[Cite as State ex rel. Whitehead v. Sandusky Cty. Bd. of Commrs., 133 Ohio St.3d 561, 2012-
Ohio-4837.]




 THE STATE EX REL. WHITEHEAD ET AL., APPELLANTS, v. SANDUSKY COUNTY
                  BOARD OF COMMISSIONERS ET AL., APPELLEES.
        [Cite as State ex rel. Whitehead v. Sandusky Cty. Bd. of Commrs.,
                        133 Ohio St.3d 561, 2012-Ohio-4837.]
Judicial offices—Legislative appointments unconstitutional—One-year term
        unconstitutional—Legislative creation and abolishment of courts—
        Severability of legislation—2012 Am.Sub.H.B. No. 509 unconstitutional
        insofar as it affects Sandusky County Court—Writ of mandamus to
        conduct election.
   (No. 2012-1666—Submitted October 16, 2012—Decided October 18, 2012.)
              APPEAL from the Court of Appeals for Sandusky County,
                            No. S-12-022, 2012-Ohio-4484.
                                  __________________
        Per Curiam.
        {¶ 1} This is an appeal from a judgment granting a writ of mandamus to
compel appellees, the Sandusky County Board of Commissioners and the
Sandusky County Board of Elections, to hold a special election before January 1,
2013, to elect a judge for the newly created Sandusky Municipal Court, for a one-
year term to commence on that date and with an election for a full six-year term to
be held in November 2013. Because the court of appeals erred in granting the
writ of mandamus to compel the special election, we reverse the judgment of the
court of appeals in that regard and grant a writ of mandamus to compel the board
of elections to accept the filed petitions and conduct the November 6, 2012
election for the judges of the Sandusky County Court. We affirm the judgment of
the court of appeals insofar as the court held that a portion of the pertinent
legislation is unconstitutional, but hold that the unconstitutional portion of the
                                  SUPREME COURT OF OHIO




statute may not be properly severed. We also affirm the judgment of the court of
appeals that appellants are not entitled to a writ of prohibition and that appellants
are not entitled to an award of attorney fees.
                                              Facts
         {¶ 2} The Sandusky County Court comprises two districts, which are
referred to as Sandusky County Court District No. 1, based in Clyde, and
Sandusky       County       Court      District       No.    2,    based      in    Woodville.1
http://www.sandusky-county.org/Clerk/County%20Courts. These districts have
part-time judges, R.C. 1907.11(A), with Judge John P. Kolesar serving in District
No. 1 and Judge Herbert Adams serving in District No. 2.                                      See
http://www.sandusky-county.org/Elected%20Officials/County%20Courts/default.
asp. Judge Adams has reached the age of 70, and under the Ohio Constitution,
Article IV, Section 6(C),2 he cannot be reelected or reappointed judge. The
judges are serving six-year terms, R.C. 1907.13, which are scheduled to expire in
the absence of the legislation challenged here on December 31, 2012, and January
1, 2013. Former R.C. 1907.11(A), 2010 Sub.H.B. No. 338.
         {¶ 3} In June 2012, the General Assembly enacted 2012 Am.Sub.H.B. No.
509 (“H.B. 509”), which abolishes the Sandusky County Court and establishes the
Sandusky County Municipal Court effective January 1, 2013. R.C. 1907.11(A)
(“Until December 31, 2006, in the Sandusky county county court, two part-time
judges shall be elected in 1994, terms to commence on January 1, 1995, and
January 2, 1995, respectively.           The judges elected in 2006 shall serve until
December 31, 2012. The Sandusky county county court shall cease to exist on
January 1, 2013”); R.C. 1901.01(H) (“Effective January 1, 2013, there is hereby

1. Although the parties refer to the court as the “Sandusky County Court,” it is referred to in the
pertinent legislation as the “Sandusky county county court.” E.g., R.C. 1907.11(A).

2. This section provides, “No person shall be elected or appointed to any judicial office if on or
before the day when he shall assume the office and enter upon the discharge of its duties he shall
have attained the age of seventy years.”




                                                  2
                                January Term, 2012




established a municipal court within Sandusky county in any municipal
corporation or unincorporated territory within Sandusky county, except the
municipal corporations of Bellevue and Fremont and Ballville, Sandusky, and
York townships, that is selected by the legislative authority of that court”); R.C.
1901.02(A)(30) (“The municipal court established within Sandusky county in any
municipal corporation or unincorporated territory within Sandusky county, except
the municipal corporations of Bellevue and Fremont and Ballville, Sandusky, and
York townships, that is selected by the legislative authority of that court and that,
beginning January 1, 2013, shall be styled and known as the ‘Sandusky county
municipal court’ ”); and R.C. 1901.02(B) (“Beginning January 1, 2013, the
Sandusky county municipal court has jurisdiction within all of Sandusky county
except within the municipal corporations of Bellevue and Fremont and Ballville,
Sandusky, and York townships”).
       {¶ 4} H.B. 509 further amended R.C. 1901.08 to specify that the part-time
judges of the Sandusky County Court will serve as part-time judges of the new
Sandusky County Municipal Court for a one-year term when the new court is
established and the old court is abolished effective January 1, 2013, and that the
six-year term for the new full-time municipal court judgeship will be decided at
an election held in 2013:


               In the Sandusky county municipal court, one full-time
       judge shall be elected in 2013. Beginning on January 1, 2013, the
       two part-time judges of the Sandusky county county court that
       existed prior to that date shall serve as part-time judges of the
       Sandusky county municipal court until December 31, 2013. If
       either judgeship becomes vacant before January 1, 2014, that
       judgeship is abolished on the date it becomes vacant, and the
       person who holds the other judgeship shall serve as the full-time




                                         3
                            SUPREME COURT OF OHIO




       judge of the Sandusky county municipal court until December 31,
       2013.


       {¶ 5} The effective date of H.B. 509 was September 28, 2012.
       {¶ 6} On July 10, 2012, appellants, Roy Whitehead, Michael Benton,
Gregory S. Gerwin, and Richard A. Harman, filed a complaint in prohibition and
mandamus and for a declaratory judgment in an expedited election matter in the
Court of Appeals for Sandusky County.          Appellants are Sandusky County
taxpayers and are the chiefs of police and mayors of Woodville and Gibsonburg,
which are within the territorial jurisdiction of both the existing county court and
the municipal court established by H.B. 509.
       {¶ 7} Appellants sought a declaratory judgment holding H.B. 509 to be
unconstitutional, a writ of prohibition to prevent appellee Sandusky County Board
of Commissioners from expending funds for the municipal court created by H.B.
509, and a writ of mandamus to order appellee Sandusky County Board of
Elections to accept petitions for the office of judge of the Sandusky County Court
and to hold an election in November 2012, which is the regular election cycle for
the county court.
       {¶ 8} After the court of appeals granted an alternative writ and ordered
appellees to file a response to appellants’ complaint, appellants filed a motion for
summary judgment in which they introduced evidence that three candidates had
submitted petitions to run for the two judicial seats for the Sandusky County
Court. Judge Kolesar submitted a petition for the District No. 1 seat that he
currently occupies, and Beth Tischler and Mary Beth Fiser submitted petitions to
run for the District No. 2 seat currently occupied by Judge Adams. The board of
elections rejected all of the petitions, presumably because of H.B. 509.
       {¶ 9} Following the submission of briefs pursuant to an expedited
schedule, on September 27, the court of appeals declared that the amendment in




                                         4
                                January Term, 2012




H.B. 509 (R.C. 1901.08) providing for the one-year appointment of the two
existing, part-time county court judges to the newly created municipal court on
January 1, 2013 is unconstitutional because it provides for the legislative
appointment of the judges to the new judgeship.
       {¶ 10} The court determined that the unconstitutional amendment to R.C.
1901.08 is severable from the constitutional amendments to R.C. 1907.11(A)
abolishing the Sandusky County Court and to R.C. 1901.01 and 1901.02 creating
the Sandusky County Municipal Court.          The court also determined that the
unconstitutional portion of R.C. 1901.08 providing for the one-year appointment
of the county court judges to the municipal court is severable from the
constitutional portion of the statute providing for a 2013 election for the one full-
time judge of the municipal court.
       {¶ 11} For its remedy, the court of appeals granted a writ of mandamus to
compel the board of elections and the board of commissioners to hold a special
election prior to January 1, 2013, to elect one full-time judge for the first year of
the newly created municipal court, with an election for a full six-year term to be
held in November 2013. The court of appeals also denied appellants’ request for
attorney fees.
       {¶ 12} Five days later, on October 2, appellants filed this appeal. The next
day, this court granted appellants’ request for an expedited briefing schedule and
invited the attorney general to file a brief expressing his views. 133 Ohio St.3d
1405, 2012-Ohio-4560, 975 N.E.2d 1024. The court later granted appellants’
motion for a stay of the court of appeals’ judgment ordering the special election
pending the court’s resolution of this appeal. 133 Ohio St.3d 1407, 2012-Ohio-
4662, 975 N.E.2d 1027.
       {¶ 13} The parties submitted briefs, and the attorney general declined the
court’s invitation to submit a brief. This cause is now before the court for our
consideration of the merits.




                                         5
                             SUPREME COURT OF OHIO




                                      Analysis
                                Preliminary Matters
       {¶ 14} Initially, we have jurisdiction to address the merits of this appeal
even though the court of appeals did not expressly rule on appellants’ prohibition
claim. The judgment of the court of appeals fully complied with R.C. 2505.02
and Civ.R. 54(B) notwithstanding its failure to specifically address appellants’
prohibition claim.    The judgment granting the writ of mandamus affected a
substantial right and determined the action. R.C. 2505.02(B)(1). Appellants
sought the writ of prohibition to prevent the board of commissioners from
spending funds for personnel for the newly created Sandusky County Municipal
Court. By granting a writ of mandamus to compel the board of elections and the
board of commissioners to conduct a special election to elect a judge for the new
municipal court for a one-year term commencing on January 1, 2013, the court of
appeals in effect denied or rendered moot appellants’ prohibition claim because it
recognized the viability of the municipal court and its associated funding. And
“ ‘even though all the claims or parties are not expressly adjudicated by the trial
court, if the effect of the judgment as to some of the claims is to render moot the
remaining claims or parties, then compliance with Civ.R. 54(B) is not required to
make the judgment final and appealable.’ ” State ex rel. A & D Ltd. Partnership
v. Keefe, 77 Ohio St.3d 50, 57, 671 N.E.2d 13 (1996), quoting Gen. Acc. Ins. Co.
v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21, 540 N.E.2d 266 (1989).
       {¶ 15} Further, appellants’ claims are not barred by laches, as appellees
suggest. Appellees waived this claim because they did not file a cross-appeal from
the court of appeals’ judgment raising laches, and they admitted in their answer
filed below that appellants acted with the utmost diligence in filing their case.
       {¶ 16} The court of appeals also properly denied appellants’ claim for a
writ of prohibition to prevent the board of commissioners from expending funds
on personnel working for the Sandusky County Municipal Court created by H.B.




                                          6
                                January Term, 2012




509. Appellants did not establish that the board of county commissioners either
exercised or is about to exercise judicial or quasi-judicial power when it
appropriates funding for the new municipal court.        See State ex rel. Bell v.
Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 23.
       {¶ 17} Moreover, insofar as appellants’ request could be considered a
request for a prohibitory injunction rather than a claim for a writ of prohibition,
courts of appeals lack original jurisdiction in prohibitory injunction. State ex rel.
Chattams v. Pater, 131 Ohio St.3d 119, 2012-Ohio-55, 961 N.E.2d 186.
       {¶ 18} Therefore, the court of appeals did not err by in effect denying
appellants’ request for a writ of prohibition.
                  Mandamus: Appellants’ Constitutional Claim
       {¶ 19} In their complaint in the court of appeals, appellants requested a
declaratory judgment that H.B. 509 is unconstitutional. “[N]either this court nor
the court of appeals has original jurisdiction over claims for declaratory
judgment.” State ex rel. Ministerial Day Care Assn. v. Zelman, 100 Ohio St.3d
347, 2003-Ohio-6447, 800 N.E.2d 21, ¶ 22.
       {¶ 20} Nevertheless, it is appropriate for the court to consider the
propriety of appellants’ constitutional claim concerning H.B. 509 in the context of
their mandamus claim because an action for a declaratory judgment would not be
sufficiently speedy in this expedited election case. See generally State ex rel.
Watson v. Hamilton Cty. Bd. of Elections, 88 Ohio St.3d 239, 242, 725 N.E.2d
255 (2000).
       {¶ 21} Therefore, we must first determine whether—as the court of
appeals held—H.B. 509, insofar as it appoints two judges from the Sandusky
County Court to a one-year term on the newly created Sandusky County
Municipal Court beginning on January 1, 2013, is unconstitutional. R.C. 1901.08
is unconstitutional because the General Assembly does not have power to appoint




                                          7
                             SUPREME COURT OF OHIO




judges under the Ohio Constitution. Kovachy v. Cleveland, 166 Ohio St. 388,
389, 143 N.E.2d 579 (1957).
       {¶ 22} In addition, R.C. 1901.08 is unconstitutional because the judges of
the county court were never elected to serve on the municipal court. The General
Assembly has a constitutional duty to provide for the election of a judge upon its
creation of any additional court. Ohio Constitution, Article IV, Section 6(A)(4)
(“Terms of office of all judges shall begin on the days fixed by law, and laws
shall be enacted to prescribe the times and mode of their election”); Ex Parte
Logan Branch of State Bank of Ohio, 1 Ohio St. 432, 434 (1853) (“it is perfectly
clear that, upon the creation of any additional court by the Legislature, the judicial
officer must be elected, as such, by the electors of the district for which such court
is created; and it is not within the competency of the Legislature to clothe with
judicial power any officer or person, not elected as a judge”).
       {¶ 23} Finally, this statute is also unconstitutional because it provides a
one-year term for the first judges on the municipal court. See Ohio Constitution,
Article XVII, Section 1 (“The term of office of all judges shall be as provided in
Article IV of this constitution or, if not so provided, an even number of years not
exceeding six as provided by law”).
       {¶ 24} Therefore, the court of appeals properly determined that appellants
had met their burden of establishing that H.B. 509 is, in part, unconstitutional.
                      Mandamus: Court of Appeals’ Remedy
       {¶ 25} The court of appeals granted a writ of mandamus to compel
appellees, the board of elections and the board of commissioners, to hold a special
election prior to January 1, 2013, to elect a judge for the newly created municipal
court. Appellants claim that the court of appeals erred in ordering this special
election and that the court should have granted their requested writ of mandamus
to compel the appellees to conduct an election for the two county court part-time
judgeships for the six-year terms beginning on January 1 and 2, 2013.




                                          8
                                January Term, 2012




       {¶ 26} To be entitled to the requested extraordinary relief in mandamus,
appellants must establish a clear legal right to the requested relief, a
corresponding clear legal duty on the part of appellees to provide it, and the lack
of an adequate remedy in the ordinary course of law. State ex rel. Waters v.
Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Because of the
proximity of the expiration of the terms of the current judges of the Sandusky
County Court and any election necessary to elect judges to new terms on that
court, appellants lack an adequate remedy in the ordinary course of law. Id.
       {¶ 27} For the remaining requirements, appellants claim that because H.B.
509 is unconstitutional and the pertinent constitutional portions of it cannot be
severed, the board of elections and the board of commissioners have a clear legal
duty under the preexisting law to conduct elections for the next six-year terms of
the two part-time judges of the county court, beginning on January 1 and 2, 2013.
We agree.
       {¶ 28} “When this court holds that a statute is unconstitutional, severance
may be appropriate. * * * Severance is suitable, however, only where it satisfies
our well-established standard.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
845 N.E.2d 470, ¶ 94; see also R.C. 1.50. Under the applicable three-part test, the
court must answer the following questions:


                 “(1) Are the constitutional and the unconstitutional parts
       capable of separation so that each may be read and may stand by
       itself?    (2) Is the unconstitutional part so connected with the
       general scope of the whole as to make it impossible to give effect
       to the apparent intention of the Legislature if the clause or part is
       stricken out? (3) Is the insertion of words or terms necessary in
       order to separate the constitutional part from the unconstitutional
       part, and to give effect to the former only?”




                                         9
                             SUPREME COURT OF OHIO




Geiger v. Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927), quoting State v.
Bickford, 28 N.D. 36, 147 N.W. 407 (1913), paragraph nineteen of the syllabus.
       {¶ 29} The court of appeals determined that the portion of R.C. 1901.08
appointing the existing county court part-time judges to a one-year term as judges
of the newly created municipal court was unconstitutional but severable from the
remaining amended provisions in H.B. 509. We disagree.
       {¶ 30} The court of appeals’ remedy fails for several reasons. First, the
special election ordered is not included in H.B. 509, and courts are forbidden to
add a nonexistent provision to the plain language of legislation. State ex rel.
Steffen v. Court of Appeals, First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-
2430, 934 N.E.2d 906, ¶ 26 (“we are forbidden to add a nonexistent provision to
the plain language of [a statute]”).
       {¶ 31} Second, courts cannot create the legal duty that is enforceable in
mandamus; the creation of this duty is a legislative and not a judicial function.
State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122,
2012-Ohio-4228, 976 N.E.2d 861, ¶ 30, and cases cited therein.
       {¶ 32} Third, in applying the third prong of the severance test, the court
cannot add language to the challenged legislation to sever the constitutional part
from the unconstitutional part. See Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, ¶ 98 (in severing a portion of the felony-sentencing provisions to
save the constitutional part, the court emphasized that “[w]e add no language, and
the vast majority of S.B. 2, which is capable of being read and of standing alone,
is left in place”); State ex rel. Maurer v. Sheward, 71 Ohio St.3d 513, 524, 644
N.E.2d 369 (1994) (court excised unconstitutional portion of statute affecting
governor’s powers of commutations and reprieves, but retained provisions
concerning governor’s power to pardon after determining that the court “need not
add any other language in order to give effect to its regulatory scheme”).




                                        10
                               January Term, 2012




       {¶ 33} Finally, the court of appeals’ special election for a one-year term
violates the Ohio Constitution, Article XVII, Section 1, which requires that if a
term of office for a judge is not provided in Article IV, the term shall be for “an
even number of years not exceeding six.”
                              Application of Geiger
       {¶ 34} Applying the Geiger tripartite severance test, we must first
determine whether the constitutional and unconstitutional parts of H.B. 509
relating to the Sandusky County Court and the Sandusky County Municipal Court
are capable of separation. The pertinent unconstitutional parts of the legislation
involve the appointment of the county court judges to act as municipal court
judges for 2013. The General Assembly is authorized to abolish nonconstitutional
inferior courts like the Sandusky County Court and to create the Sandusky County
Municipal Court. See Ohio Constitution, Article IV, Section 1. The General
Assembly is also authorized to require a November 2013 election for judge of the
newly created municipal court as set forth in amended R.C. 1901.08. See Ohio
Constitution, Article XVII, Section 1 (“Elections for state and county officers
shall be held on the first Tuesday after the first Monday in November in even
numbered years; and all elections for all other elective officers shall be held on
the first Tuesday after the first Monday in November in the odd numbered years”
[emphasis added]); State ex rel. Higley v. Shale, 137 Ohio St. 311, 313, 29 N.E.2d
214 (1940) (municipal court judge is not a state or county officer for purposes of
Article XVII, Section 1); R.C. 1901.06 (“the first election of any newly created
office of a municipal judge shall be held at the next regular municipal election
occurring not less than one hundred days after the creation of the office”); R.C.
3501.01(B) (“ ‘Regular municipal election’ means the election held on the first
Tuesday after the first Monday in November in each odd-numbered year”); see
also R.C. 1901.08 (setting elections in specific odd-numbered years for municipal
courts).




                                        11
                             SUPREME COURT OF OHIO




       {¶ 35} Nevertheless, after excision of the January 1, 2013 date for
abolishing the Sandusky County Court and creating the Sandusky County
Municipal Court and the provision that the county court judges serve as judges of
the municipal court in 2013, the remainder of the amended statutes cannot stand
by themselves.
       {¶ 36} Appellees suggest that simply replacing the January 2013 date with
January 2014 would allow the statutes to stand. Although “the institution of a
new municipal court shall take place on the first day of January next after the first
election for the court” under R.C. 1901.06 and the November 2013 election is
specified in amended R.C. 1901.08, the statutes do not specify January 1, 2014, as
the date of the court’s establishment. With the phrase “January 1, 2013,” excised
from the amended R.C. 1907.11(A), leaving the mere statement that “[t]he
Sandusky county county court shall cease to exist,” there is no existing statutory
provision that would supply the date of January 1, 2014, as the end date for the
existing county court.
       {¶ 37} For the second part of the severance test, the unconstitutional part
of H.B. 509 relating to Sandusky County is so connected to the general scope of
that county’s entire legislation as to make it impossible to give effect to the
apparent intention of the General Assembly if that part is stricken.            The
preeminent intent of the General Assembly in enacting this legislation is to
abolish the Sandusky County Court and its part-time judges and to replace it with
the newly created Sandusky County Municipal Court and its full-time judge on
the specified date of January 1, 2013. To substitute January 1, 2014, as the
applicable date contravenes that manifest intent.
       {¶ 38} Finally, severance fails to satisfy the third part of the test. Much
like the court of appeals’ remedy, the remedy advocated by appellees adds
language to the statute. We cannot replace the statutory language and hold that
severance is appropriate.




                                         12
                               January Term, 2012




        {¶ 39} This result is supported by precedent. In Franklin Cty. Bd. of
Elections v. State ex rel. Schneider, 128 Ohio St. 273, 191 N.E. 115 (1934), we
affirmed a judgment granting a writ of mandamus to compel a board of elections
and its members to hold a regular election for county recorder for a two-year term
in light of the unconstitutionality of a statute that extended the term of incumbent
recorders for two years with four-year terms thereafter.       Although the latter
provision for county recorders to be elected to four-year terms was constitutional
by itself, because it was inseparably connected with the unconstitutional two-year
unelected extension of incumbent county recorders’ original two-year terms, the
entirety of the amendments fell:


               If it were not for the fact that the two sections when
        considered together do away with the election of 1934, tenable
        argument could be advanced favoring the constitutionality of
        section 2750, General Code; but the sections are so ‘inseparably
        connected’ that both must fall, and the repealing section must fall
        with them.


Id. at 294.
        {¶ 40} Similarly, although the portion of H.B. 509 abolishing the
Sandusky County Court and replacing it with the Sandusky County Municipal
Court after an election for judge of the municipal court at the regular municipal
election in November 2013 would be constitutional, that portion of the enactment
is inseparably connected to the unconstitutional part of H.B. 509 specifying the
date of January 1, 2013, as the date that the municipal court will replace the
county court and further legislatively appointing the two judges of the county
court to serve a one-year term as judges of the newly created municipal court in
2013.




                                        13
                             SUPREME COURT OF OHIO




       {¶ 41} Therefore, the entire part of H.B. 509 addressing the abolition of
the Sandusky County Court and its replacement with the newly created Sandusky
County Municipal Court is inseparable into constitutional and unconstitutional
parts and must be stricken as unconstitutional. But the General Assembly is free
to revisit this issue and to enact a new act to validly abolish the county court and
to replace it with the municipal court on January 1, 2014. See, e.g., Schneider, at
paragraph five of the syllabus (“An act of the General Assembly, which was
unconstitutional at the time of enactment, can be revivified only by
reenactment”); Geisinger v. Cook, 52 Ohio St.2d 51, 57, 369 N.E.2d 477 (1977)
(“If the court is properly abolished by the General Assembly, the term of one
holding the office of judge of that court is terminated”); Greene v. Cuyahoga Cty.,
195 Ohio App.3d 768, 2011-Ohio-5493, 961 N.E.2d 1171, ¶ 35-38 (power to
abolish an office is as unrestricted as the power to create an office, and an office
can be abolished midterm).
       {¶ 42} Thus, the Sandusky County Court remains in existence, and
appellants are entitled to a writ of mandamus to compel the regularly scheduled
election on November 6, 2012, for the part-time judges of the two districts for the
specified six-year terms. See R.C. 1907.13 (“Judges shall be elected by the
electors of the county court district at the general election in even-numbered years
as set forth in section 1907.11 of the Revised Code for a term of six years
commencing on the first day of January following the election for the county
court”).
       {¶ 43} Therefore, the court of appeals erred in ordering a special election
for a one-year term for the newly created municipal court and in not granting a
writ of mandamus ordering the board of elections to conduct the regular
November 6, 2012 election for the Sandusky County Court. H.B. 509, insofar as
it addresses the abolition of the Sandusky County Court and its replacement by
the newly created Sandusky County Municipal Court on January 1, 2013, is




                                        14
                                January Term, 2012




unconstitutional,   and   the   constitutional   part   is   inseparable   from   the
unconstitutional part.
                                   Attorney Fees
       {¶ 44} The court of appeals did not err in denying appellants’ request for
attorney fees under R.C. 309.13 and 2335.39.
       {¶ 45} The civil action contemplated by R.C. 309.12 and 309.13 is one in
prohibitory injunction, which that court lacks original jurisdiction to consider.
See Chattams, 131 Ohio St.3d 119, 2012-Ohio-55, 961 N.E.2d 186; State ex rel.
Stamps v. Automatic Data Processing Bd. of Montgomery Cty., 42 Ohio St.3d
164, 538 N.E.2d 105 (1989) (court denied writ of mandamus brought as an R.C.
309.13 taxpayer action because it sought to enjoin conduct). And the court of
appeals in effect denied appellants’ sole preventive claim that it had original
jurisdiction to consider—their claim for a writ of prohibition to prevent the board
of commissioners’ expenditure of funds for the newly created municipal court.
       {¶ 46} Appellants are also not entitled to an award of attorney fees under
R.C. 2335.39, which is inapplicable to mandamus actions. State ex rel. Ohio
Liberty Council v. Brunner, 126 Ohio St.3d 1510, 2010-Ohio-3331, 930 N.E.2d
330; State ex rel. Myles v. Brunner, 120 Ohio St.3d 1413, 2008-Ohio-6166, 897
N.E.2d 650.
                                    Conclusion
       {¶ 47} Based on the foregoing, the court of appeals correctly held that
H.B. 509 is unconstitutional insofar as it appoints judges of the Sandusky County
Court to the newly created Sandusky County Municipal Court for 2013. The
court of appeals erred, however, in granting a writ of mandamus to compel
appellees to conduct a special election for judge of the Sandusky County
Municipal Court for a one-year term in 2013. Appellants have established their
entitlement to a writ of mandamus to compel appellees to conduct the November
6, 2012 election for the two part-time judgeships for the Sandusky County Court.




                                         15
                            SUPREME COURT OF OHIO




       {¶ 48} Therefore, we reverse the judgment of the court of appeals insofar
as it grants a writ of mandamus to compel a special election for judge of the
municipal court for the one-year term commencing January 1, 2013. We grant a
writ of mandamus to compel the board of elections to accept the filed candidate
petitions for the two offices of judge of the Sandusky County Court and to
conduct the November 6, 2012 election for the county court. Finally, we affirm
the judgment denying appellants’ requests for a writ of prohibition and for
attorney fees.
                                                          Judgment accordingly.
       PFEIFER, ACTING C.J.,         and    LUNDBERG STRATTON,      O’DONNELL,
LANZINGER, CUPP, MCGEE BROWN, and SUNDERMANN, JJ., concur.
       O’CONNOR, C.J., not participating.
       J. HOWARD SUNDERMANN JR., J., of the First Appellate District, sitting for
O’CONNOR, C.J.
                                   _____________
       Mayle, Ray & Mayle, L.L.C., Andrew R. Mayle, Jeremiah S. Ray, and
Ronald J. Mayle, for appellants.
       Russell V. Leffler, Huron County Prosecuting Attorney, for appellees.
                            ____________________




                                           16
