THE STATE EX REL. HAMILTON COUNTY BOARD OF COMMISSIONERS v. HAMILTON COUNTY COURT OF COMMON PLEAS ET AL.
No. 2009-2068
Supreme Court of Ohio
Submitted April 20, 2010—Decided June 9, 2010
126 Ohio St.3d 111, 2010-Ohio-2467
{11} This is an original action for a writ of prohibition to prevent a common pleas court and 12 of its judges from terminating the board of county commissioners’ employment of special counsel, which had previously been approved by the court, and to vacate their order terminating the employment of special counsel. Because the common pleas court and the judges did not patently and unambiguously lack jurisdiction to do so, we deny the requested writ of prohibition.
I. Facts
A. Retainer of Special Counsel for the Cincinnati Riverfront-Development Project
{12} Since 1996, relator, Hamilton County Board of County Commissioners, and the city of Cincinnati have jointly planned and implemented a project for the redevelopment of Cincinnati‘s riverfront. Throughout the redevelopment efforts, the board has faced numerous complex legal challenges.
{13} During the 1990s, the county employed special counsel to assist in the riverfront project by performing title searches related to the acquisition of property for the construction of Paul Brown Stadium (the new football stadium), negotiating contracts to acquire property, negotiating a major redevelopment agreement with the city, and representing the county in subsequent redevelopment and related agreements.
{14} Before March 2000, the county prosecuting attorney and certain other counsel served as the board‘s counsel for the construction of Paul Brown Stadium. After an independent audit found that the new football stadium would have a $51 million cost overrun, the board decided to retain special counsel in the next phase of the riverfront-development project—the construction of the Great
{15} More specifically, in 1999, respondent Hamilton County Court of Common Pleas approved the joint application of the board of commissioners and the prosecuting attorney pursuant to
B. Joint Application to Continue Employment of Special Counsel
{16} In 2002, the board wished to continue the employment of special counsel to provide legal services to the county on riverfront-development and baseball-stadium issues. On December 11, 2002, the board adopted a resolution to join with the prosecuting attorney to apply to the court of common pleas for “continued authority to retain and compensate special counsel to assist Hamilton County” in matters related to the riverfront development and the new baseball stadium. The board also authorized the county administrator to execute a retainer agreement with special counsel. In its resolution, the board noted that “services to be provided by such special counsel shall supplement those services to be provided by the Prosecuting Attorney pursuant to statute and any other services as may be requested from time to time by Hamilton County, Ohio, its offices, boards, departments, employees or institutions, and such special counsel‘s services shall not be deemed an abrogation or derogation by the Prosecuting Attorney of any of the Prosecuting Attorney‘s statutory responsibilities.”
{17} On December 17, 2002, the then county prosecuting attorney filed a joint application on behalf of both himself and the board of county commissioners pursuant to
{18} Under the retainer agreement between the board and the law firm of Vorys, Sater, Seymour & Pease, L.L.P., special counsel was to provide legal services related to the riverfront and stadium issues, and the agreement could be terminated by either the board or special counsel. Like the board‘s resolution, the retainer agreement stated that special counsel‘s services would “supplement” the services to be provided by the prosecutor and would not be deemed an “abrogation or derogation” by the prosecutor of his statutory responsibilities.
{19} Pursuant to the court order approving the joint application and the retainer agreement, special counsel has continued its attorney-client relationship with the board by providing legal services on a variety of riverfront-development issues, including the defense of certain multimillion-dollar claims.
C. The Successor Prosecuting Attorney‘s Objection
{110} In December 2008, intervening respondent, Hamilton County Prosecuting Attorney Joseph T. Deters, submitted to the board a proposed order fixing the aggregate amount of compensation for the prosecutor‘s office. After the board recommended a budget for the prosecutor‘s office that was over $1 million less than he had requested, the prosecuting attorney sent a letter dated December 16, 2008, to the board in which he questioned the board‘s “preferential treatment of outside counsel.” Although the prosecutor conceded that special counsel “has a fine reputation and is both competent and professional,” he objected to the amount of money paid to the Vorys firm, which he claimed was over $12,000,000 since 2004, as well as the purported lack of oversight of the hours or work by the firm. The prosecuting attorney concluded that effective January 1, 2009, he was withdrawing his consent to the board‘s employment of outside counsel until the issues he raised were addressed to his satisfaction.
D. Ex Parte Common Pleas Court Proceeding
{111} On October 15, 2009, without the board‘s knowledge, direction, or consent, the prosecuting attorney and the chief of his office‘s civil division, James W. Harper, appeared at an administrative meeting of the judges of the Hamilton County Court of Common Pleas, with 13 of the judges being present. The prosecuting attorney requested that the judges sign an entry terminating the employment of special counsel effective January 1, 2010. This issue was not on the agenda and the judges did not have prior notice of it, but by tradition and at the discretion of the presiding judge, joint sessions of the common pleas court were not strictly limited to agenda items.
{112} According to the minutes of the meeting, the prosecuting attorney noted that a statute allowed the board of county commissioners “to hire outside counsel
{113} Twelve of the 13 judges present at the meeting signed the proposed entry, in which the common pleas court ordered that “the appointment and employment of special counsel under this Case No. M0201052 is terminated effective January 1, 2010.” The entry further provided, “Nothing in this Order prevents the Board of County Commissioners of Hamilton County, Ohio, and the Prosecuting Attorney of Hamilton County, Ohio, from seeking a new Order Authorizing the Appointment of Special Counsel upon such terms and conditions as may be mutually agreeable and in the public interest.” The only judge present at the meeting who did not sign the entry was the second successor to the judge who had signed the December 17, 2002 entry authorizing the continuing employment of special counsel. The court‘s practice is to assign matters in miscellaneous cases like case No. M0201052 to the administrative judge.
E. Subsequent Attempts to Vacate Order
{114} The board was notified of the order terminating the employment of special counsel after it was entered. The board requested that the prosecuting attorney seek to vacate the order because it was entered without the board‘s knowledge, direction, or consent, but the prosecuting attorney refused to do so. On October 21, the board requested that the court vacate the order, and at another administrative meeting a week later, the court refused to do so. After the board received a copy of the draft minutes of the court‘s October 15 administrative meeting, a final attempt to resolve the dispute with the prosecuting attorney was unsuccessful.
F. Prohibition Case
{115} On November 10, the board of county commissioners authorized two of its commissioners to institute a legal action to challenge the court‘s October 15 order terminating the employment of special counsel. Instead of appealing the order, the board filed this action on November 12 for a writ of prohibition to prevent respondents, the common pleas court and the 12 judges who signed the order, from terminating the relationship between special counsel and the board and to vacate the order terminating the appointment and employment of special counsel. The court of common pleas and judges filed a motion to dismiss the complaint. The prosecuting attorney‘s motion to intervene as a party respondent
{116} This cause is now before the court for our consideration of the merits.
II. Legal Analysis
A. Prohibition
{117} The board of county commissioners claims entitlement to a writ of prohibition to prevent the court of common pleas and 12 of its judges from proceeding pursuant to their October 15 entry ordering the termination of the appointment and employment of special counsel for the board and to order the court and the 12 judges to vacate their October 15 order.
{118} To be entitled to the requested writ of prohibition, the board must establish that (1) the common pleas court and the 12 judges who signed the challenged order have exercised or are about to exercise judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, ¶ 25. The common pleas court and judges exercised judicial power in the underlying case by ordering the termination of the appointment and employment of special counsel for the board that had previously been authorized by the same court.
{119} For the remaining requirements, “[i]f a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions.” State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12. The dispositive issue is whether the common pleas court and the 12 judges who signed the challenged order patently and unambiguously lacked jurisdiction to terminate the previously authorized employment of special counsel by the board.
B. Absence of a Patent and Unambiguous Lack of Jurisdiction
{120} Under
{22} Pursuant to
{123} Under one of the exceptions, the board of county commissioners can employ an attorney other than the prosecuting attorney “either for a particular matter or on an annual basis” without the approval of either the prosecutor or the court of common pleas, but the compensation shall be paid from the county general fund and “[t]he total compensation paid, in any year, by the board for legal services under this division shall not exceed the total annual compensation of the prosecuting attorney for that county.”
{124} For the remaining exception, which authorized the board‘s employment of special counsel here, the General Assembly enacted
{25} “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.”
{126} In construing
{127} The board of county commissioners asserts that the plain language of
{128} First, notwithstanding the express language of
{1129} Second, we have held that when statutory provisions confer jurisdiction on a court to approve the appointment of an official but fail to specify that the court has further jurisdiction over the appointment, the court has the authority to determine whether the continued appointment of the official is necessary, and upon determining that it is no longer necessary, it can order the official‘s discharge. State ex rel. Diehl v. Colwell (1931), 123 Ohio St. 535, 176 N.E. 117 (“Diehl I“). In Diehl I, the pertinent statutes, G.C. 10070, 10071, and 10072, now
{130} In Diehl I, we rejected the argument that because the statutory authority conferred on the probate court is restricted to a determination of whether there is a necessity for the appointment of the humane-society agent in the first instance, the court is vested with no further power once it approves the appointment:
{131} “However, while the term ‘appoint’ is used of the selection by the humane society, the approval of the * * * probate judge under these statutes certainly possesses greater vitality than a mere confirmation. No compensation can be paid the agent until after approval of the appointment. This is the specific provision of Section 10072 [now
{132} “* * * It is not logical that [this] power [to approve the appointment] should be limited to the determination of the necessity at the time of approval only. In the absence of limitation, the power to establish naturally includes the power to terminate the function. Hence we hold that the power given the probate judge under sections 10071 and 10072, General Code [now
{1133} Similarly, based on Diehl I, the mere fact that
{135} Fourth, the mere fact that the common pleas court and its judges did not provide notice to the board of county commissioners or its special counsel of the ex parte proceeding in which the prosecuting attorney requested termination of the order authorizing the employment of special counsel, while troubling and potentially remediable by appeal, did not patently and unambiguously divest the court and its judges of jurisdiction to terminate the employment. In State ex rel. Diehl v. Colwell, 124 Ohio St. 329, 178 N.E. 312 (“Diehl II“), we held that claims that the successor probate court judge‘s revocation of the appointment of the humane officer that had been approved by his predecessor was improper because of a lack of notice of the proceeding or journal entry to the officer, the humane society, and the board of county commissioners did not warrant modifying the holding of Diehl I that the revocation was effective and that the official should be ousted based on the successor judge‘s revocation order. We have similarly held that extraordinary relief in prohibition is not available to raise claims of lack of notice of the hearing or of the judgment. See Hughes v. Calabrese, 95 Ohio St.3d 334, 2002-Ohio-2217, 767 N.E.2d 725, ¶ 14; State ex rel. Ahmed v. Costine, 103 Ohio St.3d 166, 2004-Ohio-4756, 814 N.E.2d 865, ¶ 5.
{136} Finally, the board‘s claims about the improper assignment of the judges who executed the termination order or the res judicata effect of the 2002 entry authorizing the appointment of special counsel are not claims that patently and unambiguously divest the common pleas court and its judges of jurisdiction to enter the termination order. Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, ¶ 14 (claim of improper assignment of a judge cannot be raised in an extraordinary-writ action because party had adequate remedy by appeal to raise it); McGhan v. Vettel, 122 Ohio St.3d 227, 2009-Ohio-2884, 909 N.E.2d 1279, ¶ 29, quoting State ex rel. Soukup v. Celebrezze (1998), 83 Ohio St.3d 549, 550, 700 N.E.2d 1278 (“‘res judicata is not a basis for prohibition because it does not divest a trial court of jurisdiction to decide its applicability and it can be raised adequately by postjudgment appeal‘“).
{137} Therefore, the common pleas court and its judges did not patently and unambiguously lack jurisdiction to terminate the December 2002 order approving the joint application of the then prosecuting attorney and the board of county commissioners for the board to employ special counsel. The court‘s precedent in Diehl I and II arguably authorized the court‘s order terminating the appointment and employment of special counsel. Like those cases, the order terminating the appointment was made by a successor judge in an ex parte proceeding under statutory provisions that required court approval for the appointment but did not specify continuing authority for the court to revoke that approval and terminate the appointment.
III. Conclusion
{138} “In the absence of a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party contesting that jurisdiction has an adequate remedy by appeal.” State ex rel. Plant v. Cosgrove, 119 Ohio St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485, ¶ 5. Because the common pleas court and its judges did not patently and unambiguously lack jurisdiction to issue the order terminating the board‘s employment of special counsel, the board had an adequate remedy by a timely appeal from that order to raise its claims. The mere fact that this remedy may no longer be available because the board failed to timely pursue it does not entitle it to the requested extraordinary relief in prohibition. State ex rel. Estate of Hards v. Klammer, 110 Ohio St.3d 104, 2006-Ohio-3670, 850 N.E.2d 1197, ¶ 15. Therefore, we deny the writ because the board of county commissioners has not established its entitlement to the requested extraordinary relief.
{139} By so holding, “[w]e need not rule on the merits of [the board‘s jurisdictional claims], because our duty is limited to determining whether jurisdiction is patently and unambiguously lacking.” Goldberg v. Maloney, 111 Ohio St.3d 211, 2006-Ohio-5485, 855 N.E.2d 856, ¶ 45, quoting State ex rel. Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, 831 N.E.2d 1003, ¶ 28. This conclusion is consistent with our duty not to issue advisory opinions as well as “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.” State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51, quoting PDK Laboratories, Inc. v. United States Drug Enforcement Adm. (C.A.D.C.2004), 362 F.3d 786, 799 (Roberts, J., concurring in part and in judgment).
Writ denied.
PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
BROWN, C.J., not participating.
David A. Pepper and Todd B. Portune, for relator.
Porter, Wright, Morris & Arthur, L.L.P., Mark E. Elsener, Kathleen M. Trafford, and Michael A. Wehrkamp, for respondents Hamilton County Court of Common Pleas and its judges.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Thomas E. Grossmann and Colleen M. McCafferty, Assistant Prosecuting Attorneys, for intervening respondent Joseph T. Deters.
Peck, Shaffer & Williams, L.L.P., and Thomas A. Luebbers, urging granting of the writ for amicus curiae County Commissioners Association of Ohio.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Nick A. Soulas Jr., First Assistant, Civil Division, urging denial of the writ for amicus curiae Ohio Prosecuting Attorneys Association.