Greene County does not have to pay the more than $66,000 in attorney fees and expenses incurred by the county probate court judge during a legal dispute about courtroom use because the judge did not follow the process in state law for securing payment, the Ohio Supreme Court ruled today.

The Supreme Court voted 5-2 to reject Greene County Probate Judge Thomas O’Diam’s request to order the Greene County Board of Commissioners to pay his legal expenses for his effort to take control of Courtroom 3 in the Greene County Courthouse. Judge O’Diam had maintained that the current facilities for the probate court are not sufficient.

Writing for the Court majority, Justice R. Patrick DeWine explained that Judge O’Diam failed to follow the procedure mandated by Ohio law for the appointment of outside counsel and instead attempted to rely on the court’s inherent authority to order the county commission to pay his legal fees. However, a court’s inherent authority “does not allow a judge to sidestep an otherwise constitutional statutory process,” Justice DeWine wrote.

“Judges cannot simply demand that the taxpayers pay for their every wish without complying with the lawful processes set forth by the General Assembly.“ Justice DeWine wrote.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Michael P. Donnelly, and Melody J. Stewart joined the majority opinion.

In a dissenting opinion, Justice Judith L. French maintained the majority rewrites decades of Court precedent  on the enforcement of court funding orders. She wrote that the Supreme Court has consistently entitled judges to make reasonable and necessary funding requests, and that burden is on the Board of Commissioners to show the funding request is unreasonable. 

Justice Patrick F. Fischer joined Justice French’s dissent.

Attempt to Control Courtroom Rejected
In March 2018, Judge O’Diam issued two orders to take control of Courtroom 3, which was under the control of the general division of the Greene County Common Pleas Court. Both orders also sought to compel the county to pay for any legal expenses “arising out of, occasioned by, or directly or indirectly relating to” any proceedings related to the board’s failure to comply with the orders. Judge O’Diam sought a writ of mandamus from the Supreme Court directing the county to comply with his orders. The Court rejected the request in May 2019. (See Probate Judge Blocked from Taking Control of Greene County Courtroom.)

The Court’s decision in May did not settle whether the judge’s legal expenses should be paid, but requested that the parties submit evidence and briefs on the issue. Today’s decision addresses the funding issue.

County Seeks Alternatives to Address Courtroom Space
In early 2017, Judge O’Diam became concerned about deficiencies with the probate court facilities and believed Courtroom 3, which was being used by the general division of the common pleas Court, was underutilized. He proposed that the probate and general divisions share the courtroom. The county rejected the idea, and proposed to build a new probate court at the facility where the county’s juvenile court is located, several miles from downtown Xenia.

By law, the county prosecutor represents public officials in legal disputes. By mid-July 2017, Judge O’Diam came to believe that the county prosecutor would have a conflict of interest that would have prevented the judge from receiving adequate representation. The judge made inquiries with five law firms, which the Supreme Court noted appeared to have happened without obtaining advice from the prosecuting attorney on how to handle potential conflicts of interest.

Kathleen Trafford, an attorney with Porter, Wright, Morris & Arthur in Columbus, offered to represent Judge O’Diam under a fee structure in which she would be paid $350 an hour, while other attorneys assisting on the case would be paid $300 and $250 an hour. Judge O’Diam agreed and accepted Porter Wright’s offer in February 2018.

Judge O’Diam issued his order to take control of Courtroom 3 in March 2018. Three days after he sent the orders, the county commission approved a resolution to construct a new probate court in the basement of the juvenile justice center building.  Judge O’Diam then issued an order to invalidate the county’s resolution.

Funding Process Begins
Citing R.C. 305.14(A), Judge O’Diam directed the prosecuting attorney and the county commission to apply to the common pleas court for approval to employ a private firm to represent him. The county made the application and, the next day, the county filed for a writ of prohibition with the Supreme Court to block Judge O’Diam’s orders.

While the issue over the legality of the courtroom control order was pending at the Supreme Court, the funding matter proceeded in Greene County. Judge Adolfo Tornichio authorized the county to employ a private firm, and the county issued a request for proposals. Porter Wright was the only firm to respond, but declined to provide services at the reduced hourly rate sought by the county.

The county again solicited proposals and received five offers ranging from $165 to $350 per hour. In July 2018, Judge O’Diam announced he would not participate in interviewing more firms and stated that Porter Wright would represent him.

Three State Laws Control Funding Requests
The majority opinion explained that a public official’s request for funding for outside legal representation at county expense is governed by a process set out in R.C. 309.09(A), R.C. 305.14(A), and R.C. 305.17.

The laws state that only the prosecuting attorney will represent county officers in legal matters. But, when necessary, the county commission and prosecuting attorney can request to employ outside legal counsel. Under R.C. 305.17, the county commission is authorized to “fix the compensation” of all outside legal counsel.

The majority explained that absent some constitutional infirmity in the statutory process, county officials, including judges, had to use that process to procure outside counsel.  And the majority concluded that there was no constitutional infirmity with the process.

The majority rejected Judge O’Diam’s argument that his inherent powers as a judge entitled him to hire counsel outside the statutory process.

“[T]he inherent powers of the courts do not license a judge to thwart the otherwise constitutional statutory processes for hiring counsel,” the opinion stated.

The Court noted that it has allowed a court to invoke its inherent powers to employ private attorneys, but commented that has happened only in the rare cases where the process in state law has “broken down in some way.” 

The opinion stated that the process had not broken down in Greene County. Once Judge O’Diam issued his order to have the county pay for his legal expenses, the commission and the prosecutor made the request to the common pleas court, and the common pleas court authorized hiring outside counsel.

Because the process had not broken down, and the laws do not appear to violate the separation of powers principles, Judge O’Diam had to follow the process.

“Judges, like everyone else, must comply with valid laws,” the Court concluded.

Judges Need Not Follow Process, Dissent Maintained
Justice French explained the Supreme Court has long recognized courts have inherent powers to be free from excessive control by other branches of government. The dissenting opinion stated it is in the public interest when the judicial branch cooperates with the executive and legislative branched, but that does not require that a “court surrender its inherent powers to another branch.”

The dissenting opinion stated the Supreme Court has previously held that laws infringing on the court’s inherent powers are “constitutionally infirm.” Justice French wrote the statutes may not be unconstitutional in general, but raise a constitutional issue in a dispute between the court and the county commission where the laws can be applied to impede the court’s “inherent ability to retain and compensate outside counsel.”

Rather than ignore the separation-of-powers concerns, the dissent stated the better approach is to use the balancing test adopted by the Court in which “reasonable and necessary” funds are paid. Although Porter Wright began discussing and researching Judge O’Diam’s issues in mid-2017, the firm did not charge for any services until after the judge issued his March 2018 orders. The dissent found the roughly $66,000 in attorney fees, expenses, and court costs were reasonable and maintained the county should pay them.

2018-0447. State ex rel. O’Diam v. Greene Cty. Bd. of Commrs., Slip Opinion No. 2020-Ohio-3503.

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