State Ex Rel. Hamilton County Board of Commissioners v. Hamilton County Court of Common Pleas , 126 Ohio St. 3d 111 ( 2010 )

[Cite as State ex rel. Hamilton Cty. Bd. of Commrs. v. Hamilton Cty. Court of Common Pleas,
126 Ohio St.3d 111, 2010-Ohio-2467.]
THE STATE EX REL. HAMILTON COUNTY BOARD OF COMMISSIONERS v.
HAMILTON COUNTY COURT OF COMMON PLEAS ET AL.
[Cite as State ex rel. Hamilton Cty. Bd. of Commrs. v. Hamilton Cty. Court of
Common Pleas, 126 Ohio St.3d 111, 2010-Ohio-2467.]
County Commissioners’ employment of special counsel — R.C. 305.14 —
Termination of authorization by common pleas court.
(No. 2009-2068 — Submitted April 20, 2010 — Decided June 9, 2010.)
IN PROHIBITION.
__________________
Per Curiam.
{¶ 1} 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
{¶ 2} 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.
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{¶ 3} 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.
{¶ 4} 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
American Ball Park (the new baseball stadium). At the board’s request, special
counsel assisted the county on various legal issues pertaining to the construction
of the new baseball stadium and related infrastructure. The board concluded that
the involvement of special counsel was essential to protect the county’s interests,
given the specialized knowledge and experience required to manage the complex
legal aspects of the riverfront-development project.
{¶ 5} 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 R.C. 305.14. The court authorized the board
to “employ and compensate separate counsel for the purpose of challenging the
valuation of certain parcels of real property obtained by Hamilton County in
connection with riverfront development projects.” In 2000, the common pleas
court approved the joint application of the board and the prosecuting attorney and
authorized the board to “employ and compensate separate counsel to assist the
Prosecuting Attorney in all matters related to the Cincinnati Bengals and
Cincinnati Reds Stadium Projects as well as related riverfront development
issues.”
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B. Joint Application to Continue Employment of Special Counsel
{¶ 6} 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.”
{¶ 7} 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 R.C. 305.14 with the court of common pleas for an
order authorizing the board to continue to employ special counsel to be
compensated by the board. On that same day, the court, in case No. M0201052,
entered the requested order authorizing the board “to continue to employ special
counsel to assist Hamilton County, Ohio, its offices, boards, departments,
employees and institutions in all matters related to the development of the
Cincinnati Central Riverfront Area and the Great American Ball Park.” The
court’s order also specified that “[c]ounsel will be compensated in an amount and
manner determined by the Board.”
{¶ 8} 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
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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.
{¶ 9} 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
{¶ 10} 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
{¶ 11} 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
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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.
{¶ 12} According to the minutes of the meeting, the prosecuting attorney
noted that a statute allowed the board of county commissioners “to hire outside
counsel up to the amount of his annual salary, approximately $74,000.” He
objected to the amount of money spent by the county on special counsel. The
prosecutor stated that he had talked with two of the three commissioners about the
need to place tighter controls on the use of outside counsel. Harper mentioned
that the contracts employing special counsel could be terminated by the board.
The minutes give no indication that he informed the court that the commissioners
had not requested or authorized termination.
{¶ 13} 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
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{¶ 14} 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
{¶ 15} 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 was granted, and he filed an answer and a motion for
judgment on the pleadings. We denied respondents’ motions and granted an
alternative writ. State ex rel. Hamilton Cty. Bd. of Commrs. v. Hamilton Cty.
Court of Common Pleas, 124 Ohio St.3d 1440, 2010-Ohio-188, 920 N.E.2d 371.
The parties filed evidence and briefs, and amici curiae filed briefs.
{¶ 16} This cause is now before the court for our consideration of the
merits.
II. Legal Analysis
A. Prohibition
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{¶ 17} 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.
{¶ 18} 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.
{¶ 19} 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
{¶ 20} Under Section 4(B), Article IV of the Ohio Constitution, “[t]he
courts of common pleas and divisions thereof shall have such original jurisdiction
over all justiciable matters and such powers of review of proceedings of
administrative officers and agencies as may be provided by law.” This case
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involves a common pleas court’s authority over the legal representation of a
county and its officers, boards, and employees.
{¶ 21} R.C. 309.09(A) specifies the general rule that “[t]he prosecuting
attorney shall be the legal adviser of the board of county commissioners * * * and
all other county officers and boards” and that “[t]he prosecuting attorney shall
prosecute and defend all suits and actions which any such officer or board directs
or to which it is a party, and no county officer may employ any other counsel of
attorney at the expense of the county, except as provided in section 305.14 of the
Revised Code.” (Emphasis added.) See also State ex rel. Sartini v. Yost, 96 Ohio
St.3d 37, 2002-Ohio-3317, 770 N.E.2d 584, ¶ 26.
{¶ 22} Pursuant to R.C. 309.09(A), the prosecuting attorney “has the
statutory responsibility and authority to advise, prosecute, and defend county
officers and boards as specified.” State ex rel. O’Connor v. Davis (2000), 139
Ohio App.3d 701, 706, 745 N.E.2d 494. R.C. 305.14 provides two separate
exceptions to the general rule of R.C. 309.09(A).
{¶ 23} 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.” R.C. 309.09(C). This exception is
inapplicable to the board’s employment of special counsel for the riverfront-
development project because the board paid special counsel more than the total
annual compensation for the prosecuting attorney.
{¶ 24} For the remaining exception, which authorized the board’s
employment of special counsel here, the General Assembly enacted R.C. 305.14,
which confers jurisdiction on common pleas courts and their judges to authorize a
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board of county commissioners to employ special counsel upon joint application
of the prosecuting attorney and the board of county commissioners:
{¶ 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.” R.C.
305.14(A).
{¶ 26} In construing R.C. 305.14(A), our paramount concern is the
legislative intent in enacting it. State Farm Mut. Auto. Ins. Co. v. Grace, 123
Ohio St.3d 471, 2009-Ohio-5934, 918 N.E.2d 135, ¶ 25. “To discern this intent,
we must ‘read words and phrases in context according to the rules of grammar
and common usage.’ ” State ex rel. Mager v. State Teachers Retirement Sys. of
Ohio, 123 Ohio St.3d 195, 2009-Ohio-4908, 915 N.E.2d 320, ¶ 14, quoting State
ex rel. Lee v. Karnes, 103 Ohio St.3d 559, 2004-Ohio-5718, 817 N.E.2d 76, ¶ 23.
{¶ 27} The board of county commissioners asserts that the plain language
of R.C. 305.14(A) provides no authority for a common pleas court or prosecuting
attorney to terminate the employment of special counsel once that counsel has
been retained pursuant to a joint application approved by the court. But for the
following reasons, the board’s assertion does not amount to a patent and
unambiguous lack of jurisdiction on the part of the common pleas court and its
judges to do so.
{¶ 28} First, notwithstanding the express language of R.C. 305.14(A), the
common pleas court may act to appoint counsel other than the prosecuting
attorney to represent the board of county commissioners if the prosecuting
attorney has a conflict of interest even in the absence of the joint application
specified in R.C. 305.14(A) when the prosecutor refuses to join in the application.
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See, e.g., 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 (“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 office, except where the
prosecuting attorney has a conflict of interest and refuses to make application”).
“R.C. 305.14 confers power upon the common pleas court to authorize the
appointment of legal counsel other than the prosecuting attorney to represent a
county board or officer * * * where to do so is in the best interests of the county.”
Id. at 465.
{¶ 29} 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 R.C. 1717.06 and 1717.07, authorized county humane societies to
appoint agents for the purpose of prosecuting any person guilty of an act of
cruelty to persons or animals, with the appointment to be approved by the probate
judge if the society exists outside a municipal corporation, and once approved, the
agents would be paid a monthly salary by the board of county commissioners. A
probate judge had approved the appointment of a humane officer by the county
humane society, but approximately a year and a half later, a successor probate
judge revoked the appointment and abolished the office. After the humane officer
continued in his appointed office, the prosecuting attorney instituted a quo
warranto action seeking to oust him from the office.
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{¶ 30} 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:
{¶ 31} “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 R.C. 1717.07]. The agent cannot make an arrest
until his appointment is approved. Section 10065. * * * Since the approval is
necessary before the agent can perform his most important function, or draw a
cent of salary, evidently the Legislature contemplated that, while the selection is
to be made by the society, it is the approval of the probate judge * * * which gives
vitality to the selection and really establishes the function.
{¶ 32} “* * * 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 R.C.
1717.06 and 1717.07], to determine whether there is a necessity for the
appointment, is a power which exists after, as well as prior, to the approval of the
officer.” (Emphasis added.) 123 Ohio St. at 540-542, 176 N.E. 117.
{¶ 33} Similarly, based on Diehl I, the mere fact that R.C. 305.14(A) does
not specify that the common pleas court that approved the joint application to
authorize the board to employ special counsel is authorized to terminate the
authorization would not preclude the court from determining whether it remains
in the best interest of the county to continue the employment of special counsel on
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the riverfront-development project when the successor prosecuting attorney
indicates that he no longer consents to that authorization. As in Diehl I, the
board’s appointment of special counsel pursuant to a joint application under R.C.
305.14(A) has no viability until the common pleas court approves the application,
and special counsel cannot be paid until the approval occurs. Therefore, the
court’s power to terminate the authorization for the board of county
commissioners to employ special counsel would be included in its power to
initially authorize the employment. This result is consistent with the general
axiom that the “power of removal is regarded as incident to the power of
appointment.” State ex rel. Minor v. Eschen (1995), 74 Ohio St.3d 134, 139, 656
N.E.2d 940.
{¶ 34} Third, our precedent cited by the board does not require a different
result. These cases involve the initial appointment of special counsel rather than
the common pleas court’s authority to terminate a previously approved
appointment. See State ex rel. Gains v. Maloney, 102 Ohio St.3d 254, 2004-
Ohio-2658, 809 N.E.2d 24 (common pleas court judge lacked statutory or
inherent authority to appoint special counsel to represent him in a habeas corpus
case when neither the prosecuting attorney nor the board of county commissioners
had applied for the appointment of special counsel to represent the judge and no
conflict of interest precluded the prosecutor from representing the judge); Sartini,
96 Ohio St.3d 37, 2002-Ohio-3317, 770 N.E.2d 584 (common pleas court lacked
authority to order the county to pay for outside counsel when no joint application
for the appointment had been filed under R.C. 305.14(A) and the court had
already determined that any potential conflict of interest on the part of the
prosecuting attorney had been waived); State ex rel. Jefferson Cty. Children
Servs. Bd. v. Hallock (1986), 28 Ohio St.3d 179, 182, 28 OBR 269, 502 N.E.2d
1036 (juvenile court lacked authority to prohibit special counsel from representing
children services board before it because common pleas court had authorized
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employment of special counsel because of the prosecutor’s conflict of interest).
They are thus distinguishable.
{¶ 35} 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.
{¶ 36} 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
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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’ ”).
{¶ 37} 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
{¶ 38} “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.
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{¶ 39} 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.
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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.
______________________
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