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

• Decision Date: 24 August 1994
• Docket Number: 93-634,Nos. 93-473,s. 93-473
• Citation: 637 N.E.2d 311,70 Ohio St.3d 94
• Parties: The STATE ex rel. HILLYER, Judge, Appellee and Cross-Appellant, v. TUSCARAWAS CTY. BD. OF COMMRS. et al., Appellants and Cross-Appellees.
• Court: Ohio Supreme Court

Page 94

70 Ohio St.3d 94

637 N.E.2d 311

The STATE ex rel. HILLYER, Judge, Appellee and Cross-Appellant, v. TUSCARAWAS CTY. BD. OF COMMRS. et al., Appellants and Cross-Appellees.

Nos. 93-473, 93-634.

Supreme Court of Ohio.

Submitted April 5, 1994.

Decided Aug. 24, 1994.

[637 N.E.2d 312] 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 order and to cease impairing the daily operations and administration of the Tuscarawas County Court.

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 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.

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 [637 N.E.2d 313] 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.

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 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.

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 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 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.

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.

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.

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.

This cause is before the court upon an appeal and cross-appeal from the judgment of the court of appeals.

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

Syler, Redinger, Traver & Fox and Thomas W. Fox, Dover, for appellants and cross-appellees.

PER CURIAM.

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.

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 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

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...