State ex rel. Hillyer v. Tuscarawas Cty. Bd. of Commrs. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Hillyer, Judge, Appellee and Cross-Appellant,
v. Tuscarawas Cty. Bd. of Commrs. et al., Appellants and
Cross-Appellees.
[Cite as State ex rel. Hillyer v. Tuscarawas Cty. Bd. of
Commrs. (1994), Ohio St.3d .]
Mandamus to compel county board of commissioners to pay
attorney fees of county court judge's action against
board, to compel board to provide suitable court
facilities for the county court, and to pay the salary of
a probation officer granted, when -- Mandamus to compel
appropriation of budget requests for the county court and
prevention of board's interference in the operation of the
county court denied, when.
(Nos. 93-473 and 93-634 -- Submitted April 5, 1994 -- Decided
August 24, 1994.)
Appeal and Cross-Appeal from the Court of Appeals for
Tuscarawas County, No. 92AP090064.
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 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 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.
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.
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 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.
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.
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, for
appellee and cross-appellant.
Syler, Redinger, Traver & Fox and Thomas W. Fox, 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 court would determine the
fees based upon statements received from the parties.
R.C. 305.14(A) provides:
"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."
"Application by both the prosecuting attorney and the
board of county commissioners is a prerequisite to
authorization by a court of common pleas pursuant to R.C.
305.14 of appointment of other counsel to represent a county
officer, except where the prosecuting attorney has a conflict
of interest and refuses to make application." State ex rel.
Corrigan v. Seminatore (1981), 66 Ohio St.2d 459, 20 O.O.3d
388, 423 N.E.2d 105, paragraph one of the syllabus. In those
cases where the prosecuting attorney has a conflict of interest
and refuses to make the application, mandamus will lie to
compel the application because the failure to apply constitutes
an abuse of discretion. State ex rel. Stamps v. Automatic Data
Processing Bd. of Montgomery Cty. (1989), 42 Ohio St.3d 164,
167, 538 N.E.2d 105, 108-109. Here, the prosecutor previously

attempted to mediate the dispute between the parties and had
also represented appellants in the same action by filing an
answer on their behalf. Additionally, the prosecutor would
have had an arguable conflict of interest precluding his
representation of Judge Hillyer in the matter. See, e.g., DR
5-101(A) and 5-105(A); EC 5-20. The board had previously
refused to make the application to the court of common pleas.
Pursuant to Corrigan and Stamps, the court of appeals
properly ordered the board to make the application. However,
the board failed to comply with that order when it refused to
file the proposed entry prepared by the prosecutor and instead
filed an application in the common pleas court which challenged
the court of appeals' determination. Under these
circumstances, and where it appeared that any further writ
ordering the proper application would involve considerable
delay because of the recusal of the assigned common pleas court
judge, the court of appeals appropriately appointed independent
counsel for Judge Hillyer itself. Consequently, although the
court of appeals would normally lack authority to do so, the
board's failure to comply with the initial writ vested the
court with the power to bypass the normal statutory procedure.
Therefore, the court of appeals did not abuse its discretion by
awarding attorney fees to Judge Hillyer.
SUITABLE COURT FACILITIES
In their third proposition of law, appellants contend that
the court of appeals erroneously elevated M.C.Sup.R. 17,
entitled "Court Facility Standards," to a mandatory status.
R.C. 1907.19 provides that the "board of county commissioners
shall provide for each county court judge in the county
suitable court and office space and all materials necessary for
the business of the court, including a current set of the
Revised Code." (Emphasis added.) The statute does not define
"suitable" or "necessary." However, in interpreting an
analogous duty on the part of the legislative authorities of
municipalities to provide "suitable accommodations" for
municipal courts, the court has noted that M.C.Sup.R. 17 is
"intended to provide basic guidelines for facilities of
municipal and county courts." State ex rel. Taylor v. Delaware
(1982), 2 Ohio St.3d 17, 18, 2 OBR 504, 505, 442 N.E.2d 452,
454. Therefore, "[a]lthough not all of the provisions of the
rule are mandatory in character, the standards set forth in the
rule should be taken into consideration in measuring the
adequacy of existing court facilities." Id.
The court of appeals considered the M.C.Sup.R. 17
standards in measuring the suitability of the county court
facilities. Contrary to appellants' contentions on appeal, the
court of appeals did not appear to consider these standards to
be mandatory requirements but merely utilized them to decide
the factual issue of whether the county court facilities were
suitable. See, e.g., State ex rel. Finley v. Pfeiffer (1955),
163 Ohio St. 149, 56 O.O. 190, 126 N.E.2d 57, paragraph two of
the syllabus (necessity of court space constitutes a question
of fact); 1987 Ohio Atty.Gen.Ops. No. 87-039 (whether the use
of certain appliances is necessary for the proper and efficient
operation of a court is a question of fact). As this court
noted in Taylor, the consideration of M.C.Sup.R. 17 in this
inquiry is appropriate.

As to its factual determination that the existing court
facilities were not suitable, reviewing courts will not reverse
judgments supported by some competent, credible evidence.
Eberly v. A-P Controls, Inc. (1991), 61 Ohio St.3d 27, 30, 572
N.E.2d 633, 635; State ex rel. Shady Acres Nursing Home, Inc.
v. Rhodes (1983), 7 Ohio St.3d 7, 8-9, 7 OBR 318, 320, 455
N.E.2d 489, 491; see, also, R.C. 2731.09 (issues of fact in
mandamus actions must be tried in the same manner as in civil
actions). Judge Hillyer testified that the facilities were
inadequate and the commissioners admitted that the courtroom
was crowded, not very good, and did not comply with M.C.Sup.R.
17 (including some of its mandatory provisions, e.g.,
M.C.Sup.R. 17[F] requiring that each courtroom equipped to hear
jury trials have a soundproof jury deliberation room). The
court of appeals' factual determination is supported by
sufficient evidence and we will not substitute our judgment for
that of the court of appeals. Thus, the court of appeals did
not err in issuing a writ of mandamus compelling the board to
provide suitable facilities consistent with M.C.Sup.R. 17.
PROBATION OFFICER
Appellants contend in their fourth proposition of law that
since the General Assembly has not specifically granted county
court judges the authority to appoint probation officers as it
has to common pleas and municipal judges, Judge Hillyer lacked
authority to appoint Blackwell as probation officer.
R.C. 1907.18(B) provides:
"County court judges may punish contempts, and exercise
powers necessary to give effect to the jurisdiction of the
court and to enforce its judgments, orders, and decrees, as
provided in this chapter or, in the absence of a provision in
this chapter, in a manner authorized by the Revised Code or
common law for the judges of the courts of common pleas."
R.C. 2301.27 allows courts of common pleas to appoint
probation officers, fix their salaries, and supervise their
work.
Judge Hillyer testified that Blackwell, in his appointed
position as full-time probation officer, was absolutely
necessary to the efficient operation of the court and made it
possible to enforce judgments in criminal cases where
supervised probation was ordered. The evidence further
indicated that $26,000 per year was a reasonable salary.
Consequently, the court of appeals properly determined,
pursuant to R.C. 1907.18(B) and 2301.27, that Judge Hillyer
possessed the authority to hire Blackwell, and was entitled to
the issuance of writ ordering appellants to pay Blackwell back
pay and interest, and to appropriate funds for his continued
employment.
CROSS-APPEAL
Judge Hillyer asserts that the court of appeals abused its
discretion in denying his claims for mandamus concerning
appropriation of budget requests for his court and the
prevention of the board's interference with the operation of
the court.
In a mandamus action, "a court is not limited to
considering facts and circumstances at the time a proceeding is
instituted, but should consider the facts and conditions at the
time it determines whether to issue a peremptory writ." Oregon

v. Dansack (1993), 68 Ohio St.3d 1, 4, 623 N.E.2d 20, 22.
Judge Hillyer acknowledged that aside from the claims he
ultimately prevailed on, i.e., suitable court facilities and
the propriety of Blackwell's employment, the board had fully
complied with his budget requests and had not interfered with
his court's operations following the various threats made by
the board in 1991. Therefore, since it appeared that the board
had actually complied with Judge Hillyer's requests on these
matters and had not acted upon its threats, Judge Hillyer
established no clear legal duty on the part of the board to
provide the requested relief. Additionally, to the extent that
Judge Hillyer requested prospective relief from future
interference, mandamus is not granted to take effect
prospectively. State ex rel. Martinelli v. Corrigan (1994), 68
Ohio St.3d 362, 363, 626 N.E.2d 954, 955, citing State ex rel.
Willis v. Sheboy (1983), 6 Ohio St.3d 167, 6 OBR 225, 451
N.E.2d 1200, paragraph two of the syllabus.
Furthermore, we agree with the court of appeals that R.C.
1907.20 gives the board control over the county clerk's office
where the clerk has been appointed. R.C. 1907.20 provides:
"(A) The clerk of courts shall be the clerk of the county
court, except that the board of county commissioners, with the
concurrence of the county court judges, may appoint a clerk for
each county court judge, who shall serve at the pleasure of the
board and shall receive compensation as set by the board * * *.
"* * *
"(E)(1) In county court districts having appointed
clerks, deputy clerks may be appointed by the board of county
commissioners. Clerks and deputy clerks shall receive such
compensation payable in semimonthly installments out of the
county treasury as the board may prescribe. * * *"
Since the General Assembly has placed discretion over
appointed county court clerks and deputy clerks in the board,
Judge Hillyer is not entitled to an automatic appropriation of
the requested salaries even if those requests are reasonable.
See, e.g., State ex rel. Donaldson v. Alfred (1993), 66 Ohio
St.3d 327, 330, 612 N.E.2d 717, 720; State ex rel. Musser v.
Massillon (1984), 12 Ohio St.3d 42, 45, 12 OBR 36, 38, 465
N.E.2d 400, 402; State ex rel. Durkin v. Youngstown City
Council (1984), 9 Ohio St.3d 132, 134, 9 OBR 382, 384, 459
N.E.2d 213, 215. Under R.C. 1907.20(A) and (E), the clerks and
deputy clerks of the county court serve at the pleasure of the
board; consequently, the board may reasonably control the
operation of the county clerk's office.
To the extent that Judge Hillyer claims that the board's
statutorily authorized control over the clerk's office would
violate the separation of powers doctrine, there is no evidence
that the board has encroached upon the court's authority in
this context. See State v. Warner (1990), 55 Ohio St.3d 31,
564 N.E.2d 18, paragraph one of the syllabus ("commissioning of
a special prosecutor is a constitutional exercise of
legislative power when the General Assembly has conferred the
powers of appointment, removal and supervision on the state
Attorney General"). In the case at bar, the board has not even
laid off any employee of the county clerk's office and has
appropriated all amounts requested for that office although it
could have done otherwise pursuant to R.C. 1907.20, absent an

abuse of its discretion. The court of appeals did not abuse
its discretion in denying the requested mandamus relief on
these claims.
Accordingly, for the foregoing reasons, the judgment of
the court of appeals is affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Resnick, F.E. Sweeney and
Pfeifer, JJ., concur.
Douglas and Wright, JJ., concur in judgment only.