State ex rel. Butler v. Demis

• Decision Date: 06 May 1981
• Docket Number: 80-1272,Nos. 80-550,s. 80-550
• Citation: State ex rel. Butler v. Demis, 66 Ohio St.2d 123, 420 N.E.2d 116, 20 O.O.3d 121 (Ohio 1981)
• Parties: , 20 O.O.3d 121 The STATE ex rel. BUTLER et al., Appellants, v. DEMIS, Judge et al., Appellees. The STATE ex rel. BOWER et al., v. DEMIS, Judge et al.
• Court: Ohio Supreme Court

Page 123

66 Ohio St.2d 123

420 N.E.2d 116, 20 O.O.3d 121

The STATE ex rel. BUTLER et al., Appellants, v. DEMIS, Judge et al., Appellees.

The STATE ex rel. BOWER et al., v. DEMIS, Judge et al.

Nos. 80-550, 80-1272.

Supreme Court of Ohio.

May 6, 1981.

Syllabus by the Court

R.C. 120.33(B) does not impose a clear legal duty upon a judge to appoint as counsel of record the attorney personally selected by an indigent party.

These cases arise from separate complaints in mandamus filed in this court and in the Court of Appeals for Tuscarawas County. Since they involve common issues, the cases have been consolidated for disposition.

In case No. 80-550, relator-appellant Linda Halsey Butler, a resident of the city of Dennison, appeared before respondent-appellee George J. Demis, Judge of the Court of Common Pleas of Tuscarawas County, Juvenile and Probate Divisions. An action filed in the Juvenile Court by the Tuscarawas County Department of Public Welfare, Division of Children Services, alleged that Butler's four minor children were abused, neglected and dependent, and sought to remove them permanently from Butler's custody. After Butler was found to be indigent, she requested the court to appoint appellant Edward Emmett O'Farrell to represent her. O'Farrell is an attorney who manages Southeastern Ohio Legal Services in New Philadelphia, Ohio. Judge Demis, pursuant to R.C. 120.33(B)(2), chose instead to appoint a different attorney to represent her.

Butler and O'Farrell filed a complaint in mandamus in the Court of Appeals for Tuscarawas County to compel Judge Demis to appoint O'Farrell as counsel of record to represent Butler. Also named in the complaint were appellees Joanne Limbach, William Winters and James Yelverton, Tuscarawas County Commissioners, and appellee Donald Kinsey, Tuscarawas County Auditor.

The Court of Appeals dismissed the complaint, and appellants appealed to this court as a matter of right.

In case No. 80-1272, Erin Bower, an indigent parent who is a party to juvenile proceedings in the Tuscarawas County common pleas court and attorney O'Farrell, relators, filed an original action in mandamus in this court to compel Judge Demis, respondent, to appoint O'Farrell as Bower's counsel of record. Also named as respondents in the complaint are the Tuscarawas County Commissioners and the Tuscarawas County Auditor.

Edward Emmett O'Farrell, New Philadelphia, and David Worth, Coshocton, for relators-appellants.

Ronald L. Collins, Pros. Atty., for respondents-appellees.

KRUPANSKY, Judge.

It is well established that in order for a writ of mandamus to issue, the relators must show the following:

" '(1) that they have a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relators have no plain and adequate remedy in the ordinary course of the law.' " State ex rel. Akron Fire Fighters v. Akron (1978), 54 Ohio St.2d 448, 450, 377 N.E.2d 512.

If relators have a plain and adequate remedy at law, a writ of mandamus will not issue. However, the question remains whether a plain and adequate remedy at law is available to relators herein. The mere existence of another remedy does not bar the issuance of a writ of mandamus. State ex rel. Emmich v. Indus. Comm. (1947), 148 Ohio St. 658, 76 N.E.2d 710. Relators may have a remedy of appeal, but such a remedy is not adequate under the circumstances. If Butler and Bower must wait for an appeal to establish their alleged right to have O'Farrell appointed as their legal counsel, they will be denied the opportunity to have the attorney-client relationship of their own choosing throughout the course of the adjudication and disposition of their cases.

In addition to showing they have no plain and adequate remedy at law, relators must also show a clear legal right to the relief sought, and a clear legal duty on the part of the respondents to perform the act requested. State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 399 N.E.2d 66. Absent a clear legal duty imposed upon respondent Judge Demis to appoint counsel chosen by relators, Butler and Bower, the writs of mandamus will be denied. A review of the applicable law reveals no such duty on the part of respondent.

It is unquestioned that relators, as indigent parties to proceedings in which permanent termination of their parental rights is sought, are (1) entitled to counsel, and (2) entitled to counsel appointed for them at county expense. Juv.R. 4(A) unequivocally provides these rights. ¹ R.C. 2151.352 also provides indigent parents who are parties to juvenile proceedings with the right to be represented by counsel appointed pursuant to R.C. Chapter 120. Specifically, R.C. 2151.352 provides in part:

"A child, his parents, custodian, or other person in loco parentis of such child is entitled to representation by legal counsel at all stages of the proceedings and if, as an indigent person, he is unable to employ counsel, to have counsel provided for him pursuant to Chapter 120 of the Revised Code. * * * The court may continue the case to enable a party to obtain counsel or to be represented by the county public defender or the joint county public defender and shall provide counsel upon request pursuant to Chapter 120 of the Revised Code."

The issues for determination by this court, therefore, become whether, within R.C. Chapter 120, a clear legal duty is imposed upon the trial court to (1) appoint counsel, and (2) appoint counsel chosen by an indigent party.

Such a clear legal duty, if one exists, can be found only in R.C. 120.33. R.C. Chapter 120 provides for the establishment of state, county and joint county public defender programs, while R.C. 120.33 permits a county to establish an alternate system by which private counsel may be appointed by the court in lieu of a public defender. R.C. 120.33 provides in pertinent part:

"In lieu of using a county or joint county public defender to represent indigent persons in the proceedings set forth in division (A) of section 120.16 of the Revised Code, the county commissioners of any county may adopt a resolution to pay counsel who are either personally selected by the indigent person or appointed by the court."

R.C. 120.16(A), referred to in R.C. 120.33, establishes the types of proceedings in which a county public defender, and, therefore, private counsel appointed in lieu of the public defender, may be appointed by the court. ² As to the instant case, the relevant portions of R.C. 120.16(A) provide as follows:

"(1) The county public defender shall provide legal representation to indigent persons charged with the violation of a state statute that is a serious offense as defined in the rules of criminal procedure, and in postconviction proceedings as hereinafter defined.

" * * *

"(3) The county public defender shall represent, when designated by the court, juveniles, other than juveniles charged with the violation of a municipal ordinance, and all other persons, except persons charged with the violation of a municipal ordinance and persons whose competency is being, or is to be, determined by the probate court, in any proceeding, the outcome of which could result in the loss of liberty."

Since R.C. 120.33 provides for the appointment by the court of private counsel in only those proceedings which are specifically provided for in R.C. 120.16(A), the former section alone would not provide relators, Butler and Bower, with the right to court-appointed private counsel; neither relator is charged with a "serious offense" or involved in a proceeding which may result in the loss of liberty. R.C. 2151.352, however, specifically makes all juvenile proceedings, in which a party is found to be indigent, subject to the provisions of R.C. 120.33. Therefore, where a county has adopted a resolution for appointment of private counsel, the indigent parents of allegedly abused, neglected and dependent children have a right of representation by private counsel appointed pursuant to R.C. 120.33.

Tuscarawas County, in conjunction with Harrison and Carroll Counties, operates a joint county public defender program. Further, the county commissioners of Tuscarawas County have adopted a resolution providing a schedule of recommended fees for court-appointed counsel, in lieu of a public defender, in certain proceedings, including juvenile proceedings. Thus, in the cases sub judice, where the joint county public defender is not authorized under R.C. 120.16(A) to represent Butler and Bower, the relators have a right under R.C. 2151.352 and 120.33 to appointed private counsel.

It remains to be seen however, whether within this latter section a clear legal duty is imposed upon the court to appoint as counsel of record the attorney chosen by relators. Such duty must be found if the writs of mandamus are to issue.

Both the right of indigent parties to appointed counsel contained in R.C. 120.33(A) and the duty of the court to appoint counsel under R.C. 120.33(B) are stated in the alternative. These sections provide:

"(A) In such a county, an indigent person shall have the right to do either of the following:

"(1) To select his own personal counsel to represent him in any proceeding included within the provisions of the resolution:

"(2) To request the court to appoint counsel to represent him in such a proceeding.

"(B) The court having jurisdiction over the proceeding shall, after determining that the person is indigent and entitled to legal representation under this section, do either of the following:

"(1) By signed journal entry recorded on its docket, enter the name of the lawyer selected by the indigent person as counsel of record;

"(2) Appoint counsel for the indigent person if the person has requested the court to appoint counsel and, by signed journal entry recorded on its dockets, enter the name of the lawyer appointed for the indigent person as counsel of record." (Emphasis added.)

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