State ex rel. Jefferson County Children Services Board v. Hallock

Douglas, J.,

dissenting. I find that the issue of whether respondent had authority to preclude appointed counsel, rather than the county prosecutor, from representing relator in the court of common pleas, juvenile division, is properly subject to appeal. As such, relator has an adequate remedy at law and the grant of a writ of prohibition is improper. Moreover, I find upon examination of the record and pertinent law that relator was authorized to preclude appointed counsel from appearing in his court as general counsel for relator.

R.C. 305.14 provides, in pertinent part:

“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 *184such 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.” (Emphasis added.)

In 1981, upon consideration of this statute, this court held:

“1. 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 officer, except where the prosecuting attorney has a conflict of interest and refuses to make application.” (Emphasis added.) State, ex rel. Corrigan, v. Seminatore (1981), 66 Ohio St. 2d 459 [20 O.O.3d 388], paragraph one of the syllabus.

The court elucidated further:

“Under ordinary circumstances, the common pleas court should not authorize the appointment of counsel for any county board or officer, even with respect to an action pending in the court, unless an application for such appointment is made by both the prosecuting attorney and the board of county commissioners. Application by the prosecuting attorney ordinarily is necessary because the counsel being appointed will fulfill a duty otherwise imposed by law upon the prosecuting attorney.” Id. at 463.

Thus, pursuant to the strictures of R.C. 305.14, as previously interpreted by this court, if a board seeking the appointment of independent counsel can demonstrate that its interests are adverse to those of the prosecutor, then the court of common pleas, including that court’s juvenile division, is authorized to appoint such counsel solely on the basis of the board of commissioners’ authorization. If, however, the board seeking independent counsel cannot show a conflict of interest, then both the board of commissioners and the prosecutor must authorize the appointment. Absent both authorizations under these circumstances, the court is powerless to act.

In this case, the court of common pleas, general division, appointed, ostensibly pursuant to R.C. 305.14, independent counsel to represent relator. In so ruling, the court failed to limit counsel’s authority to matters pertaining to relator’s interest specifically adverse to the prosecutor’s investigation; seemingly, the court’s judgment authorized independent counsel to advise relator, to the exclusion of the prosecutor’s services, on all legal matters pertaining to relator. I, however, find no evidence in the record of a conflict of interest between the parties’ positions to justify such an expansive grant of authority.

The only interest that relator can demonstrate as being adverse to the prosecutor’s centers on the prosecutor’s investigation of neglect to the children in relator’s care. Disputes over contractual matters or general discord and frustration between the parties, as cited by the common pleas court, general division, do not rise to the level of conflicts of interest. Additionally, the record is replete with testimony of relator stating that it was, and is, quite pleased with the services of the prosecutor’s office and *185can find no conflict whatsoever. Because the prosecutor’s positions or interests are not in conflict with relator’s interests and any other matter apart from the prosecutor's investigation, the prosecutor should retain the authority to represent, as is his statutory duty, relator on all other matters.

The converse of this position is perilous indeed. As a practical matter, for example, any time a prosecutor initiates an investigation into the activities of a county commissioner, board, officer, library or township officer, is the prosecutor to be foreclosed from serving that respective entity’s other public-related legal needs? If this practice would become the rule, the prosecutor would be effectively paralyzed in all but investigative and prosecutorial endeavors. This result was never the aim of R.C. 309.09 or 305.14.

Accordingly, because I find that respondent is fully justified and authorized to preclude appointed counsel from representing relator on all matters in respondent’s court, I would deny the writ of prohibition.