583 N.E.2d 1328 | Ohio Ct. App. | 1989
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *319
On April 29, 1986, the Trumbull County Court of Common Pleas found that appellee, the Trumbull County Board of Elections, violated R.C.
On May 27, 1986, appellee appealed the April 29, 1986 decision. On May 28, 1986, appellant filed a motion for attorney fees. On June 11, 1986, the lower court continued this motion for fees until this court's ruling. On November 3, 1986, this court affirmed the lower court's decision in case No. 3736, 1986 WL 476.
On December 21, 1988, the lower court denied appellant's motion for attorney fees and made findings of fact and conclusions of law.
On February 9, 1989, this court gave appellant permission to file his notice of appeal instanter.
Appellant assigns the following as error:
"1. The Court erred when it determined the Plaintiff-Appellant was not entitled to Attorney fees under O.R.C. §
"2. The Court erred when it found no entitlement to fees because the Defendant-Appellant were [sic] not the `initiating' party below.
"3. The Court erred when it found no entitlement to fees under O.R.C. §
"4. The Court erred when it found that Plaintiff-Appellant was not entitled to Attorney fees under 42 USCA § 1973l(e).
"5. The Court erred when it placed the burden of Proof herein upon the Plaintiff-Appellant."
In his first assignment of error, appellant argues that he was entitled to attorney fees under R.C.
"As used in this Chapter: *320
"(A) `State' means the state of Ohio, including, but not limited to, the general assembly, the supreme court, the offices of all elected state officers, and all departments, boards, offices, commissions, agencies, institutions, and other instrumentalities of the state of Ohio. `State' does not include political subdivisions.
"(B) `Political subdivisions' means municipal corporations, townships, counties, school districts, and all other bodies corporate and politic responsible for governmental activities only in geographic areas smaller than that of the state to which the sovereign immunity of the state attaches. * * *"
The lower court determined that appellee was not an entity contemplated within the term "state." In making this decision, the court referred to a letter from the Attorney General, addressed to appellant's counsel, which read as follows:
"I am in receipt of your letter concerning the matter referred to above. After reviewing the materials and relevant statutes, it is my conclusion that your lawsuit holds no implications for the Secretary of State. The Secretary is not a party; nor is he responsible for the actions of the Trumbull County Board of Elections. Moreover, pursuant to R.C.
While such a letter is not binding on this court, it is consistent with the analysis of a state "agency" found inSouth Community, Inc. v. State Emp. Relations Bd. (1988),
In his second assignment of error, appellant argues that the court erred when it found no entitlement to fees because the state was not the "initiating" party. This assignment is not well taken as was discussed in the first assignment herein regarding the board's status as a "state agency."
Even if the board of elections was found to be a "state agency," appellant is not entitled to relief because R.C.
"* * * The term `the matter in controversy' refers not to the original administrative action taken by a state agency, but rather to the subject matter of the litigation." Id. at syllabus.
The Highway Valets court stated, inter alia: "The wording of R.C.
Applying the holdings in Highway Valets, supra, in this case, appellant is not entitled to attorney fees pursuant to R.C.
In his third assignment of error, appellant argues that the court erred when it found no entitlement to fees pursuant to R.C.
R.C.
Finally, the prevailing party must file a motion for fees with the agency within thirty days after the order of the agency is entered in its journal. R.C.
In his fourth assignment of error, appellant argues that the court erred when it found that appellant was not entitled to attorney fees under Section 1973l(e), Title 42, U.S.Code. This assignment is not well taken.
Section 1973l(e), Title 42, U.S. Code provides for an award of attorney fees to a prevailing party in suits to enforce the voting guaranties of the
A review of the record shows that appellant's actions before the lower court included a writ of mandamus and an action for determination of legal status. No relief was sought under the Voting Rights Act, Section 1971 et seq., Title 42, U.S.Code. Those actions were based on violations of the "sunshine" law, *322
R.C.
In a subsequent writ of mandamus filed in this court on November 5, 1985, appellant made reference to constitutional violations. Although a review of that pleading reveals a specific reference to the
In his fifth assignment of error, appellant argues that the court erred in placing the burden of proof on appellant. This assignment is not well taken.
The record shows that the parties submitted this matter to the lower court with a stipulated joint appendix.
As discussed in the assignments herein, the only code section under which appellant may have been eligible for fees was R.C.
The judgment of the lower court is affirmed.
Judgment affirmed.
JOSEPH E. MAHONEY and FORD, JJ., concur.