[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Greene Cty. Bd. of Commrs. v. O’Diam, Slip Opinion No. 2019-Ohio-1676.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2019-OHIO-1676
  THE STATE EX REL. GREENE COUNTY BOARD OF COMMISSIONERS ET AL. v.
                                      O’DIAM, JUDGE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State ex rel. Greene Cty. Bd. of Commrs. v. O’Diam, Slip
                             Opinion No. 2019-Ohio-1676.]
Prohibition—Writ sought to prevent probate-court judge from enforcing orders
        concerning control of courtroom currently under the control of general
        division of common pleas court—Judge does not have inherent authority to
        issue order allowing him to take control of courthouse space that is already
        under the control of another judge—Writ granted with qualification.
     (No. 2018-0399—Submitted February 19, 2019—Decided May 7, 2019.)
                                      IN PROHIBITION.
                                 ____________________
        Per Curiam.
        {¶ 1} In this original action, relators, the Greene County Board of
Commissioners (“the board”) and Greene County, seek a writ prohibiting a
                             SUPREME COURT OF OHIO




common-pleas-court judge from enforcing his orders concerning the control of
Courtroom 3 in the Greene County Courthouse. Courtroom 3 is currently under the
control of the General Division of the Greene County Court of Common Pleas. But
Judge Thomas O’Diam of the probate division of the Greene County Court of
Common Pleas has ordered the board to designate the room as the probate
division’s courtroom and to provide the probate division exclusive use of the room
three days a week. In a related case currently pending before us, case No. 2018-
0447, Judge O’Diam seeks a writ of mandamus to enforce his orders.
       {¶ 2} Judge O’Diam has filed a motion to dismiss this case. Also, the Ohio
Association of Probate Judges has filed a motion for leave to file an amicus curiae
memorandum in support of Judge O’Diam’s motion to dismiss, and the two judges
of the general division of the Greene County Court of Common Pleas have filed a
motion to intervene as relators.
                                   BACKGROUND
       {¶ 3} Judge O’Diam engaged in a year-long effort to persuade the board and
the general-division judges that the probate division needs a full-sized courtroom
dedicated to its proceedings. That effort was not successful, and on March 5, 2018,
Judge O’Diam issued an order setting forth the following mandates:


               1. The Greene County Board of Commissioners shall
       immediately, by appropriate resolution, designate Courtroom 3 as
       the permanent Probate Court courtroom on the terms described on
       Exhibit A attached to this Judgment Entry and Order [the principal
       term being exclusive probate-court control three days a week],
       without any modification, conditions or stipulations of any kind.
               2. The Greene County Board of Commissioners shall pass
       the resolution making this designation in full compliance with this




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                                January Term, 2019




       Judgment Entry and Order at the Board’s next regularly scheduled
       meeting on March 8, 2018.
               3. The Greene County Board of Commissioners shall further
       pay directly from the County’s General Fund pursuant to statute, or
       reimburse this Court for, its reasonable and necessary legal fees and
       expenses arising out of, occasioned by, or directly or indirectly
       relating to this Judgment Entry and Order, and any subsequent
       mandamus action or similar proceeding this Court may institute
       against the Board because of the Board’s failure or refusal to comply
       with this Judgment Entry and Order.


       {¶ 4} In response, on March 6, 2018, the general-division judges entered an
order that expressed their intent “to maintain sole and exclusive management of the
lower area of the Greene County Courthouse [which is where Courtroom 3 is
located] for use by the General Division and benefit of other agencies.”
       {¶ 5} The board met on March 8 and considered the two conflicting orders.
After an executive session, they passed Resolution No. 18-3-8-26, which directed
the county administrator to construct office space and a courtroom for the probate
division, paid for from the county’s general fund, in the lower level of the Juvenile
Justice Center building.
       {¶ 6} On March 13, 2018, Judge O’Diam issued an order declaring the
board’s March 8 resolution void, ordering that the resolution be rescinded, and
enjoining the board from taking any action in furtherance of it.
       {¶ 7} The board and the county then filed the instant action, seeking a writ
of prohibition preventing Judge O’Diam from enforcing his March 5 and 13 orders
and prohibiting him from issuing further orders in the matter. As mentioned
previously herein, Judge O’Diam has filed a motion to dismiss.




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                                     ANALYSIS
          The motion for leave to file an amicus curiae memorandum
        {¶ 8} The Ohio Association of Probate Judges seeks leave to file an amicus
curiae memorandum in support of Judge O’Diam’s motion to dismiss and has filed
a proposed memorandum. Although S.Ct.Prac.R. 16.06 authorizes the filing of
amicus briefs without leave of court, that authorization does not extend to
“memoranda before an alternative writ is granted.” State ex rel. Duke Energy Ohio,
Inc. v. Hamilton Cty. Court of Common Pleas, 126 Ohio St.3d 41, 2010-Ohio-2450,
930 N.E.2d 299, ¶ 11. Thus, it was proper for the probate-judges’ association to
seek leave. The motion is unopposed, and we hereby grant it.
                              The motion to intervene
        {¶ 9} The general-division judges filed a motion to intervene as relators in
this case, along with a proposed complaint. Judge O’Diam filed a memorandum
opposing intervention, asserting that the general-division judges’ motion was
untimely and that the board adequately represents the interest of the general-
division judges as relators in this prohibition case.
        {¶ 10} Civ.R. 24(A)(2) provides that upon “timely application,” anyone
shall be permitted to intervene in a cause of action, “when the applicant claims an
interest relating to the property or transaction that is the subject of the action and
the applicant is so situated that the disposition of the action may as a practical matter
impair or impede the applicant’s ability to protect that interest, unless the
applicant’s interest is adequately represented by existing parties.” And Civ.R.
24(B)(2) allows a court to permit an applicant’s intervention based on a showing
that the applicant’s claim or defense has a question of law or fact in common with
the “main action.” In exercising its discretion, the court “shall consider whether
the intervention will unduly delay or prejudice the adjudication of the rights of the
original parties.”




                                           4
                                January Term, 2019




       {¶ 11} Although the general-division judges incontestably possess an
interest in preventing the enforcement of Judge O’Diam’s orders, and although
obtaining a writ of prohibition would help them retain control of Courtroom 3,
Judge O’Diam’s mandamus case (Supreme Court case No. 2018-0447, in which the
general-division judges also seek to intervene) provides the opportunity for them to
assert both jurisdictional and substantive defenses against the enforcement of Judge
O’Diam’s orders. Moreover, for purposes of asserting that Judge O’Diam lacked
jurisdiction to issue his orders, relators adequately represent the general-division
judges’ interest.
       {¶ 12} The complaint and exhibits show that the board, whose resolution
directs the renovation of space for the probate division in the Juvenile Justice Center
building, has taken the same position as the general-division judges and is seeking
to keep Judge O’Diam from enforcing his orders. Thus, relators seek the same
ultimate goal as the general-division judges. See Clarke v. Warren Cty. Commrs.,
12th Dist. Warren No. CA2000-01-009, 2000 WL 1336684 (Sept. 18, 2000), *3,
quoting Nationwide Mut. Ins. Co. v. Clow, 1st Dist. Hamilton No. C-910511, 1992
Ohio App. LEXIS 4957 (Sept. 30, 1992), *6 (“ ‘Where the party seeking to
intervene has the same ultimate goal as a party already in the suit, courts have
applied a presumption of adequate representation, and to overcome that
presumption, applicants ordinarily must demonstrate adversity of interest, collusion
or nonfeasance’ ”).
       {¶ 13} Additionally, in this case, it is the board, not the general division,
that could be held in contempt of Judge O’Diam’s order, and the board has both the
full incentive and no less capability to advance the strictly legal arguments in
support of prohibition. Because relators adequately represent the interest of the
general-division judges, we deny intervention of right under Civ.R. 24(A).
       {¶ 14} We exercise our discretion to also deny permissive intervention
under Civ.R. 24(B). The issues in Judge O’Diam’s motion to dismiss the complaint




                                          5
                             SUPREME COURT OF OHIO




have been fully briefed, and granting intervention at this juncture would impose
further delay because Judge O’Diam would need to be given the opportunity to
respond to the intervenors’ complaint. We hold that granting intervention under
these circumstances would unduly delay our adjudication of this matter.
                              The motion to dismiss
       {¶ 15} Judge O’Diam has moved to dismiss the complaint for a writ of
prohibition. “Dismissal of the prohibition complaint for failure to state a claim
upon which relief can be granted is appropriate if, after presuming the truth of all
factual allegations of the complaint and making all reasonable inferences in [the
relator’s] favor, it appears beyond doubt that he can prove no set of facts entitling
him to the requested extraordinary writ of prohibition.” State ex rel. Hemsley v.
Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d 1014, ¶ 8.
       {¶ 16} To demonstrate entitlement to a writ of prohibition, relators must
show (1) that Judge O’Diam has exercised judicial power, (2) that his exercise of
judicial power is unauthorized by law, and (3) that denying the writ would result in
injury for which no other adequate remedy exists in the ordinary course of law. See
State ex rel. Richland Cty. Children Servs. v. Richland Cty. Court of Common
Pleas, 152 Ohio St.3d 421, 2017-Ohio-9160, 97 N.E.3d 429, ¶ 8. Because the first
element is undisputedly met, we turn to the question whether Judge O’Diam’s
exercise of judicial power was unauthorized by law.
       {¶ 17} Judge O’Diam relies on case law establishing that “[c]ommon pleas
courts and their divisions possess inherent authority to order funding that is
reasonable and necessary to the court’s administration of its business.” State ex rel.
Wilke v. Hamilton Cty. Bd. of Commrs., 90 Ohio St.3d 55, 60, 734 N.E.2d 811
(2000). In evaluating appropriations made by boards of county commissioners in
those cases, the court focused on “the separation of powers among the various
branches of government.” State ex rel. Johnston v. Taulbee, 66 Ohio St.2d 417,
420, 423 N.E.2d 80 (1981).




                                          6
                                       January Term, 2019




           {¶ 18} Judge O’Diam is correct that our case law holds that courts may issue
orders to secure both adequate funding and adequate facilities in the courthouse.
We have held that a court’s “funding orders are presumed reasonable and [a board
of county commissioners] bears the burden to rebut the presumption” when a court
seeks a writ of mandamus to enforce such orders. Wilke at 60, 65. Similarly, we
have held that a court has inherent judicial power to take control of space in a
courthouse by judicial order when the space is reasonably necessary for the court’s
operation. See State ex rel. Bittikofer v. Babst, 97 Ohio St. 64, 119 N.E. 136 (1917);
Zangerle v. Cuyahoga Cty. Court of Common Pleas, 141 Ohio St. 70, 46 N.E.2d
865 (1943); State ex rel. Finley v. Pfeiffer, 163 Ohio St. 149, 126 N.E.2d 57 (1955).
           {¶ 19} The complaint contends that Judge O’Diam lacked jurisdiction to
issue orders requiring the board to designate Courtroom 3 as the probate-division’s
courtroom. But contrary to the overall theory of the complaint, courts do possess
inherent powers related to funding and courtroom space. Moreover, those inherent
powers are enjoyed by all constitutionally recognized courts, including the probate
courts. In Finley, we specifically held that “the Probate Court is a court of general
jurisdiction” for purposes of exercising inherent judicial authority. Id. at 153. And
although the provisions of the Ohio Constitution related to the judicial system have
been amended since Finley was decided, those changes do not affect our rationale
in Finley.        It remains true that the probate division is “established by the
Constitution”1 and that, like any other court, it “has full authority and power to deal
with all the subjects entrusted to it.” Finley at 153. All such courts possess similar
inherent powers related to funding and courtroom space.
           {¶ 20} That said, and as the motion to dismiss acknowledges, “the dispute
over Courtroom 3 presents for the first time competing demands of two courts.”
We therefore turn to relators’ assertion that the case law regarding the power of a


1
    See Ohio Constitution, Article IV, Section 4(C).




                                                   7
                             SUPREME COURT OF OHIO




judge to take control of space in a courthouse is inapposite in this case because
Judge O’Diam “is not seeking to take Courtroom 3 from another officer of the
County” but rather “from the General Division of the Common Pleas Court.” As
relators point out, “the General Division’s need to exercise its judicial functions is
not inferior, or secondary, to the Probate Court’s similar need” and unlike the
circumstances presented in the case law, the board in this case is being ordered by
one judge to “disregard a simultaneous order by [other judges].”
       {¶ 21} Relators are correct that the case law on this issue involves judicial
orders taking control of courthouse space occupied by administrative offices, not
by other courts. Bittikofer, 97 Ohio St. 64, 119 N.E. 136 (court order ousts the
county school superintendent); Zangerle, 141 Ohio St. 70, 46 N.E.2d 865 (court
order ousts the county auditor); Finley, 163 Ohio St. 149, 126 N.E.2d 57 (court
order ousts the county recorder). Each case involves the exercise of power by a
court over space within a courthouse, and in each case, we endorsed the exercise of
judicial power on the grounds that the executive branch may not usurp judicial
authority in determining the use of courthouse space. See Bittikofer at 66 (because
the “judicial power is a separate and independent department of the government,”
a courthouse “naturally and necessarily comes within the control of that
department; otherwise a conflict of authority might seriously impede the
administration of justice”); Zangerle at paragraphs one, two, and three of the
syllabus (because the “purpose of a courthouse * * * is to furnish the rooms and
facilities essential for the proper and efficient performance of the functions of the
court” and because a court “possess[es] all powers necessary to secure and
safeguard the * * * exercise of [its] judicial functions and cannot be * * * impeded
therein by other branches of the government,” the court “may exercise control over
the courthouse”); Finley at 154-155 (acknowledging a court’s inherent power to
acquire facilities for its operation but limiting the power to “the acquisition of
necessary as distinguished from desirable quarters and space”).




                                          8
                               January Term, 2019




       {¶ 22} By contrast, the relators in this case are not relying on the board’s
executive authority but on the order of the general-division judges. That fact
distinguishes this case from prior inherent-power cases, inasmuch as Judge O’Diam
cannot claim authority that supersedes that of the court’s general division—any
more than the general-division judges can issue orders that supersede Judge
O’Diam’s authority as probate judge.
       {¶ 23} In reaching this conclusion, we recognize that in Finley we
hypothesized a conflict that involved the space demands of two different courts.
Moreover, we used that hypothetical to develop the doctrine of the case: the
inherent power of a court to take control of courthouse space is confined to “the
acquisition of the space and facilities essential for its proper and efficient
operation,” as opposed to the acquisition of merely “desirable quarters and space.”
(Emphasis added.)     Finley at 155-156.     From this reasoning, Judge O’Diam
concludes that Finley makes clear that “the proper path” for resolving the present
dispute is a mandamus action in which the court can review the conflicting court
orders and determine which court has a greater need for the space it claims.
       {¶ 24} We disagree with Judge O’Diam’s conclusion. The conflict of court
orders was merely hypothetical in Finley; the actual holding of the case applied the
standard of reasonable necessity to a court order that claimed space from the county
recorder. Although we imagined conflicting court orders in Finley, we did not
specify as part of the hypothetical the situation that we confront here: one of the
two courts currently possesses and controls the courthouse space at issue.
       {¶ 25} We hold that a judge does not have inherent authority—and thereby
lacks jurisdiction—to issue an order allowing him to take control of courthouse
space when the space is already under the control of another court, or a different
division of the common-pleas court. It follows that Judge O’Diam was without
power to issue the March 5 and March 13, 2018 orders insofar as they require the




                                         9
                              SUPREME COURT OF OHIO




board to designate Courtroom 3 as the probate-division’s courtroom. We therefore
deny the motion to dismiss.
                         Merits of the prohibition action
       {¶ 26} Under S.Ct.Prac.R. 12.04(C), we now proceed to determine the
merits of the case. Two undisputed facts—the general division’s current control of
Courtroom 3 and the existence of conflicting court orders—establish that as a
matter of law, Judge O’Diam acted beyond his authority in issuing his orders
requiring the board to designate Courtroom 3 as the probate-division’s courtroom.
Judge O’Diam’s lack of jurisdiction is patent and unambiguous. And “[i]n cases
of a patent and unambiguous lack of jurisdiction, the requirement of a lack of an
adequate remedy of law need not be proven because the availability of alternate
remedies like appeal would be immaterial.” State ex rel. State v. Lewis, 99 Ohio
St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195, ¶ 18. For this reason, relators are
entitled to a writ prohibiting the enforcement of Judge O’Diam’s orders requiring
designation of Courtroom 3 as the probate division’s courtroom.
       {¶ 27} But Judge O’Diam’s orders not only attempt to take control of
Courtroom 3, they also mandate payment of the legal fees and expenses connected
with defending and enforcing his orders. Relators do not specifically contend that
the judge lacked jurisdiction to make this demand. And the case law treats such an
order as a funding order that is presumptively valid. See Wilke, 90 Ohio St.3d at
65, 734 N.E.2d 811 (“A judge has the inherent authority to order a legislative body
to provide funding necessary for the efficient administration of the court, including
funding private counsel to represent the court”).       Of course, funding orders
regarding appointed counsel for county officials need to be evaluated in conjunction
with the statutes relating to the role of the county prosecuting attorney and the
appointment of outside counsel. See, e.g., State ex rel. Gains v. Maloney, 102 Ohio
St.3d 254, 2004-Ohio-2658, 809 N.E.2d 24; State ex rel. Hillyer v. Tuscarawas Cty.
Bd. of Commrs., 70 Ohio St.3d 94, 637 N.E.2d 311 (1994).




                                         10
                                 January Term, 2019




          {¶ 28} Because Judge O’Diam’s jurisdiction to order payment of legal fees
and expenses has not been specifically contested in this case and because the
appointment of the judge’s counsel is a subject of dispute in his mandamus case
(Supreme Court case No. 2018-0447), we exempt from the writ of prohibition the
portion of Judge O’Diam’s orders requiring the board to pay his fees and expenses
relating to enforcement of the orders. We will consider the validity of Judge
O’Diam’s demand for payment of his private counsel and other litigation expenses
when we consider the mandamus case.
                                  CONCLUSION
          {¶ 29} For the foregoing reasons, we grant the motion for leave to file an
amicus memorandum, deny the general-division judges’ motion to intervene, and
deny Judge O’Diam’s motion to dismiss.          We also grant a peremptory writ
prohibiting Judge O’Diam from enforcing his orders entered on March 5 and March
13, 2018, in the Greene County Common Pleas Court, Probate Division, case No.
11587 MISC, captioned “In the Matter of the Designation of Courtroom 3 for Use
by Greene County Common Pleas Court, Probate Division,” and additionally
prohibiting Judge O’Diam from entering additional orders relating to the dispute
over the control of Courtroom 3. But we grant the writ of prohibition with the
qualification that its issuance is without prejudice to Judge O’Diam’s claim that he
is entitled to have the county pay his attorney fees and litigation expenses related
to defending and attempting to enforce his orders. That issue will be addressed in
the mandamus case that is pending before this court in case No. 2018-0447.
                                                             Judgment accordingly.
          O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and STEWART, JJ.,
concur.
          KENNEDY and DONNELLY, JJ., concur in part and dissent in part and would
grant an alternative writ.
                                 ________________




                                          11
                           SUPREME COURT OF OHIO




       Surdyk, Dowd & Turner Co., L.P.A., and Dawn M. Frick, for relators.
       Porter, Wright, Morris & Arthur, L.L.P., Kathleen M. Trafford, and
Caroline Gentry, for respondent.
       John D. Smith Co., L.P.A., John D. Smith, and Andrew P. Meier, for
proposed intervenors, Judge Michael A. Buckwalter and Judge Stephen A.
Wolaver.
       Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube, for
amicus curiae, Ohio Association of Probate Judges.
                              _________________




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