State ex rel. Mazzaro v. Ferguson

Douglas, J.,

concurring. I concur in the majority’s well-reasoned opinion, affirming the judgment of the court of appeals, regarding the duty of appellant-Auditor to produce for inspection the records sought by appellee.

I also concur in the judgment of the majority in affirming the judgment of the court of appeals regarding the awarding of attorney fees. I write separately only to once again express my concern that the majority’s discussion seems to indicate that such awards must be based upon some *42nebulous theory of “public benefit,” “creation of a fund,” “lack of reasonableness” and/or “good faith, bad faith.” The majority does this by citing State, ex rel. Fox, v. Cuyahoga Cty. Hosp. System (1988), 39 Ohio St. 3d 108, 529 N.E. 2d 443. In Fox, the majority likened a mandamus action pursuant to R.C. 149.43 to that of a taxpayer’s suit brought pursuant to R.C. 733.61. Obviously, without any more discussion needed, these are different types of actions, the language of each statute differs from the other, and the remedies mandated are not related.

The language of R.C. 149.43(C) is unambiguous and explicit. It should not be ignored or rationalized away by setting up “tests,” which are not contained in the statute, for its implementation. In a welcome respite from some of our recent decisions on this subject, the majority, in the case before us, reaches the right conclusion in affirming the award of attorney fees to appellee. The message is clear. It should go forth without restraint.