Hamilton County Common Pleas/Commissioner Dispute

The Ohio Supreme Court yesterday issued an order staying the enforcement of the October 15, 2009 order by the Hamilton County Court of Common Pleas, In re Appointment of Special Legal Counselagainst Hamilton County Commissioners, "pending further order of the Court," Justice Maureen O'Connor dissenting and having would have denied a stay "until such time as one of the parties to the case requested such a stay."


County Commissioners Todd Portune and David Pepper last month filed a complaint for a writ of prohibition -- an appellate court order preventing a lower court from exceeding its jurisdiction or preventing a non-judicial officer or entity from exercising such powers, according to Black's Law Dictionary . "As a matter of law, the only authority granted the Court of Common Pleas over the relationship between the Board and its chosen counsel exists pursuant to R.C. 305.14(A)," the Commissioners' complaint read. Citing a 1986 case, , 28 OSt3d 179, it continued by saying, "The Board is entitled to a writ of prohibition because: (1) Respondents are exercising judicial or quasi-judicial power; (2) the exercise of that power is unauthorizcd by law; and (3) there is no adequate alternative remedy."


The Common Pleas Court had answered the complaint with a motion to dismiss saying the Commissioners had failed to "state a claim upon which the extraordinary relief of prohibition may be granted," (and) that it was "beyond dispute from the face of the Board's Complaint that the errors complained of are non-jurisdictional and may not form the predicate for a writ of prohibition."

Referring to cases such as State ex rel. Stamps v. Auto. Data Processing Bd., 42 O St.3d 164 in 1989, and R.C. 309.09(A), the Common Pleas motion countered "Significantly, R.C. 309.09(A) prohibits a county officer from employing any attorney other than the county prosecuting attorney, except as provided in R.C. 305.14."

Then, citing a number of additional cases, including Hallock, the Common Pleas motion stated that it had "been held repeatedly that in the absence of a conflict of interest the Prosecuting Attorney is the sole legal adviser to the county and its officers, who cannot be supplanted or replaced by special counsel."