State ex rel. Dreamer v. Mason
| Decision Date | 02 September 2010 |
| Docket Number | No. 93949.,93949. |
| Citation | 938 N.E.2d 1078,2010 -Ohio- 4110 |
| Parties | The STATE ex rel. DREAMER et al., v. MASON, Pros. Atty., et al. |
| Court | Ohio Court of Appeals |
Synenberg & Associates, L.L.C., Roger M. Synenberg, and Dominic J. Coletta, Cleveland, for relator Kathleen Dreamer.
Argie, D'Amico & Vitantonio, and Dominic J. Vitantonio, Mayfield Village, for relator Rosie Grier.
Rotatori Bender Co., L.P.A., Robert J. Rotatori, and Richard L. Stoper, Jr., Cleveland, for relator Jacqueline Maiden.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Charles E. Hannan Jr. and Lisa Reitz Williamson, Assistant Prosecuting Attorneys, for respondents.
*423 {¶ 1} Relators, Kathleen Dreamer, Rosie Grier, and Jacqueline Maiden, filed a complaint for a writ of mandamus against respondents, the Cuyahoga County prosecuting attorney and the Cuyahoga County Board of Commissioners.
{¶ 2} In 2004, Dreamer, Grier, and Maiden were employees of the Cuyahoga County Board of Elections ("BOE"). After the 2004 general election, the BOE was requested to perform a recount of votes in the presidential race. At the time of the recount, Maiden was the elections coordinator,Dreamer was the manager of the ballot department, and Grier was the assistant manager of the ballot department. According to the director of the BOE, Michael Vu, the BOE staff was advised by the prosecutor's office to conduct the recount using the same procedures they had used in past recounts.
{¶ 3} In December 2004, the BOE met to certify the results of the recount. During that meeting, information was disclosed suggesting that the BOE had not conducted the recount in accordance with Ohio law. In January 2005, the Green and Libertarian parties requested that respondent, the prosecuting attorney for Cuyahoga County, William Mason ("the prosecutor"), to investigate. Because of his statutory obligation to represent the BOE, the prosecutor recused himself from any investigation of the 2004 recount. Ultimately, the Cuyahoga County Court of Common Pleas appointed Erie County prosecuting attorney, Kevin Baxter, as special counsel in the matter.
{¶ 4} In August 2005, an assistant prosecuting attorney informed the BOE that subpoenas were being issued to the BOE staff. Director Vu of the BOE asked that the prosecutor request special counsel to provide legal assistance, at a *424 minimum, to explain the grand-jury process to those receiving subpoenas. The prosecutor did not provide any further legal counsel to the BOE or relators on any matter regarding the recount and did not apply for the appointment of independent counsel.
{¶ 5} Relators were indicted for election-law violations in 2005 and 2006. The propriety of these charges is not before this court in this mandamus action. Rather, it is the statutory right to legal representation under R.C. 309.09(A) and 305.14(A) that is involved.
{¶ 6} After relators were indicted, they obtained their own independent counsel. Counsel for Dreamer repeatedly asked the BOE to ask respondents to apply to the court of common pleas to authorize respondent Cuyahoga County Board of Commissioners ("the commissioners") to employ him as legal counsel for relators. Maiden's counsel also requested that the BOE apply to the court to authorize the commissioners to pay Maiden's legal fees.
{¶ 7} The BOE intended to seek the appointment of independent counsel for relators because it believed that the indictments were the direct result of the employees performing their official duties during the recount of the 2004 presidential election. Despite several requests by the BOE to the prosecutor and the commissioners, respondents did not apply to the court of common pleas for the appointment of independent counsel to represent relators. Respondents contend that because relators were indicted on criminal charges for violating Ohio election laws, the prosecutor could readily find that relators' conduct did not constitute a well-intended attempt to perform an official duty. We disagree.
{¶ 8} Relators have submitted affidavits attesting that BOE members, during two executive sessions, unanimously committed and agreed that the BOE would pay relators' legal fees and expenses if they were not convicted of any criminal conduct. It is also averred that an assistant county prosecutor informed BOE members that the county would pay the indicted employees' legal fees only if they were found not guilty. It is clear that relators have relied on these representations in obtaining independent legal counsel in the criminal proceedings without further pursuing the appointment of counsel.
{¶ 9} Relators filed this action in mandamus on September 18, 2009, requesting that this court order (1) respondents tomake application to the Cuyahoga County Court of Common Pleas for the retroactive appointment of independent counsel or, in the alternative, the court to appoint counsel for relators directly and (2) the commissioners to pay relators' legal expenses incurred by defending themselves against the criminal charges. Relators also request postjudgment interest, attorney fees and costs, and other appropriate relief.
*425 {¶ 10} Respondents filed a summary-judgment motion, arguing that for a variety of reasons, relators' writ of mandamus should be denied. After reviewing the facts of the case and the law, we deny respondents' summary-judgment motion and grant the relief requested in the complaint.
{¶ 11} In order for this court to issue a writ of mandamus, relators must establish that they have a clear legal right to the requested relief, respondents have a clear legal duty to perform the requested relief, and there is no adequate remedy at law. State ex rel. Eshleman v. Fornshell, 125 Ohio St.3d 1, 2010-Ohio-1175, 925 N.E.2d 609, ¶ 20. Moreover, mandamus is an extraordinary remedy that is to be exercised with caution and only when the right is clear . State ex rel. Williams v. Brown (1977), 52 Ohio St.2d 13, 15, 6 O.O.3d 79, 368 N.E.2d 838.
{¶ 12} R.C. 309.09(A) confers upon the prosecuting attorney the following responsibilities: (Emphasis added.) R.C. 309.09(A).
{¶ 13} R.C. 305.14(A), to which R.C. 309.09(A) refers, sets forth the procedure by which legal counsel other than the prosecuting attorney may be hired to advise or represent a county board or officer at the county's expense. The statute provides as follows: "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." (Emphasis added.) R.C. 305.14(A).
{¶ 14} It is undisputed in the instant case that respondents failed to apply for authorization of independent counsel for relators. We now turn to whether respondents' failure to make the application on relators' behalf entitles relators to relief in mandamus.
{¶ 15} At the onset of this action, relators and respondents proceeded under the presumption that relators were county officers entitled to legal representation at the county's expense. At this court's request, the parties briefed the issue *426 whether relators were county officers in light of State ex rel. Columbus Blank Book Mfg. Co. v. Ayres (1943), 142 Ohio St. 216, 27 O.O. 176, 51 N.E.2d 636. After review, we distinguish Ayres and hold that under the plain language of R.C. 309.09(A) and 305.14(A), relators should have been considered county officers.
{¶ 16} In Ayres, the Ohio Supreme Court considered the issue whether membersof a county board of elections were answerable to the county auditor or the secretary of state regarding the payment procedure for "pollbooks and tally sheets which were used in the [1941] general election." Id. at 217, 27 O.O. 176, 51 N.E.2d 636. Although the Ayres court determined that members of a county board of elections perform state, rather than county, functions, Ayres is distinguishable from the instant case for the following reasons: Ayres concerned board members, while this case concerns individuals who worked for the board, and Ayres was decided in 1943, ten years before R.C. 309.09 and 305.14 were enacted in 1953. Thus, the Ayres court did not consider these statutes in reaching its conclusion. See also State v. Rousseau, 159 Ohio App.3d 34, 2004-Ohio-5949, 822 N.E.2d 847, ¶ 20, quoting Ohio Ethics Commission, Advisory Opinion No. 93-004 ().
{¶ 17} The first element that relators must establish in a mandamus action is that they have a right to relief. It is clear that relators are not entitled to representation by the prosecutor's office under R.C. 309.09, because of the conflict of interest inherent in concurrently defending a party and prosecuting that same party. Relators argue that they are entitled to representation under R.C. 305.14, which allows appointment of, and payment for, outside counsel under the following circumstances: "The court of common pleas, upon the application of the prosecuting attorney and the board of county commissioners, may authorize the board to...
To continue reading
Request your trial
- The State Ex Rel. Dreamer v. Mason
-
Telb v. Lucas Cnty. Bd. of Cnty. Comm'rs
... ... State ex rel. Dreamer v. Mason, 189 Ohio App.3d 420, 2010-Ohio-4110, 938 N.E.2d ... ...