State ex rel. Union Cty. v. Parrott, 2005-1162.

• Citation: 2006 Ohio 92,843 N.E.2d 750,108 Ohio St.3d 302
• Decision Date: 12 January 2006
• Docket Number: No. 2005-1162.,2005-1162.
• Parties: The STATE ex rel. UNION COUNTY VETERANS SERVICE COMMISSION, et al. v. PARROTT, Judge, et al.
• Court: United States State Supreme Court of Ohio

Page 750

843 N.E.2d 750

108 Ohio St.3d 302

2006-Ohio-92

The STATE ex rel. UNION COUNTY VETERANS SERVICE COMMISSION, et al. v. PARROTT, Judge, et al.

No. 2005-1162.

Supreme Court of Ohio.

Submitted November 8, 2005.

Decided January 12, 2006.

David Yost, Special Prosecuting Attorney for Union County, and William J. Owen, Assistant Prosecuting Attorney, for relators.

Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., Michael L. Close, and Lauren S. Brill, Columbus, OH, for respondents.

PER CURIAM.

{¶ 1} This is an original action for a writ of mandamus to compel common pleas court judges to comply with their statutory duty to appoint a member of a county veterans service commission.

{¶ 2} Relator Union County Veterans Service Commission is composed of five honorably discharged or honorably separated veterans who are residents of Union County and are appointed to five-year terms by a judge of the Union County Court of Common Pleas. Relator Max Amrine is the president of the commission, and relator Clarence Durban was a member of the commission serving as an American Legion representative, whose term expired on December 31, 2004.

{¶ 3} In September 2004, Amrine notified respondent Judge Richard Parrott of the Union County Court of Common Pleas that the judge needed to appoint someone to serve as the American Legion representative on the commission upon the expiration of Durban's term on December 31, 2004. On November 1, 2004, the commission submitted to Judge Parrott a list of recommended candidates for appointment to fill the imminent American Legion vacancy.

{¶ 4} Judge Parrott did not appoint any qualified candidate to serve as American Legion representative on the commission upon the expiration of Durban's term. Judge Parrott, in letters dated December 18, 2003, May 4, 2004, and July 27, 2004, asserted that his refusal was based upon a disciplinary advisory opinion.

{¶ 5} On December 31, 2004, Durban's term expired, creating a vacancy in the commission. In 2005, the commission requested that respondent Judge Charlotte Eufinger of the Union County Court of Common Pleas, Probate and Juvenile Division, make the appointment, but like Judge Parrott, she refused.

{¶ 6} On June 29, 2005, relators, the commission, Amrine, and Durban, filed this action for a writ of mandamus to compel Judge Parrott or Judge Eufinger to appoint a representative to the commission. On July 20, 2005, respondents answered. On July 26, this case was referred to mediation. On October 20, the case was returned to the regular docket.

{¶ 7} This cause is now before us for our determination under S.Ct.Prac.R. X(5) whether dismissal, an alternative writ, or a peremptory writ is appropriate. "[I]f the pertinent facts are uncontroverted and it appears beyond doubt that [the relator] is entitled to the requested writ, we will issue a peremptory writ of mandamus." State ex rel. Highlander v. Rudduck, 103 Ohio St.3d 370, 2004-Ohio-4952, 816 N.E.2d 213, ¶ 8.

{¶ 8} Relators claim entitlement to a writ of mandamus to compel the common pleas court judges to appoint a member to the commission. In order to be entitled to the requested writ, relators must establish a clear legal right to compel the common pleas court judges to make the appointment, a corresponding clear legal duty on the part of the judges to appoint a member, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 10.

{¶ 9} "In mandamus proceedings, the creation of the legal duty that a relator seeks to enforce is the distinct function of the legislative branch of government, and courts are not authorized to create the legal duty enforceable in mandamus." State ex rel. Lecklider v. School Emp. Retirement Sys., 104 Ohio St.3d 271, 2004-Ohio-6586, 819 N.E.2d 289, ¶ 23. For appointment of county veterans service commission members, the General Assembly enacted R.C. 5901.02, which provides the following procedure:

{¶ 10} "In each county there shall be a commission known as `the veterans service commission.' Except as provided in section 5901.021 of the Revised Code, the commission shall be composed of five residents of the county appointed to five-year terms by a judge of the court of common pleas. * * *

{¶ 11} "Each member of the commission appointed under this section shall be an honorably discharged or honorably separated veteran. * * * Such appointments shall be made from lists of recommended persons, in the manner specified in the following paragraph. One person shall be a representative recommended by the American Legion; one person shall be a representative recommended by the Veterans of Foreign Wars; one person shall be a representative recommended by the Disabled American Veterans; one person shall be a representative recommended by the AMVETS; and one person shall be a representative recommended by the Military Order of the Purple Heart of the U.S.A., the Vietnam Veterans of American, or the Korean War Veterans Association. * * *

{¶ 12} "On or before the fifteenth day of October of each year, the appointing judge shall notify each post or chapter of each organization within the county from which the member may or must be appointed that it may submit a list containing three recommendations of persons who are eligible for appointment. If the judge does not receive any recommendations within sixty days after providing the required notification, the judge may appoint any qualified veteran to represent the veteran community. The judge shall make the appointment on or before the fifteenth day of January each year. Any vacancy in a membership appointed under this section shall be filled in the same manner as the original appointments.

{¶ 13} "Beginning in the year 2000, appointment of members of the commission under this section shall be made as follows:

{¶ 14} "(A) Appointments for members to represent the American Legion shall be made for terms to commence in years ending in zero and five." (Emphasis added.)

{¶ 15} We have recognized that "R.C. Chapter 5901 provides for a comprehensive plan of services and benefits to needy veterans of the armed forces. Pursuant to this chapter, veterans service commissions in each county throughout the state are...