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holding that "the Seminatore court did not find that the prosecutor and board of county commissioners had a duty to apply for appointment of special counsel under the statute. * * * Thus, while it does not find a duty on the prosecutor's part, Seminatore does recognize mandamus as a means to compel an application for special counsel where an abuse of discretion has been shown"
Summary of this case from State v. MasonOpinion
No. 88-682
Submitted March 7, 1989 —
Decided May 10, 1989.
Mandamus — Writ denied, when — Relator's true object is prohibitory injunction — County elected official's request for special counsel may not be effected through mandamus, when — Mandamus is no substitute for quo warranto.
IN MANDAMUS.
ON MOTIONS FOR SUMMARY JUDGMENT.
Relator, Dana A. Stamps, is the County Auditor of Montgomery County. As auditor, Stamps is required by R.C. 307.844 to serve as the chief administrator of the Automatic Data Processing Board of Montgomery County ("board"). R.C. 307.844 also requires either the auditor or a deputy whom he may employ to supervise the operation of the Automatic Data Processing Center of Montgomery County ("center"). As administrator, the auditor is to employ such other persons as are necessary for the center's operations, but his hiring and compensation decisions, according to the statute, are subject to the board's approval. R.C. 307.844 further authorizes the administrator to adopt rules and regulations for the operation of the center. Under R.C. 307.845, the auditor is required to prepare an annual report of the center's operations, including its revenues and expenditures, and is to submit that report to the board and the county commissioners. Because he is the auditor, Stamps must also serve as the board's secretary. R.C. 307.84. As secretary, he is authorized to call board meetings in addition to those required annually. R.C. 307.841.
The respondents in this case are the board, its members, and the Montgomery County Prosecuting Attorney, Lee C. Falke. In addition to Stamps, Montgomery County Clerk of Courts L. Junior Norris (who was succeeded by Patrick F. Meyer), Montgomery County Treasurer Sarah E. Harris, Montgomery County Recorder Vicki D. Pegg, and Montgomery County Commissioner Charles J. Curran are made board members by former R.C. 307.84. Pursuant to that statute's provision for adding members by majority vote, Montgomery County Common Pleas Judge Carl D. Kessler, Montgomery County Sheriff L. Thomas Wilson (who was succeeded by Gary L. Haines), and Falke apparently became members of the board on February 25, 1988. Falke, however, resigned from the board effective April 11, 1988 because Stamps objected to his being both a board member and the board's legal advisor.
On April 14, 1988, Stamps filed the instant complaint in mandamus in his official capacity, and as a taxpayer pursuant to R.C. 309.12 and 309.13. Pursuant to Paragraph 13 of the complaint, Stamps seeks an order compelling respondents:
(1) to stop interfering with the execution of his duties with respect to hiring personnel for the center;
(2) to stop interfering with the execution of his supervisory responsibility in connection with the center;
(3) to stop interfering with his efforts to provide rules and regulations for the center;
(4) to stop interfering with the execution of his fiscal duties in connection with the board and the center, including preparing the annual accounting;
(5) to stop interfering with the execution of his duties as the board's secretary and chief administrator, including hiring a deputy to run the center; and
(6) to stop interfering with his efforts to set the time, place, and date of board meetings.
In the complaint's prayer for relief, Stamps also asks the court:
(1) to enjoin respondents from adding Judge Kessler and Falke to the board's membership, and to prevent Falke from being the board's legal advisor;
(2) to enjoin Judge Kessler and Falke from refusing to process Stamps' application for the appointment of a special counsel pursuant to R.C. 305.14;
(3) to order the board members to carry out all their duties, including appointing the deputy selected by Stamps;
(4) to order an accounting of all expenditures of the board and center to date; and
(5) to order respondents to pay the attorney fees Stamps has incurred.
Stamps' complaint generally seeks relief in relation to the following incidents:
(1) The apparent addition of Falke, Wilson (replaced by Haines), and Judge Kessler to the board's membership. (Stamps submits that this was accomplished without proper notice; that it, in effect, "dilutes" the value of his vote since there are now two representatives of the common pleas court on the board; and that it created a conflict of interest for Falke such that, even though Falke resigned from the board. Stamps needs special counsel to represent himself.)
(2) The failure of Falke and the board of county commissioners to apply for (and Judge Kessler's likely denial of) the appointment of special counsel for Stamps, despite his written requests.
(3) The board's failure to approve Stamps' hiring of Timothy Nusbaum as the center's supervisor at a salary of approximately $39,500. (Respondents submit that this matter is moot because Nasbaum has already been appointed. However, they also claim that Nusbaum's salary was unreasonable and that the board did not approve it for this reason.)
Originally, Stamps also complained of not being able to complete the annual accounting of the center's activities. Respondents, however, provided a partial copy of what appears to be the report in dispute. Thus, its preparation is not at issue anymore.
The cause is now before this court on the parties' motions for summary judgment.
Brannon Hall Law Offices and Dwight D. Brannon, for relator.
Lee C. Falke, prosecuting attorney, and Chris R. Van Schaik, for respondents.
Resolving this case requires us to answer the following questions. First, is a writ of mandamus available generally to prevent respondents from interfering in the execution of Stamps' duties? Second, is a writ of mandamus available to order application for the appointment of special counsel for Stamps? Third, is a writ of mandamus available to order the appointment of Nusbaum as supervisor of the center, and to order the approval of his salary? Fourth, is a writ of mandamus available to remove Judge Kessler from the board or to prevent Falke from representing it? For the reasons that follow, we find that mandamus will not lie to accomplish any of these purposes and, therefore, that respondents are entitled to summary judgment.
Before this court may issue a writ of mandamus, it must find that relator has a clear legal right to the relief prayed for, that respondents are under a clear legal duty to perform the official acts sought by relator, and that relator has no plain and adequate remedy in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50, 451 N.E.2d 225. Under State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O. 2d 141, 228 N.E.2d 631, paragraph four of the syllabus, however, a cause of action in mandamus has not been stated where the substance of the relator's allegations manifests that his true object is for a prohibitory injunction. Pressley requires an examination of the complaint to see whether it actually seeks to prevent, rather than to compel, official action. Id. at 155, 40 O.O. 2d at 150, 228 N.E.2d at 643. See, also, State, ex rel. Kay, v. Brown (1970), 24 Ohio St.2d 105, 53 O.O. 2d 284, 264 N.E.2d 908. If it does, the action must be dismissed because this court has no original jurisdiction in injunction. Id. at 106, 53 O.O. 2d at 285, 264 N.E.2d at 908, citing State, ex rel. Smith, v. Indus. Comm. (1942), 139 Ohio St. 303, 22 O.O. 349, 39 N.E.2d 838.
Relying on cases such as Pressley, respondents argue that mandamus cannot issue because Stamps seeks preventative relief pursuant to Paragraph 13 of his complaint. They claim that while Stamps argues in terms of respondents' "duties" to act, his true object is to keep them from interfering in the execution of his duties. As a result, respondents submit that Stamps has not shown that respondents are under a clear legal duty to perform the requested acts.
Respondents' argument has merit. Stamps argues only one "duty" with respect to Paragraph 13 that could be accomplished through an affirmative act other than his own — the approval of Nusbaum's salary. However, since this approval is necessarily discretionary under R.C. 307.844, Stamps cannot show that respondents have a duty in this regard. See, e.g., State, ex rel. Westbrook, v. Ohio Civil Rights Comm. (1985), 17 Ohio St.3d 215, 216, 17 OBR 449, 450-451, 478 N.E.2d 799, 801 (Where commission has discretion to decide whether it will conduct the investigation that precedes and provides the basis for a probable cause determination, it can have no absolute duty to make that determination.). Accordingly, mandamus cannot be granted as it relates to the relief Stamps requests pursuant to Paragraph 13 of his complaint.
Respondents next argue that they have no duty to apply for or appoint special counsel for Stamps because those decisions are discretionary under R.C. 305.14. R.C. 305.14 provides that, upon application of the prosecutor and board of county commissioners, a common pleas court may authorize such board to employ legal counsel to assist a public official in any matter of public business that is before him. Stamps claims that State, ex rel. Corrigan, v. Seminatore (1981), 66 Ohio St.2d 459, 20 O.O. 3d 388, 423 N.E.2d 105, requires the application for appointment of counsel because Falke's former position on the board created a conflict of interest.
In Seminatore, a county prosecutor filed suit against a county agency, and the common pleas court appointed special counsel for the agency, but without the prosecutor's and board of commissioners' applications therefor. Because R.C. 309.09 prevents anyone but the prosecutor from representing the agency except as provided in R.C. 305.14, this court observed that special counsel should not ordinarily be authorized without the proper applications. Id. at 462-463, 20 O.O. 3d at 390-391, 423 N.E.2d at 109. The court determined that mandamus would lie to compel such an application, however, where the prosecuting attorney had a conflict of interest and refused to make application. But, contrary to Stamps' argument, the Seminatore court did not find that the prosecutor and board of county commissioners had a duty to apply for appointment of special counsel under the statute. Rather, Seminatore stated that the failure to apply for appointment in that situation would constitute an "abuse of discretion." Id. at 463-464, 20 O.O. 3d at 391, 423 N.E.2d at 109.
Thus, while it does not find a duty on the prosecutor's part, Seminatore does recognize mandamus as a means to compel an application for special counsel where an abuse of discretion has been shown. An abuse of discretion implies more than an error in judgment. It connotes a decision motivated by "`perversity of will, passion, prejudice, partiality, or moral delinquency.'" State, ex rel. Commercial Lovelace Motor Freight, Inc., v. Lancaster (1986), 22 Ohio St.3d 191, 193, 22 OBR 275, 277, 489 N.E.2d 288, 290. The circumstances surrounding Falke's refusal to request special counsel for Stamps suggest that this decision did not result from these motives. Thus, mandamus cannot be granted on this basis.
Nor can mandamus be granted to compel the appointment of Nusbaum as supervisor of the center. The record reflects that Nusbaum has been installed as the center's supervisor. Thus, the issue of his appointment is moot. Mandamus may not be ordered to accomplish an act that has already been done. State, ex rel. Gantt, v. Coleman (1983), 6 Ohio St.3d 5, 6 OBR 4, 450 N.E.2d 1163.
Likewise, mandamus cannot be allowed to compel the approval of Nusbaum's salary. While Stamps is authorized to fix his deputy's salary, his efforts are subject to the board's approval. R.C. 307.844. Since this matter is within the board's discretion, there is no duty to approve it.
Stamps also urges the court, in effect, to remove Judge Kessler as a board member. This request is clearly not an appropriate subject for a mandamus action. Quo warranto is the proper means for challenging a public official's right to hold office, State, ex rel. St. Sava, v. Riley (1973), 36 Ohio St.2d 171, 173, 65 O.O. 2d 395, 396, 305 N.E.2d 808, 810, and the remedy of ouster can be pronounced in no other proceeding, Ohio Hospital Assn. v. Community Mut. Ins. Co. (1987), 31 Ohio St.3d 215, 218, 31 OBR 411, 413-414, 509 N.E.2d 1263, 1266. Thus, even if Judge Kessler were holding his position on the board illegally, mandamus would not lie to remove him.
Finally, Stamps generally asserts that Falke has forfeited his "right" to represent the board by having been a member. He cites no authority for his premise. However, mandamus may only be used to compel the performance of a legal duty. Since it may not be issued to enjoin conduct, State, ex rel. Smith, v. Indus. Comm., supra, at paragraphs two and three of the syllabus, a writ of mandamus cannot be allowed to keep Falke from representing the board.
In ruling on respondents' motion for summary judgment, we are required by Civ. R. 56(C) to construe the evidence most strongly in favor of relator. Based on the foregoing, we find that respondents are entitled to judgment as a matter of law. Accordingly, respondents' motion for summary judgment is granted and relator's motion for summary judgment is overruled. Thus, relator's request for a writ of mandamus is denied.
Writ denied.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.