validity of Judge

O’Diam’s demand for payment of his private counsel and other litigation expenses

when we consider the mandamus case.

CONCLUSION

{¶ 29} For the foregoing reasons, we grant the motion for leave to file an

amicus memorandum, deny the general-division judges’ motion to intervene, and

deny Judge O’Diam’s motion to dismiss. We also grant a peremptory writ

prohibiting Judge O’Diam from enforcing his orders entered on March 5 and March

13, 2018, in the Greene County Common Pleas Court, Probate Division, case No.

11587 MISC, captioned “In the Matter of the Designation of Courtroom 3 for Use

by Greene County Common Pleas Court, Probate Division,” and additionally

prohibiting Judge O’Diam from entering additional orders relating to the dispute

over the control of Courtroom 3. But we grant the writ of prohibition with the

qualification that its issuance is without prejudice to Judge O’Diam’s claim that he

is entitled to have the county pay his attorney fees and litigation expenses related

to defending and attempting to enforce his orders. That issue will be addressed in

the mandamus case that is pending before this court in case No. 2018-0447.

Judgment accordingly.

O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and STEWART, JJ.,

concur.

KENNEDY and DONNELLY, JJ., concur in part and dissent in part and would

grant an alternative writ.

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Surdyk, Dowd & Turner Co., L.P.A., and Dawn M. Frick, for relators.

Porter, Wright, Morris & Arthur, L.L.P., Kathleen M. Trafford, and

Caroline Gentry, for respondent.

John D. Smith Co., L.P.A., John D. Smith, and Andrew P. Meier, for

proposed intervenors, Judge Michael A. Buckwalter and Judge Stephen A.

Wolaver.

Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube, for

amicus curiae, Ohio Association of Probate Judges.

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