In re RETAINING VORYS, SATER, SEYMOUR AND PEASE, L.L.P., AS SPECIAL COUNSEL.
No. 10 MA 167
Court of Appeals of Ohio, Seventh District, Mahoning County
Decided Feb. 11, 2011
[Cite as In re Retaining Vorys, Sater, Seymour & Pease, L.L.P., as Special Counsel, 192 Ohio App.3d 357, 2011-Ohio-640.]
{128} Again, we need not address this assignment of error because “[a]n order denying a motion for summary judgment is not a final appealable order.” Id.
{129} Accordingly, we find appellants’ sixth assignment of error not well taken.
VIII. CONCLUSION
{130} We conclude that the city is a political subdivision subject to sovereign immunity. However, this case involves a proprietary function, and none of the immunity defenses to liability under
{131} We further find that the trial court erred in holding that the immunity defenses extended to appellants’ writ of mandamus. The trial court must determine whether the city appropriated appellants’ properties.
{132} Therefore, based upon the foregoing, the judgment of the Huron County Common Pleas Court is reversed. Appellee is ordered to pay the costs of this appeal pursuant to
Judgment reversed.
PIETRYKOWSKI and SINGER, JJ., concur in judgment only.
DEGENARO, Judge.
{1} Appellants, Mahoning County Prosecutor Paul J. Gains, the Mahoning County Prosecutor‘s Office, Assistant Mahoning County Prosecutor Gina Bricker, and the Mahoning County Board of Commissioners, appeal the judgment of the Mahoning County Court of Common Pleas denying their application to appoint special counsel to represent the Mahoning County Prosecutor‘s Office and the board of commissioners in two public-records-request mandamus actions currently pending before the Ohio Supreme Court.
{2} The primary issue in this appeal is whether, upon joint application of both the prosecuting attorney and the county commissioners for outside counsel pursuant to
{3} First, this appeal is largely moot, as the sole basis for the application for separate counsel was a conflict between the parties, and the underlying mandamus action against the commissioners and Assistant Prosecutor Bricker was
Facts and Procedural History
{4} On October 14, 2010, appellant Gains and appellant Mahoning County Board of Commissioners filed an application to appoint special counsel for the purpose of representing them in two mandamus actions then pending before the Ohio Supreme Court. Those mandamus cases involve public-records requests. In the first mandamus action, appellant board of commissioners and appellant Bricker, an assistant county prosecutor, are named as respondents. In the second mandamus action, appellant Mahoning County Prosecutor‘s Office and appellant Gains are named as respondents. During the pendency of this appeal, the first mandamus action was dismissed.
{5} The only reason given in the application for the need to appoint outside counsel was that Gains had “determined a conflict exists given that he as the elected prosecutor and members of his staff are named in both [mandamus] suits as parties.” Attached to the application were copies of the two mandamus complaints and the board‘s October 14, 2010 resolution, approved by a vote of two to one, which appointed the firm of Vorys, Sater, Seymour and Pease, L.L.P., to handle both mandamus actions, and resolved to join with Gains in filing an application to the common pleas court pursuant to
{6} The board stated the reason for the application in the resolution in the following clause:
{7} “WHEREAS, the Mahoning County Prosecutor has determined that a conflict exists and it is necessary for the Board and the members of the Mahoning County Prosecutor‘s Office to have outside counsel in the Mandamus Cases given that the elected prosecutor and members of his staff are named in both suits as parties.”
{8} The resolution also set the law firm‘s compensation for the two cases, approving “$290.00 to $525.00 per hour for partners, from $165.00 to $320.00 per hour for associates, and from $110.00 to $230.00 per hour for paralegals not to
{9} Appellants filed a Civ.R. 60(B) motion to vacate the judgment, in which they claimed that (1) the court lacked discretion to set compensation of outside counsel, (2) choice of counsel lay solely with the board of commissioners, (3) the court mistakenly concluded that no conflict exists, and (4) even if there was no conflict, the court lacks jurisdiction to refuse the request of the board for outside counsel when the prosecutor joins in the application. Attached as exhibits to the motion to vacate were judgment entries from other cases in which the common pleas court had approved the appointment of outside counsel, including the Vorys firm, for a variety of matters including public securities, taxpayer exemptions, and related specialized legal matters.
{10} The common pleas court overruled the motion to vacate on November 4, 2010. Appellants timely appealed that judgment, along with the October 21 judgment, to this court on November 9, 2010.
Mootness
{11} Before turning to the merits of this appeal, we must first address whether this appeal is moot. “A case may be moot when there is no longer a ‘live’ issue to be determined, or when ‘the parties lack a legally cognizable interest in the outcome.’ Allen v. totes/Isotoner Corp., 123 Ohio St.3d 216, 2009-Ohio-4231, 915 N.E.2d 622, at ¶ 17, quoting Los Angeles Cty. v. Davis (1979), 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642.” State ex rel. Cordray v. Basinger, 7th Dist. No. 09 MA 119, 2010-Ohio-4870, 2010 WL 3904152, at ¶ 80.
{12} Here, an individual filed public-records requests with the commissioners and Gains in his capacity as county prosecutor as well as with Gains‘s office. Bricker was the assistant prosecutor assigned to respond to the records request directed to both offices. An impasse was reached, and two separate mandamus actions were filed in the Ohio Supreme Court, the first against the commissioners and Bricker, and the second against the prosecutor‘s office and Gains. On January 5, 2011, upon the relator‘s application, the first mandamus action was dismissed. State ex rel. McCaffrey v. Mahoning Cty. Bd. of Commrs., 127 Ohio St.3d 1492, 2011-Ohio-4, 939 N.E.2d 189. Accordingly, this appeal is certainly moot as to the commissioners and Bricker, and the trial court‘s decision is affirmed as to them.
{13} The only mandamus action remaining is against Gains and his office. Whether this appeal is also moot with regard to them is a closer call, as the sole basis of the commissioners’ and Gains‘s application for appointment of outside
Authority to Deny Application
{14} In the first of three assignments of error, Gains asserts:
{15} “The common pleas court lacked discretion or authority to deny the application for the appointment of counsel made by the Board of County Commissioners and joined in by the County Prosecuting Attorney under
{16} As an overarching matter, the appointment of outside counsel pursuant to
{17} “The prosecuting attorney shall be the legal adviser of the board of county commissioners, board of elections, and all other county officers and boards, including all tax-supported public libraries, and any of them may require written opinions or instructions from the prosecuting attorney in matters connected with their official duties. The prosecuting attorney shall prosecute and defend all suits and actions which any such officer or board directs or to which it is a party, and no county officer may employ any other counsel or attorney at the expense of the county, except as provided in section
{18}
{19} Gains argues that
{20} “(A) 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.)
{22} Nonetheless, Gains argues that the word “may” has a more limited meaning, that it grants the court the discretion to appoint counsel only when the prosecutor refuses to recognize a conflict or the board refuses to pass a resolution authorizing the appointment of counsel. However, there is nothing in the language of the statute to indicate that the common pleas court‘s authority is limited in this way. Nor does Gains supply any case law supporting his interpretation. Further, the Ohio Supreme Court has noted that “the board‘s appointment of special counsel pursuant to * * *
{23} Further, Gains argues that the common pleas court‘s application of
{24} “An appellate court will not consider any error, including constitutional error, which counsel for a complaining party could have, but failed to call to the trial court‘s attention at a time when such error could have been avoided by the trial court.” In re 730 Chickens (1991), 75 Ohio App.3d 476, 488, 599 N.E.2d 828, citing State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, 170, 522 N.E.2d 524; State v. Awan (1986), 22 Ohio St.3d 120, 122, 22 OBR 199, 489 N.E.2d 277. See also Howard v. Seidler (1996), 116 Ohio App.3d 800, 815, 689 N.E.2d 572.
{26} More importantly, however, once the application was denied, Gains failed to raise the separation-of-powers argument in his Civ.R. 60(B) motion. He could have called that alleged error to the attention of the trial court by that motion, yet he failed to do so. Thus, Gains has waived this argument on appeal. And even if it were not waived, the separation-of-powers argument is meritless.
{27} Gains contends that the common pleas court‘s application of the statute in this case violates the separation-of-powers doctrine and not that the statute on its face is unconstitutional. In other words, Gains argues that the common pleas court‘s broad interpretation of the statute runs afoul of the Constitution. Gains insists that pursuant to
{28} Upon a plain reading of the statute, the legislature made a conscious decision to include the common pleas court as a check on the process. The concepts of checks and balances, as well as separation of powers, are fundamental components of the theory of limited government engrained in the constitutional structure of Ohio and the United States. Significantly:
{29} “Section 1 of Article X of the Ohio Constitution authorizes the General Assembly by general law to delegate to boards of county commissioners limited legislative power relative to the government of counties * * *.” (Emphasis added.) Blacker v. Wiethe (1968), 16 Ohio St.2d 65, 45 O.O.2d 367, 242 N.E.2d 655, at paragraph one of the syllabus.
{30} Since the county has only the legislative power granted to it by the Ohio legislature, it follows that the legislature can place limits on that power. Thus, the wording of
{32} “Whenever upon the written request of the prosecuting attorney, the board of county commissioners of any county deems it advisable, it may employ legal counsel and the necessary assistants upon such terms as it may deem for the best interests of the county, for the performance of the duties herein enumerated. Such counsel shall be the legal adviser of the board of county commissioners and of all other county officers, of the annual county board of equalization, the decennial county board of equalization, the decennial county board of revision, and the board of review; and any of said boards and officers may require of him written opinions or instructions in any matters connected with their official duties. He shall prosecute and defend all suits and actions, which any such officer or board may direct, or, to which it or any of said officers may be a party, and shall also perform such duties and services as are now required to be performed by prosecuting attorneys under Sections 799, 1277, 1278 a and 3977 of the Revised Statutes, and as may at any time be required by said board of county commissioners.” Revised Statutes 845, 99 Ohio Laws 337, 338.
{33} By the time the Revised Code was enacted in 1953, the statute had been amended to read:
{34} “If it deems it for the best interests of the county, 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 board or 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 county board or officer is a party or has an interest, in its official capacity.” Former R.C. 305.15, 1953 H.B. No. 1.
{35} The next substantive change to the statute came in 1978. 1978 Am.H.B. No. 316 amended
{36} “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.”
{37} This language is identical to the current version of
{39} The statute in effect today still requires application to the court of common pleas, and grants the court the power to authorize such an appointment. In his supplemental brief before this court, Gains makes much of the fact that the current version omits the language regarding the “best interests of the county.”
{40} Specifically, Gains contends:
{41} “Obviously, the language ‘If it deems it for the best interests of the county’ was removed from the statute. That prior language appears to have given the common please [sic] court discretion to determine whether the appointment of counsel was in the best interest of the county. Now, with the amendments that discretion is left solely to the Board of Commissioners and the Prosecutors. Consequently, only when the prosecutor refuses to recognize a conflict ‘may’ the common pleas court step in and authorize the appointment of counsel.”
{42} However, Gains ignores the fact that the phrase “best interests of the county” was present in the statute long before the addition of the common pleas court as part of the process. See Revised Statutes 845. Further, if the legislature truly intended to deprive the common pleas court of its discretionary authority, the legislature would have removed the application process to the common pleas court from the statute.
{43} Thus, the legislature made a conscious decision to include the common pleas court as a check on the process. The Ohio Constitution authorizes the General Assembly to delegate to boards of county commissioners limited legislative power. Therefore, adding judicial oversight to the commissioners’ and Gains‘s application for outside counsel does not violate the separation-of-powers doctrine.
{44} Gains also argues within this assignment of error that the common pleas court has no authority to select the specific law firm to provide services for the board, or to set compensation. One of the reasons the court gave in its initial denial of the application was that the “proposed hourly rate and suggested total expenditure for outside counsel proposed by the Prosecutor to be excessive and unacceptable given the legal work involved in public records case.” Gains argues
{45} While this may be true, and the common pleas court conceded as much in its denial of the motion to vacate, it does not change the fact that the common pleas court has the threshold discretion to accept or deny the application for outside counsel pursuant to
Authority to Reject Prosecutor‘s Determination of a Conflict
{46} Gains asserts in the second assignment of error:
{47} “The common pleas court lacked discretion or authority to reject the Prosecutor‘s determination that a conflict of interest exists that precludes him from representing both his office and the Board of Mahoning County Commissioners.”
{48} We recognize that a conflict of interest is not a prerequisite to the appointment of outside counsel. There are many cases, such as those cited by Gains in the motion to vacate, that do not involve a conflict. The need for outside counsel can also arise when the county must handle extremely technical matters, such as public securities law, complex taxation issues, etc. See also Hamilton Cty. Court of Common Pleas, 126 Ohio St.3d 111, 2010-Ohio-2467, 931 N.E.2d 98, at ¶ 15 (special counsel appointed to assist the county board of commissioners with legal issues stemming from Cincinnati riverfront development and stadium project, when the board had concluded that the involvement of special counsel was essential to protect the county‘s interests, given the specialized knowledge and experience required to manage the complex legal aspects of the project).
{49} Normally, the issue of a conflict of interest arises when the prosecutor, citing a conflict, refuses to make an application pursuant to
{50} This case presents a unique situation in that a conflict of interest was cited in the application as the sole reason for the appointment of outside counsel. Inasmuch as the common pleas court has the statutory authority and discretion to approve the application, it necessarily follows that it is within the common pleas
{51} None of the cases cited by Gains supports his argument that once the prosecutor acknowledges a conflict of interest, the common pleas court lacks the authority and discretion to even inquire into the existence of the conflict. A brief discussion of the actual holding in each cited case follows.
{52} In Seminatore, the Ohio Supreme Court held that “[a]pplication by both the prosecuting attorney and the board of county commissioners is a prerequisite to authorization by a court of common pleas pursuant to
{53} “While
{54} In State ex rel. Sartini v. Yost, 96 Ohio St.3d 37, 2002-Ohio-3317, 770 N.E.2d 584, the court held that the common pleas court lacked jurisdiction to order the county to pay for substitute counsel to represent the county auditor in the township‘s mandamus action against the auditor, when neither the prosecutor nor the board of county commissioners had filed an application for appointment of separate counsel and the auditor waived any conflict of interest by the prosecutor. The court stated:
{55} “[A]lthough courts have inherent power to regulate the practice of law before them and protect the integrity of their proceedings, see, e.g., Royal Indemn. Co. v. J.C. Penney Co., Inc. (1986), 27 Ohio St.3d 31, 33–34, 27 OBR 447, 501 N.E.2d 617, and courts also have jurisdiction, under
{56} In State ex rel. Trumbull Cty. Bd. of Elections v. Trumbull Cty. Bd. of Commrs., 11th Dist. No. 2009 TR 85, 2010-Ohio-2281, 2010 WL 2026075, the court
{57} Finally, in State ex rel. Gains v. Maloney, 102 Ohio St.3d 254, 2004-Ohio-2658, 809 N.E.2d 24, the court held that a probate court judge lacked the statutory or inherent authority to appoint outside counsel to represent him in a habeas corpus case, when no application had been made to the common pleas court by the commissioners and the prosecutor and when there was no conflict between the prosecutor and the probate court judge. Id. at ¶ 11-16. Further, the court expressly noted that common pleas courts “have jurisdiction, under
{58} Thus, the common pleas court in this case had the authority to determine the propriety of Gains‘s claimed conflict of interest. Accordingly, Gains‘s second assignment of error is meritless.
Propriety of Court‘s Denial of Application
{59} In the third and final assignment of error, Gains asserts:
{60} “Alternatively, in the event this Court finds the common pleas court has discretion or authority to review the Mahoning County Board of Commissioners and Mahoning County Prosecutor‘s Application for counsel under
{61} As discussed,
{62} Gains has provided us with no case law, nor has our research revealed any, that discusses the propriety of a common pleas court‘s denial of a joint application for outside counsel pursuant to
{63} Here, the common pleas court gave several reasons for denying the application. First, Gains did not demonstrate a conflict. Second, Gains did not
{64} The common pleas court did not abuse its discretion in determining that there was no conflict. As mentioned, a conflict typically arises when the prosecuting attorney is faced with representing two county boards or officers whose interests are adverse. For example, Trumbull Cty. Bd. of Commrs., 2010-Ohio-2281, 2010 WL 2026075, concerned litigation between the county board of elections and county commissioners over the board of election members’ entitlement to health insurance in light of a newly amended statute. The prosecutor sided with the commissioners. Thus, representing both boards clearly presented a conflict for the prosecutor. Id. at ¶ 25.
{65} In State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs. (2000), 90 Ohio St.3d 55, 734 N.E.2d 811, the underlying litigation concerned a disagreement between the probate court and board of commissioners over the probate court‘s appropriation orders. Again, clearly this presented a conflict for the county prosecutor. Id. at 65.
{66} Conversely, in Maloney, 102 Ohio St.3d 254, 2004-Ohio-2658, 809 N.E.2d 24, the court concluded that it was not a conflict for the county prosecutor to represent a county probate judge in a habeas corpus suit against the probate judge when unrelated budgetary conflicts between the judge and the commissioners had been resolved. Id. at ¶ 15.
{67} Gains is claiming a conflict of interest because the commissioners, Gains, and his staff are named respondents in the mandamus cases. Much of this argument is moot, as the mandamus action against the commissioners and Bricker has been dismissed.
{68} But even if both mandamus actions were still pending, there is not an inherent conflict created by Gains representing the board in a records-request case while concurrently defending against one himself. As the common pleas court correctly noted, their interests are actually aligned, as best demonstrated by the fact that Bricker oversaw the response to the records request for both the commissioners and the prosecutor‘s office before the parties reached an impasse and the two mandamus actions were filed. Moreover, Gains has represented himself, along with the county administrator, in a previous public-records-request mandamus action. State ex rel. McNally v. Tablack, Mahoning C.P. No. 08 CV 3008. Gains failed to demonstrate to the common pleas court why the present mandamus actions are any different. Gains is trying to argue that because of the separate criminal proceedings, the Supreme Court mandamus actions are much more than ordinary public-records-request cases and that they have far greater implications. However, Gains should have made that argument to the common pleas court, instead of raising it for the first time on appeal.
{70} Prof.Cond.R. 3.7 provides:
{71} “(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless one or more of the following applies:
{72} “(1) the testimony relates to an uncontested issue;
{73} “(2) the testimony relates to the nature and value of legal services rendered in the case;
{74} “(3) the disqualification of the lawyer would work substantial hardship on the client.
{75} “(b) A lawyer may act as an advocate in a trial in which another lawyer in the lawyer‘s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or 1.9.
{76} “(c) A government lawyer participating in a case shall not testify or offer the testimony of another lawyer in the same government agency, except where division (a) applies or where permitted by law.”
{77} Official Comment 1 to Prof.Cond.R. 3.7 sheds light on its purpose: “Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client.” Yet here Gains and the client are one and the same. Gains responded to the public-records requests directed to his office. As custodian of the records, Gains provided some of them, objected to the request for others, and contended that still others did not exist. We agree with the conclusion of the court in Horen v. Toledo Pub. School Dist. Bd. of Edn., 174 Ohio App.3d 317, 2007-Ohio-6883, 882 N.E.2d 14, at ¶ 32 (“State courts have also held that this type of disciplinary rule is not applicable to self-representation. We agree“).
{78} Accordingly, to the extent that Gains might be called to testify about the records or about his response to the requests, we agree with the trial court that there is no ethical reason why a member of Gains‘s civil-division staff could not properly represent him. See id. at ¶ 31.
{79} And the fact that the relator in the mandamus cases is the attorney for several criminal defendants in a criminal case does not create a conflict either. Although Gains may have played a role in the initial investigation, a special prosecutor was later appointed. As aptly noted by Justice Douglas in State ex
{80} “As a practical matter, for example, any time a prosecutor initiates an investigation in to the activities of a county commissioner, board, officer, library or township officer, is the prosecutor to be foreclosed from serving that respective entity‘s other public-related legal needs? If this practice would become the rule, the prosecutor would be effectively paralyzed in all but investigative and prosecutorial endeavors. This result was never the aim of
{81} Finally, the common pleas court took issue with the proposed cost of outside counsel. Even though, as the court conceded, it appears it is within the province of the commissioners to set compensation, it remains that the common pleas court, exercising its discretion when reviewing an application, can look into practical matters such as cost to the county.
{82} For all these reasons, the common pleas court did not abuse its discretion in denying the application for outside counsel. Accordingly, Gains‘s third assignment of error is meritless.
Conclusion
{83} All of the assignments of error are meritless. The trial court had the authority to determine whether a conflict existed, as well as to review the application. Pursuant to the Ohio Constitution, the county has only the legislative power granted to it by the Ohio legislature. Moreover, the legislature can place limits on that power. Because the legislature amended
Judgment affirmed.
DONOFRIO and VUKOVICH, JJ., concur.