Opinion
No. 86-1862
Decided May 27, 1987.
Attorneys at law — Fees for assigned cases — Mandamus inappropriate remedy to order trial court to exercise its discretion, when.
IN MANDAMUS.
Respondent, Gerald E. Radcliffe, is a judge of the Court of Common Pleas of Ross County, Juvenile Division. On January 6, 1986, relator was appointed to represent an adult defendant in a parentage action before the juvenile court. On July 29, 1986, respondent appointed relator to defend a juvenile in delinquency proceedings. Subsequently, respondent appointed relator to represent the same juvenile in proceedings in which it was alleged that the juvenile was an unruly child. In each case, relator filed the appropriate application for assigned counsel fees. In addition to the application, relator filed itemized statements listing the amounts of time expended in each case and also had filed the appropriate affidavits of indigency.
The entry for assigned counsel fees, contained in the same document as the application, states:
"This Court finds that counsel performed the legal services set forth on the attached itemized Statement; and that the fees and expenses, set forth on said Statement are reasonable, and are in accordance with the resolution of the Board of County Commissioners of Ross County, Ohio, relating to the payment of assigned counsel.
"IT IS THEREFORE ORDERED that such fees and expenses be, and are hereby approved. It is further ordered that the said amount be, and hereby is, certified by the Court to the County Auditor for payment."
Below these paragraphs is a space for the amount allowed by the court and a space for the judge's signature.
In each case, the trial judge signed the entry "approving" the fees and expenses set forth by relator. However, in each case the amount allowed by the trial court was less than the total listed by relator in the application. In the delinquency action, the trial court reduced the listed fees and expenses of $675.42 to $198.98. In the unruly action, the trial court reduced the listed fees and expenses from $304.48 to an allowed amount of $163.23. In the parentage action, the trial court reduced the listed fees and expenses of $229.15 to an allowed amount of $150. The trial judge in all cases did not indicate the reason for the reductions. On November 7, 1986, the trial court filed two journal entries vacating the October 15 journal entries which had allowed relator attorney fees and expenses for the delinquency and unruly actions. Again, the court indicated no reason for vacating the two entries.
This court expresses no opinion on the apparent contradiction between the initial approval and certification of payment of the fees and expenses and the subsequent allowance of a different amount.
Thereafter, relator filed the instant action praying for a writ of mandamus ordering the trial court to pay the previously "approved" sums.
Respondent filed a motion to dismiss (or in the alternative a motion for summary judgment) on the basis that a writ of mandamus cannot order a judge to exercise his discretion.
Alfred E. Baerkircher, pro se. Richard G. Ward, prosecuting attorney, for respondent.
An original action seeking a writ of mandamus is an improper avenue to correct a trial court's abuse of discretion in allowing fees and expenses to appointed counsel.
R.C. 2731.03 provides, in pertinent part:
"The writ of mandamus may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion."
Relator urges that after the trial court "approved" the fees and expenses listed in the application, the trial judge was under a ministerial duty to order that the funds be paid to relator and that the judge could not reduce the total listed in the application. However, it is implicit that the trial judge did not believe that the total fees and expenses listed were appropriate because he reduced the total amount in each case.
In State, ex rel. Martin, v. Corrigan (1986), 25 Ohio St.3d 29, 25 OBR 24, 494 N.E.2d 1128, this court issued a writ of mandamus directing respondents to determine and pay an appropriate amount of compensation for the work performed by appointed defense counsel for an indigent defendant. However, that case involved an appointed counsel who had worked over one hundred thirteen hours on a case before being dismissed. The trial court had refused to pay that counsel for any of the work performed before dismissal. This court at 30-31, 25 OBR at 25, 494 N.E.2d at 1129, noted that:
"`While R.C. 2941.51 requires payment for services to assigned counsel, division (A) thereof affords discretion to the trial court by limiting such payment to "such compensation and expenses as the trial court may approve."'
"* * * the above-quoted language suggests that counsel assigned to a case has a right to be paid for his work, and that the trial judge's discretion is limited to determining the amount of such payment."
State, ex rel. Wood, v. Christiansen (1984), 14 Ohio St.3d 27, 14 OBR 329, 470 N.E.2d 895, does not require a different result. In that case, this court allowed a writ of mandamus ordering the respondent to approve the fee application submitted by relator. However, at issue in that case was whether a thirty-day time limitation for filing an attorney-fees application imposed by a local rule was unreasonable in view of the statutory right of assigned counsel to be paid. Our decision recognized that the thirty-day rule was, in fact, unreasonable and therefore ordered that the fee application be approved. However, we noted that the approval would be subject to the exercise of the trial court's sound discretion as to the reasonableness and appropriateness of such application. Thus, this case does not support relator's position that a trial court must allow the amount of fees and expenses submitted by an appointed counsel.
Mandamus is an inappropriate remedy to order a trial court to exercise its discretion, pursuant to R.C. 2731.03. The allowance or award of attorney fees and expenses is a matter within the sound discretion of the trial court and therefore relator is not entitled to a writ of mandamus in the instant case.
Accordingly, respondent's motion to dismiss is granted and this cause is dismissed.
Cause dismissed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.