[Cite as State ex rel. Atkins v. Harrison Cty. Commrs., 2010-Ohio-3160.]
                            STATE OF OHIO, HARRISON COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO, ex rel.                                  )
ANDREW ATKINS, HARRISON COUNTY                          )
VETERANS SERVICE COMMISSION,                            )              CASE NO. 09-HA-7
                                                        )
        RELATOR,                                        )                  OPINION
                                                        )                   AND
VS.                                                     )              JUDGMENT ENTRY
                                                        )
HARRISON COUNTY BOARD OF                                )
COUNTY COMMISSIONERS,                                   )
                                                        )
        RESPONDENT.                                     )

CHARACTER OF PROCEEDINGS:                               Petition for Writ of Mandamus

JUDGMENT:                                               Petition for Writ of Mandamus
                                                        dismissed.

APPEARANCES:
For Relator                                             Attorney Michael Moses
                                                        330 South High Street
                                                        Columbus, Ohio 43215

For Respondent                                          Attorney Christopher Berhalter
                                                        Belmont County Prosecuting Attorney
                                                        147 W. Main Street
                                                        St. Clairsville, Ohio 43950




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                        Dated: June 30, 2010
[Cite as State ex rel. Atkins v. Harrison Cty. Commrs., 2010-Ohio-3160.]
PER CURIAM:

        {¶1}     This original action comes before this Court on a complaint for a writ of
mandamus filed by Relator Andrew Atkins (Atkins), seeking an order to compel
Respondent Harrison County Board of County Commissioners (the Board) to release
appropriated funds to the Harrison County Veterans Service Commission (the VSC).
The Board timely answered the complaint, and subsequently filed a motion for
summary judgment, requesting that this Court grant their motion and dismiss
Relator’s action.
        {¶2}     Among its statutory duties, the Board is charged with approving the
budget and appropriating funds for the VSC. (Answer ¶3.) R.C. 5901.11 governs
funding and budgetary procedures for a veterans service commission, providing:
        {¶3}     “On or before the last Monday in May in each year, the veterans service
commission shall meet and determine in an itemized manner the probable amount
necessary for the aid and financial assistance of persons entitled to such aid and
assistance and for the operation of the veterans service office for the ensuing year.
After determining the probable amount necessary for such purposes, the commission
shall prepare and submit a budget in the manner specified in division (C) of section
5705.28 of the Revised Code to the board of county commissioners which may
review the proposed budget and shall appropriate funds to the commission pursuant
to Title III, section 5705.05, and sections 5705.38 to 5705.41 of the Revised Code.
The board, at its June session, shall make the necessary levy, not to exceed five-
tenths of a mill per dollar on the assessed value of the property of the county, to raise
the amount that the board approves. The veterans service commission may, prior to
the first day of October in any year, submit to the board of county commissioners a
written request for a hearing before the board to discuss the commission’s budget
request for the ensuing fiscal year. Upon receiving this request, the board shall
provide for such a hearing at a regular or special meeting of the board to be held no
later than fourteen days prior to the board’s adoption of a permanent appropriation
measure under section 5705.38 of the Revised Code.”
        {¶4}     On or about May 27, 2008, after estimating the necessary operating
                                                                                 -2-


expenses for the coming year, and determining the probable amount necessary for
the aid and financial assistance of all eligible persons, the VSC submitted an itemized
budget to the Board for the fiscal year 2009, requesting $101,596.00. (Amended
Complaint ¶7.) The amount requested was within the five-tenths mill limitation set
forth in the statute. (Answer ¶4.) Whereas past budgets included line-item requests
for funds to cover burials, grave markers, and Memorial Day expenses, the 2009
budget proposal did not request any funds for these services. (Deposition Exhibits B
& C; Answer Exhibit 1.) On or about June 18, 2008, the VSC sent written notice to
the Harrison County Auditor, asking that he remove these three expenditures from
the line items in the VSC’s budget, asserting that such services were the financial
responsibility of the Board’s office. (Motion for Summary Judgment Exhibit 1.)
      {¶5}   The Board initially rejected the proposed 2009 budget for failing to
include any amounts in the line items for burials, grave markers, and Memorial Day
expenses. (Deposition of Harrison County Commissioner Barbara Pincola, Pg. 11,
Lines 22-25; hereinafter Pincola Deposition.) Through subsequent informal meetings
and discussions, the Board agreed with the VSC to remove the line items of the
grave markers and Memorial Day expenses from the VSC’s budget and to have them
placed in the Board’s budget. (Pincola Deposition Pg. 56, lines 14-19; Pg. 58, Lines
14-23; Pg. 66, Lines 17-25; Motion for Summary Judgment Exhibit 2.) As such, the
only disputed line item remaining in the VSC’s budget was for burials. The Board
thus approved the VSC’s budget for $101,600.00, the maximum allowed by statute.
Id.
      {¶6}   During the budget negotiation process, the Office of the Prosecuting
Attorney for Harrison County (the PA) issued two opinions purporting to clarify which
governmental division was responsible for the contested expenses. (Amended
Complaint, Appendix C.) The first opinion, dated September 19, 2008, asserted that
all of the funding for indigent burials, grave markers, and Memorial Day expenses
must come from the general fund and be separate from the VSC’s budget. Id.
      {¶7}   The second opinion, dated February 4, 2009, sought to interpret Ohio
                                                                              -3-


Attorney General’s Opinion No. 2008-033, which was released on October 2, 2008.
Id. The Attorney General’s opinion addressed the same matter that was in dispute
between the Board and the VSC, and seemingly reached a different conclusion than
the first opinion from the PA. 2008 Ohio Atty.Gen.Ops. No. 2008-033. Pursuant to
the Attorney General’s opinion, the second PA opinion claimed that, while funding for
grave markers and Memorial Day expenses were exclusively the province of the
Board, funds for the burial of indigent veterans could be paid from the VSC’s budget.
(Amended Complaint, Appendix C.)
      {¶8}   Despite the inconsistent statutory interpretations and the VSC’s
apparent dissatisfaction with their budget as approved by the Board, the VSC never
requested a hearing on the matter, as prescribed by R.C. 5901.11. See R.C.
5901.11, supra. (Answer ¶23.)
      {¶9}   On May 1, 2009, Atkins filed the initial complaint for writ of mandamus,
which he subsequently amended. The complaint alleged that the Board withheld
funds that were lawfully submitted and budgeted, and otherwise interfered with the
VSC’s discharge of its lawful duties. (Amended Complaint ¶¶15-19.) Atkins sought to
compel the Board to authorize the release or transfer of appropriated funds for the
fiscal year 2009 to the VSC. (Amended Complaint.)
      {¶10} In its answer, the Board maintained that the initial rejection of the VSC’s
budget request was appropriate, as the Board is charged with ensuring that all
budget proposals are lawful, and the VSC’s initial request, as submitted, failed to
meet all statutory requirements. (Answer ¶25.) Further, the answer asserts that the
Board ultimately approved the VSC’s budget in accordance with the maximum
allowed by R.C. 5901.11, and that mandamus should not issue because the VSC
had an adequate remedy in the form of a budget-review hearing, also provided for in
the statute. (Answer ¶¶23-4.)
      {¶11} On May 5, 2010, the Board filed a motion for summary judgment
requesting that this court grant its motion, dismissing Atkins’s mandamus action. On
May 21, 2010, the VSC filed a memorandum in opposition to respondent’s motion for
                                                                              -4-


summary judgment, or in the alternative, cross-motion for summary judgment.
      {¶12} As a preliminary matter, it should be noted that this court has the ability
to hear an original mandamus action pursuant to Article IV, Section 3(B)(1) of the
Ohio Constitution and R.C. 2731.02.
      {¶13} To be entitled to summary judgment, respondent must demonstrate
that: (1) no genuine issue of material fact exists; (2) respondent is entitled to
judgment as a matter of law; and (3) even construing the evidence most strongly in
favor of relator, reasonable minds could come to but one conclusion, and that
conclusion is adverse to the relator. State ex rel. Grady v. State Emp. Relations Bd.
(1997), 78 Ohio St.3d 181, 183, 677 N.E.2d 343. Respondent must be granted
summary judgment when he has satisfied all three prongs of the standard in regard
to at least one element of a mandamus claim. State ex rel. DeVengencie v. Biviano,
11th Dist. No. 2008-T-0070, 2010-Ohio-706, at ¶41. Furthermore, the non-moving
party may not merely rest on its allegations.      A properly supported motion for
summary judgment forces the non-moving party to produce evidence on any issue for
which it bears the burden of proof. Drescher v. Burt (1996), 75 Ohio St.3d 280, 293-
294, 662 N.E.2d 264.
      {¶14} The requisites for mandamus are well established: (1) the relator must
have a clear legal right to the requested relief; (2) the respondent must have a clear
legal duty to perform the requested act; and (3) the relator has no plain and adequate
remedy at law. State ex rel. Frease v. Wellington, 7th Dist. No. 02-CA-54, 2002-Ohio-
7455, at ¶4; State ex rel. Hodges v. Taft (1992), 64 Ohio St.3d 1, 3, 591 N.E.2d 1186.
However, in mandamus proceedings, the creation of the legal duty that a relator
seeks to enforce is the distinct function of the legislative branch of government, and
courts are not authorized to create the legal duty enforceable in mandamus. State ex
rel. Lecklider v. School Emp. Retirement Sys., 104 Ohio St.3d 271, 2004-Ohio-6586,
819 N.E.2d 289, at ¶23.
      {¶15} The Ohio Supreme Court has plainly articulated its reluctance to grant
such measures, stressing that mandamus is an extraordinary remedy, which is to be
                                                                                -5-


exercised with caution and only when the right is clear. It should not issue in doubtful
cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 166, 364 N.E.2d 1;
see, also, State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio
St.2d 141, 161, 228 N.E.2d 31 (“The facts submitted and the proof produced must be
plain, clear and convincing before a court is justified in using the strong arm of the
law by way of granting the writ.”). Further, the writ is not demandable wholly as a
matter of right. Id. at 161, 364 N.E.2d 1. Rather, the issuance of a writ of mandamus
rests within the sound discretion of the court to which application for the writ is made,
and depends upon the facts and circumstances of the case, including the relator’s
rights, the relator’s conduct, the equity and justice of the relator’s case, and public
policy. Id. at 161, 364 N.E.2d 1.
       {¶16} As acknowledged by both parties, the Ohio Supreme Court’s decision in
Lynch v. Gallia County Board of Commissioners (1997), 79 Ohio St.3d 251, 680
N.E.2d 1222, is controlling in the present matter.       In Lynch, as here, a county
veterans service commission sought a writ of mandamus to compel the board of
county commissioners to appropriate requested funds for the VSC’s budget. Id. at
253, 680 N.E.2d 1222.      Upon reviewing R.C. 5901.11 (which, at that time, had
recently been amended to its current version), the court held that the statute
“imposes a mandatory duty upon the board of county commissioners to fund a lawful
budget request of a veterans service commission up to the five-tenths mill limitation
set forth in the statute.” Id. at 253, 680 N.E.2d 1222. Thus, the court determined that
the General Assembly unambiguously defined a clear legal right vested in a veterans
service commission to have a lawful budget approved, and a corresponding duty
incumbent upon a board of commissioners to provide the necessary funding. Id. at
253, 257-258, 680 N.E.2d 1222.
       {¶17} In distinguishing the statute from its prior version, the court emphasized
that, in the amended version, the state legislature omitted language that previously
granted a board of county commissioners the ability to revise a VSC’s proposed
budget. Id. at 254, 680 N.E.2d 1222. Citing the unique status occupied by veterans
                                                                               -6-


service commissions, the court found that the General Assembly intended for VSCs
to have authority over their budgets, without discretionary oversight by the boards of
county commissioners. Id. at 257-8, 680 N.E.2d 1222.           Moreover, a legislative
amendment must be presumed to change the effect and operation of the law. Id. at
257-8, 680 N.E.2d 1222, citing Leader v. Glander (1948), 149 Ohio St. 1, 5, 77
N.E.2d 71. As such, the court pronounced that, in light of the amendment, a board of
commissioners now had a very limited function in approving a VSC’s budget – the
Board could review a budget to ensure that it conformed to statutory requirements,
but it could not unilaterally revise a lawful budget. Lynch at 257, 680 N.E.2d 1222.
      {¶18} In the present action, the VSC claims that the Board’s initial rejection of
its proposed budget, and the Board’s insistence on including certain line items in the
VSC’s budget, constituted an impermissible attempt to revise the VSC’s budget. The
Board maintains that, in reviewing the VSC’s budget, it determined that the VSC’s
failure to include funding for indigent burials rendered the proposed budget unlawful,
and so rejecting the budget was appropriate. This point of contention seems to stem,
at least in part, from the conflicting opinions issued by the PA. The VSC wishes to
rely on the first opinion, which declared that burials, grave markers, and Memorial
Day expenses should all be paid from the county general fund, and not specifically
from the VSC’s budget. However, the PA clearly modified its position subsequent to
the Attorney General issuing her own opinion on the matter.         In reviewing R.C.
5901.11 in the context of the larger statutory scheme laid out in R.C. Chapter 5901,
the Attorney General stated, “although the longstanding practice of using VSC
moneys for burial assistance is not compelled by R.C. 5901.32, we find that it is
permitted under R.C. 5901.32.” 2008 Ohio Atty.Gen.Ops. No. 2008-033 at 11. The
PA’s opinion echoed this conclusion, stating that the Board must pay for grave
markers and Memorial Day expenses, but burial expenses could come from the
VSC’s budget. Consequently, the Board conceded that it could not compel the VSC
to include line items for grave markers and Memorial Day expenses, and approved
the VSC’s budget in full. The VSC, however, seems to contend that, because none
                                                                                 -7-


of these interpretations of R.C. Chapter 5901 mandates that burial funding come from
the VSC’s budget, the Board cannot make approval of the VSC’s budget contingent
on its inclusion as a line item.
       {¶19} In Lynch, however, the Ohio Supreme Court seemed to take a more
definitive stance on whether burials should be included in the VSC’s budget. Lynch at
256, 680 N.E.2d 1222. In assessing the comprehensive statutory scheme, the court
held that “R.C. 5901.25 through 5901.32 are mandatory provisions directing the
veterans service commission to assist in the burial of indigent veterans. A lawful
commission budget must include funding for this activity.” (Emphasis added.) Id. at
257, 680 N.E.2d 1222. The Lynch court further acknowledged that veterans service
commissions are endowed with a “special public trust to see that those who have
served our country receive a decent burial and are remembered with honor, and that
they and their families are kept from indigency.” Id. at 258, 680 N.E.2d 1222. The
Attorney General’s opinion, however, offers a less conclusive reading of Lynch,
positing that the reference to “this activity” is too ambiguous to provide a definitive
resolution. 2008 Ohio Atty.Gen.Ops. No. 2008-033 at 10. Ohio Attorney General
Opinions, while perhaps useful as guidance, lack any precedential value and do not
bind the courts of Ohio as controlling authorities. Gen. Dynamics Land Sys., Inc. v.
Tracy (1998), 83 Ohio St.3d 500, 504, 700 N.E.2d 1242. As such, it is the opinion of
this court that the Ohio Supreme Court appreciated the gravity of the duty delegated
to the VSC and that the plain language of its opinion, read in its entirety, dictates that
responsibility for indigent burials – financial and otherwise – rests solely with the
VSC.
       {¶20} Consequently, while R.C. 5901.11 imposes a clear legal duty on the
Board to fund the VSC’s lawful budget requests, the Board did not exceed its
authority by requiring the VSC to fund burials from its own budget. R.C. Chapter
5901 and the Ohio Supreme Court’s decision in Lynch mandate that funding for such
activity be included in the VSC’s budget, so it was reasonable and appropriate for the
Board to insist on placing the line item for burials in the VSC’s budget. Otherwise,
                                                                               -8-


the budget as submitted should rightfully have been rejected as unlawful. And if a
budget request is unlawful, there is no legal right and corresponding duty to satisfy a
request for a writ of mandamus.
         {¶21} Further, in previous years, the VSC’s budget had included funding
requests and approvals for not only burials, but grave markers and Memorial Day
expenses as well. It is clear, even applying the less stringent position of the Attorney
General, that it was not unreasonable for the Board to assert that burial expenses
were the responsibility of the VSC. Moreover, at no time did the Board ever promise
to the VSC a lesser amount than the full five-tenths mill limitation set forth in the
statute. The Board merely stipulated that $1,500.00 of the total $106,000.00 must be
used by the VSC to fund indigent burials, pursuant to R.C. Chapter 5901.
         {¶22} The veterans service commission’s request for mandamus further fails
because the VSC had a plain and adequate remedy in the course of law. The VSC
had a statutory right under 5901.11 to request a formal hearing before the Board to
discuss the VSC’s budget proposal. At no time did the VSC choose to exercise that
right.    The VSC, however, asserts that a hearing before the Board is wholly
inadequate as a remedy. The commission claims that holding a hearing to discuss
an issue, when “ample discussion had already occurred” on that issue, does not
afford the VSC a remedy that is complete, beneficial, and speedy, as the law
requires. State ex rel. Mace, 7th Dist. No. 09 MA 153, 2010-Ohio-611, at ¶3, citing
State ex rel. Smith v. Cuyahoga Cty. Court of Common Pleas, 106 Ohio St.3d 151,
2005-Ohio-4103, 832 N.E.2d 1206, at ¶19. We disagree.
         {¶23} An appeal, including an administrative appeal, is considered an
adequate remedy that precludes mandamus. State ex rel. Kronenberger-Fodor Co. v.
Parma (1973), 34 Ohio St.2d 222, 297 N.E.2d 525, syllabus. Thus, the failure to
pursue an adequate administrative remedy bars mandamus relief. State ex rel.
Buckley v. Indus. Comm., 100 Ohio St.3d 68, 2003-Ohio-5072, 796 N.E.2d 522, at
¶13, citing State ex rel. Reeves v. Indus. Comm. (1990), 53 Ohio St.3d 212, 213, 559
N.E.2d 1311. “[It is] the long settled rule of judicial administration that no one is
                                                                               -9-


entitled to judicial relief for a supposed or threatened injury until the prescribed
administrative remedy has been exhausted.” (Citation omitted.) Jones v. Chagrin
Falls (1997), 77 Ohio St.3d 456, 462, 674 N.E.2d 1388.
      {¶24} The exhaustion of administrative remedies doctrine is a well-
established principle of Ohio law.    The purpose of the doctrine is to “prevent[ ]
premature interference with agency processes, so that the agency may function
efficiently and so that it may have an opportunity to correct its own errors, as well as
to afford the parties and the courts the benefit of its experience and expertise, and to
compile a record which is adequate for judicial review.” Weinberger v. Salfi (1975),
422 U.S. 749, 765, 95 S.Ct. 2457. As the Lynch court instructed, “[s]hould the board
of county commissioners’ review uncover an unlawful budget request, the hearing
procedure prescribed by the statute offers the veterans service commission an
opportunity to seek reconsideration of the board’s determination, before resorting to a
lawsuit.” Lynch at 257, 680 N.E.2d 1222. In Lynch, the court issued the writ only
after the VSC had exhausted its remedies by participating in a budget hearing, and
then proceeding through the appellate process.
      {¶25} Here, it is undisputed that the VSC had an alternative remedy
prescribed by statute and failed to request a hearing. In its defense, the VSC seems
to contend that such a hearing would be redundant, as ongoing informal discussions
had not yielded a resolution.        However, as the foregoing precedent amply
demonstrates, if a statute provides an administrative remedy, the aggrieved party is
obligated to preserve its rights through the process outlined in the statute before
seeking recourse as extreme as mandamus.            Mandamus will not issue simply
because the VSC anticipates an adverse disposition.
      {¶26} In addition, contrary to the VSC’s position, the hearing would offer
complete, beneficial, and speedy relief. Such a remedy would provide a final, formal
decision on the matter, which would aid in compiling a record sufficient for judicial
review, should further action be necessary. While the presence of such a record
would have certainly been beneficial for instituting future claims, both parties could
                                                                              - 10 -


have additionally benefited from the opportunity to clarify clerical discrepancies that
seemed to persist throughout the negotiations. Further, R.C. 5901.11 provides that
the hearing be conducted in a timely fashion. The VSC had the ability to be heard
prior to the board’s adoption of any permanent appropriation measure.
      {¶27} For these reasons, the VSC cannot satisfy the third requisite for a writ
of mandamus.
      {¶28} Based on the pleadings and evidence before this court, we find that
Respondent is entitled to summary judgment. The writ of mandamus sought by
Relator is hereby denied.
      {¶29} Costs taxed against Relator. Final order. Clerk to serve notice as
provided by the Civil Rules.


Donofrio, J. concurs.
Vukovich, P.J. concurs.
Waite, J. concurs.
