State ex rel. Fiser v. Kolesar (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Fiser v. Kolesar, Slip Opinion No. 2020-Ohio-5483.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2020-OHIO-5483
THE STATE EX REL. FISER, JUDGE, v. KOLESAR, JUDGE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Fiser v. Kolesar, Slip Opinion No.
2020-Ohio-5483.]
Prohibition—Writ sought by county-court judge to prevent administrative judge of
same court from enforcing entry vacating pay raises awarded by county-
court judge—Administrative judge of county court patently and
unambiguously lacked jurisdiction to issue entry vacating pay raises—Writ
granted.
(No. 2020-0320—Submitted October 27, 2020—Decided December 3, 2020.)
IN PROHIBITION.
__________________
Per Curiam.
{¶ 1} This original action involves a dispute between two judges who sit on
the Sandusky County Court. Relator, Judge Mary Elizabeth Fiser, issued judgment
entries granting pay raises to certain court personnel. Shortly after, respondent,
Judge John Kolesar, who serves as the court’s administrative judge, issued a
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judgment entry vacating Judge Fiser’s entries and forbidding pay raises and the
expenditure of court resources that did not have his approval. To compel obedience
to his entry, Judge Kolesar stated in the entry that anyone who violated it risked
being held in contempt.
{¶ 2} The parties now request competing writs of prohibition from this
court. Judge Fiser seeks a writ to prevent Judge Kolesar from enforcing his entry;
Judge Kolesar seeks a writ to prohibit Judge Fiser from entering future entries that
infringe on his powers as administrative judge. Both judges have filed motions for
judgment on the pleadings.
{¶ 3} For the reasons that follow, we deny Judge Kolesar’s motion for
judgment on the pleadings, grant a peremptory writ of prohibition that vacates
Judge Kolesar’s vacating entry, grant Judge Fiser’s motion for judgment on the
pleadings, and dismiss Judge Kolesar’s counterclaim.
I. FACTUAL BACKGROUND
{¶ 4} Judge Fiser sits on the Sandusky County Court and serves in the
Woodville courthouse at the county’s western end. In January 2020, she issued
judgment entries ordering that a full-time probation officer receive a raise of one
dollar an hour and that a part-time probation officer receive a raise of 50 cents an
hour (collectively, the “pay-raise entries”). The pay raises were to be paid out of
the court’s special-projects fund.
{¶ 5} Judge Kolesar is the administrative judge of the Sandusky County
Court and serves in the Clyde courthouse at the county’s eastern end. In February
2020, he issued a judgment entry (the “vacating entry”) ordering that Judge Fiser’s
pay-raise entries be “stricken and vacated as without authority.” Judge Kolesar
explained in his vacating entry that Judge Fiser’s entries “were not presented to me
and do not have my signature or my approval as Administrative judge.” He
reasoned that because Judge Fiser was not the administrative judge, she “lack[ed]
the power to make any administrative orders which includes hiring or employment

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decisions.” He further announced that “[a]ny violation of [the vacating entry] may
be enforced through the court’s power of contempt.” As support for his order,
Judge Kolesar cited Sup.R. 4.01 and Montgomery Cty. Bd. of Commrs. v. Hensley,
2d Dist. Montgomery No. 19754, 2003-Ohio-5730.
{¶ 6} In March 2020, Judge Fiser filed a complaint in prohibition with this
court to stop Judge Kolesar from enforcing his vacating entry and to “correct[] the
results flowing from the issuance of that” entry. In response, Judge Kolesar filed a
motion for judgment on the pleadings, an answer, and a counterclaim requesting
that this court issue a writ of prohibition restraining Judge Fiser from issuing “future
unilateral orders” that “infring[e] on the powers specifically granted by the Rules
of Superintendence to the Administrative Judge.” Judge Fiser filed a motion for
judgment on the pleadings in response to Judge Kolesar’s counterclaim.
II. STANDARD OF REVIEW
{¶ 7} To demonstrate entitlement to a writ of prohibition, each judge must
establish that “(1) [his or her adversary] is about to or has exercised judicial or
quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3)
denying the writ would result in injury for which no other adequate remedy exists
in the ordinary course of law.” State ex rel. Balas-Bratton v. Husted, 138 Ohio
St.3d 527, 2014-Ohio-1406, 8 N.E.3d 933, ¶ 15. “The second and third elements
may be satisfied by a showing that the lack of jurisdiction is ‘patent and
unambiguous.’ ” State ex rel. Lorain Cty. Bd. of Commrs. v. Lorain Cty. Court of
Common Pleas, 143 Ohio St.3d 522, 2015-Ohio-3704, 39 N.E.3d 1245, ¶ 16,
quoting Chesapeake Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204,
2013-Ohio-224, 985 N.E.2d 480, ¶ 11.
{¶ 8} A motion for judgment on the pleadings “permits consideration of the
complaint and answer.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio
St.3d 565, 569, 664 N.E.2d 931 (1996). A court should grant the motion and
dismiss the complaint when it determines that “no material factual issues exist and

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* * * the movant is entitled to judgment as a matter of law.” Id. at 570. The
questions presented in this case are purely legal—no material factual issues exist.
III. ANALYSIS
A. Judge Fiser’s request for a writ of prohibition to prevent Judge Kolesar
from enforcing his vacating entry and Judge Kolesar’s motion for judgment
on the pleadings
1. Whether Judge Kolesar exercised judicial power
{¶ 9} Judge Fiser argues that Judge Kolesar exercised judicial power by
attempting to resolve an informal dispute and by threatening to hold violators of his
vacating entry in contempt. Judge Kolesar counters that his vacating entry did not
arise from the exercise of judicial power because, he says, the entry addressed a
matter internal to the court rather than resolving a dispute between litigants before
the court.
{¶ 10} Both judges rely on Lorain Cty. Bd. of Commrs., 143 Ohio St.3d 522,
2015-Ohio-3704, 39 N.E.3d 1245, to support their arguments. In that case, the
county sheriff communicated with the county commissioners about the costs of
implementing certain security measures; however, the sheriff apparently never
requested that the county commissioners appropriate the funds. Shortly after the
communication, a common-pleas-court judge issued an order mandating that the
county commissioners make the appropriation. Id. at ¶ 5-7. After that judge was
replaced by another judge as the administrative judge of the court, the second judge
issued an order giving the commissioners the option to appropriate the funds to the
court, which the court would then give to the sheriff for the same purpose. Id. at
¶ 9-10. The commissioners sought a writ of prohibition preventing enforcement of
the orders.
{¶ 11} We examined two factors in determining whether the judges had
exercised judicial rather than administrative power. First, we considered whether
the orders facilitated the administration of the court’s “own business.” Id. at ¶ 18.

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An order of that character “is not made in the context of a dispute but is in the nature
of an administrative order.” Id. Second, we considered whether the appropriation
was “to be made of the court’s funds.” Id. at ¶ 19. We determined that both factors
weighed against a conclusion that the judges had exercised administrative power.
The orders were not made for the administration of the court’s business; rather, they
were attempts to resolve an informal dispute among the sheriff, the county
commissioners, and the court. Id. at ¶ 20. And the appropriation was not one that
would have come from the court’s funds. Id. at ¶ 19.
{¶ 12} We do not regard Lorain Cty. Bd. of Commrs. as dispositive here.
True, the bounds of this dispute are confined to the administration of the court’s
business and concern court funds, which would tend to stamp Judge Kolesar’s entry
with an administrative character. But his entry was not in the nature of a funding
order, as was the case in Lorain Cty. Bd. of Commrs.; instead, it was unquestionably
an effort to resolve a dispute between himself and Judge Fiser, which would tend
to stamp his entry with a judicial character. Something more, then, must be
considered in order to characterize the vacating entry.
{¶ 13} Two additional factors, which we did not have occasion to consider
in Lorain Cty. Bd. of Commrs., bear on the analysis and favor a conclusion that
Judge Kolesar’s entry arose from the exercise of judicial power. First, Judge
Kolesar exercised judicial review of Judge Fiser’s pay-raise entries, declaring that
she lacked the authority to issue them after applying his view of the controlling law
to the material facts. That type of act closely resembles the exercise of a core
judicial power. See Fairview v. Giffee, 73 Ohio St. 183, 190, 76 N.E. 865 (1905)
(“It is indisputable that it is a judicial function to hear and determine a controversy
between adverse parties, to ascertain the facts, and, applying the law to the facts, to
render a final judgment”).
{¶ 14} Second, Judge Kolesar threatened to hold anyone who violated his
vacating entry in contempt. See R.C. 1907.18(B) (“County court judges may

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punish contempts”). “[A] judge who decides to issue an order finding a person in
contempt is exercising judicial power.” State ex rel. Gilligan v. Hoddinott, 36 Ohio
St.2d 127, 130, 304 N.E.2d 382 (1973). We recognize that there has been no
contempt finding in this case, meaning that the statement in Gilligan does not
directly apply. Nevertheless, we cannot ignore the fact that Judge Kolesar issued
his threat in an attempt “to compel obedience to a court order,” which is a feature
of a civil-contempt sanction, State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 555,
740 N.E.2d 265 (2001). Nor can we ignore the threat’s attempt “to vindicate the
authority of the court”—in particular, the authority of the administrative judge—
which is a feature of a criminal-contempt sanction. Id.
{¶ 15} Relying on Lorain Cty. Bd. of Commrs., Judge Kolesar argues that
his contempt threat should not matter for purposes of this court’s prohibition
analysis. But he does not explain how he did anything other than engage in the
exercise of judicial power when he applied the law to the facts of his dispute with
Judge Fiser, which culminated in his vacatur of Judge Fiser’s pay-raise entries. See
Fairview at 190.
{¶ 16} In any event, Judge Kolesar’s reliance on Lorain Cty. Bd. of
Commrs., 143 Ohio St.3d 522, 2015-Ohio-3704, 39 N.E.3d 1245, is misplaced. In
that case, we observed that if an order directed a board of county commissioners to
release funds to a court for the court’s own business, it would be “in the nature of
an administrative order” enforceable through contempt. Id. at ¶ 18. But here, Judge
Kolesar did not issue a funding order. And even assuming that he did, this court
did not say in Lorain Cty. Bd. of Commrs. that a funding order retains its
administrative character when it includes the threat of contempt for the purpose of
compelling obedience to its terms.
{¶ 17} In summary, we conclude that Judge Kolesar’s entry arose from his
exercise of judicial power.

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2. Whether Judge Kolesar patently and unambiguously lacked jurisdiction to
vacate Judge Fiser’s pay-raise entries
{¶ 18} We next consider whether Judge Kolesar patently and
unambiguously lacked jurisdiction to issue his vacating entry.
{¶ 19} “If an inferior tribunal patently and unambiguously lacks
jurisdiction, prohibition will lie to prevent any future unauthorized exercise of
jurisdiction and to correct the results of prior jurisdictionally unauthorized actions.”
State ex rel. Baker v. State Personnel Bd. of Rev., 85 Ohio St.3d 640, 642, 710
N.E.2d 706 (1999). A court’s “basic statutory jurisdiction to proceed in the case”
will generally defeat a claim that the court patently and unambiguously lacks
jurisdiction. State ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326, 329, 285 N.E.2d
22 (1972). “Typically, a court will deny relief in prohibition when a respondent
judge has general subject-matter jurisdiction and will deem any error by the judge
to be an error in the exercise of jurisdiction.” State ex rel. Sponaugle v. Hein, 153
Ohio St.3d 560, 2018-Ohio-3155, 108 N.E.3d 1089, ¶ 24.
{¶ 20} When a prohibition claim targets a statutorily created tribunal, the
analysis must consider whether the General Assembly empowered the tribunal to
proceed. State ex rel. Natalina Food Co. v. Ohio Civ. Rights Comm., 55 Ohio St.3d
98, 100, 562 N.E.2d 1383 (1990). As a county court, the Sandusky County Court
is a statutory creation with “only limited jurisdiction, and may exercise only such
powers as are directly conferred by legislative action.” State ex rel. Johnson v.
Perry Cty. Court, 25 Ohio St.3d 53, 54, 495 N.E.2d 16 (1986). This feature
distinguishes a county court from “this court, the courts of appeals, and the courts
of common pleas, all of which originate” from Article IV, Section 1 of the Ohio
Constitution. Johnson at 54.
{¶ 21} A county court has statutory jurisdiction over, among other things,
violations of township resolutions, R.C. 1907.012; misdemeanors and certain
aspects of felony proceedings, R.C. 1907.02(A)(1); certain parking and traffic

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offenses, R.C. 1907.02(B) and (C); civil actions in which the sum sought for
recovery does not exceed amounts prescribed by law, R.C. 1907.03(A); and
contempts, R.C. 1907.18(B). See also R.C. 1907.031 (further specifying the scope
of a county court’s jurisdiction).
{¶ 22} Despite these provisions, Judge Kolesar cites no statutory
authority—and we have found none—that confers jurisdiction on a county-court
judge to exercise judicial review of another county-court judge’s order and declare
it ultra vires. What Judge Kolesar does cite is a list of provisions from the Rules of
Superintendence for the Courts of Ohio, namely, those describing the powers of an
administrative judge. The problem with this argument, however, is that those rules
do not derive from a legislative enactment. See Johnson at 54. Rather, the rules
were adopted by this court as an exercise of its powers of “general superintendence
over all courts in the state.” Ohio Constitution, Article IV, Section 5(A)(1); Sup.R.
1(B).
{¶ 23} In summary, we conclude that Judge Kolesar patently and
unambiguously lacked jurisdiction to issue his vacating entry. This conclusion,
coupled with our earlier conclusion that Judge Kolesar’s vacating entry arose from
the exercise of judicial power, compels us to deny his motion for judgment on the
pleadings.
3. Whether Judge Fiser is entitled to a peremptory writ of prohibition
{¶ 24} At this juncture, we must either “dismiss the case; issue an
alternative or a peremptory writ, if a writ has not already been issued; or deny the
request for the writ.” S.Ct.Prac.R. 12.04(C). This case does not depend on the
resolution of factual disputes and further briefing would not materially aid our
disposition of Judge Fiser’s complaint. Under these circumstances, if “it appears
beyond doubt” that Judge Fiser is entitled to a writ of prohibition, a peremptory
writ should issue. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio
St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 14; see State ex rel. Richland Cty.

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 January Term, 2020

Children Servs. v. Richland Cty. Court of Common Pleas, 152 Ohio St.3d 421,
2017-Ohio-9160, 97 N.E.3d 429, ¶ 20-21.
{¶ 25} Applying this standard, we grant a peremptory writ of prohibition
that vacates Judge Kolesar’s vacating entry because, as we have explained, Judge
Kolesar’s vacating entry arose from an exercise of judicial power that he patently
and unambiguously lacked jurisdiction to exercise.
B. Judge Kolesar’s counterclaim for a writ of prohibition to prevent Judge
Fiser from entering future entries that infringe on his powers as
administrative judge and Judge Fiser’s motion for judgment on the
pleadings
{¶ 26} Judge Kolesar’s counterclaim1 requests a writ of prohibition
restraining Judge Fiser from entering

future unilateral orders infringing on the powers specifically granted
by the Rules of Superintendence to the Administrative Judge,
including but not limited to all future unilateral orders purporting (1)
to create or fill personnel positions, or (2) to change the job
descriptions of those positions, or (3) to change the fees charged to
probationers or litigants in her court, or (4) to order, without prior
approval and authorization by the Administrative Judge, any
improvements in or in relation to the court’s facilities.

(Emphasis added.)
{¶ 27} The key problem with Judge Kolesar’s request is that he does not
allege that Judge Fiser is “about to exercise judicial or quasi-judicial power.”

1. Judge Fiser argues in her motion for judgment on the pleadings that counterclaims are not
permitted under this court’s rules of practice. We do not reach this question because Judge Kolesar’s
counterclaim otherwise fails to meet the requirements for a writ of prohibition.

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Balas-Bratton, 138 Ohio St.3d 527, 2014-Ohio-1406, 8 N.E.3d 933, at ¶ 19.
Indeed, he does not allege that Judge Fiser is about to take any action at all, let
alone an action that Judge Kolesar seeks to prohibit. See State ex rel. Stark v.
Cuyahoga Cty. Court of Common Pleas, 32 Ohio St.3d 440, 513 N.E.2d 1347
(1987) (writ of prohibition denied because trial court was not about to exercise
unauthorized judicial power). Accordingly, his counterclaim fails to meet the first
requirement for a writ of prohibition.
{¶ 28} Even if Judge Kolesar had alleged that Judge Fiser was poised to
issue the orders that he seeks to restrain,2 Judge Kolesar would still have to show
that the orders would arise from the exercise of judicial power. But Judge Kolesar
concedes that he is seeking to restrain Judge Fiser from issuing administrative
rather than judicial orders. And he does not explain how the issuance of a purely
administrative order (as opposed to one, like his vacating entry, that overrules
another judge’s order and threatens contempt) could arise from the exercise of
judicial power. It follows that because Judge Kolesar has not alleged the exercise
of judicial power, he cannot prevail on his counterclaim.
{¶ 29} In summary, we grant Judge Fiser’s motion for judgment on the
pleadings and dismiss Judge Kolesar’s counterclaim.
IV. CONCLUSION
{¶ 30} For the foregoing reasons, we deny Judge Kolesar’s motion for
judgment on the pleadings, grant a peremptory writ of prohibition that vacates
Judge Kolesar’s vacating entry, grant Judge Fiser’s motion for judgment on the
pleadings, and dismiss Judge Kolesar’s counterclaim.
Judgment accordingly.

2. In his memorandum in opposition to Judge Fiser’s motion for judgment on the pleadings, Judge
Kolesar attempts to expand the scope of his counterclaim to include Judge Fiser’s pay-raise entries.
We conclude that Judge Kolesar has forfeited this claim by failing to raise it earlier. See State ex
rel. R.W. Sidley, Inc. v. Crawford, 100 Ohio St.3d 113, 2003-Ohio-5101, 796 N.E.2d 929, ¶ 32.

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O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, and STEWART, JJ.,
concur.
FRENCH, J., concurs in part and dissents in part and would grant both
motions for judgment on the pleadings and would dismiss both Judge Fiser’s claim
and Judge Kolesar’s counterclaim.
DONNELLY, J., dissents, with an opinion.
_________________
DONNELLY, J., dissenting.
{¶ 31} The reason multijudge courts have administrative judges is to avoid
chaos. If all judges have authority to issue judicial orders related to administrative
matters, such as salary increases for staff, which this court appears to sanction
today, then we should prepare for an avalanche of cases.
{¶ 32} The parties had other options available to resolve this dispute than
litigating it publicly in this court. Given the current impasse, the judges should
establish a formal process that enables judicial colleagues to communicate and
approve written administrative requests in a manner that promotes efficiency and
transparency. In addition, the court could consider establishing a power-sharing
scheme, for instance, alternating on an annual basis which judge is the
administrative judge. In the meantime, in order to maintain public confidence, the
judges need to resolve this dispute—that’s what judges do. The public trusts judges
to competently resolve disputes between parties; those same judges should, at a
minimum, demonstrate the ability to resolve disputes between themselves.
{¶ 33} I served in Cuyahoga County, as one of 34 trial-court judges sitting
on the court of common pleas, general division. We delegated administrative
authority to one judge for a two-year term to promote continuity, collegiality, and
compromise and to minimize confusion. Based on my experience, administrative
judges (however they are appointed—by election, seniority, or some other process)

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have the authority to address a court’s administrative issues. Other judges do not
and should not. Accordingly, I dissent.
_________________
Mayle, L.L.C., Andrew R. Mayle, and Ronald J. Mayle, for relator.
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett,
John A. Borell, and Kevin A. Pituch, Special Assistant Prosecuting Attorneys, for
respondent.
_________________

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