[Cite as State ex rel. Dreamer v. Mason, 129 Ohio St.3d 94, 2011-Ohio-2318.]




               THE STATE EX REL. DREAMER, ET AL., APPELLEES, v.
                     MASON, PROS. ATTY., ET AL., APPELLANTS.
 [Cite as State ex rel. Dreamer v. Mason, 129 Ohio St.3d 94, 2011-Ohio-2318.]
R.C. 309.09 and 305.14 — Elections board employees charged with committing
        election-law violations during a recount — Employees did not satisfy their
        burden to show that county prosecuting attorney and county board of
        commissioners had a duty to apply to the court of common pleas for
        appointment of counsel to represent them — Elections board employees
        are not “county officers” for purposes of R.C. 309.09 and 305.14.
     (No. 2010-1551 — Submitted March 1, 2011 — Decided May 19, 2011.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 93949,
                       189 Ohio App.3d 420, 2010-Ohio-4110.
                                 __________________
        LANZINGER, J.
        {¶ 1} This is an appeal from a judgment granting a writ of mandamus.
We reverse the judgment of the court of appeals and deny the writ because
appellees, employees of the Cuyahoga County Board of Elections (“the elections
board”), have not satisfied their burden to show that appellants, Cuyahoga County
Prosecuting Attorney William D. Mason (“the prosecutor”) and the Cuyahoga
County Board of Commissioners (“the commissioners”), had a clear legal duty
under R.C. 309.09 and 305.14 to jointly apply to the court of common pleas for
the retroactive appointment of counsel and reimbursement of legal-defense fees of
appellees.
                                  I. Case Background
        {¶ 2} The criminal prosecution of appellees in this case arose from
conduct that allegedly occurred during the election recount of the November 2004
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presidential election. Appellee Jacqueline Maiden was the coordinator for the
elections board and appellees Kathleen Dreamer and Rosie Grier were,
respectively, the manager and assistant manager of the elections board’s ballot
department during the November 2004 election and the recount. Maiden was in
charge of preparing the election board’s staff for the recount, and Dreamer and
Grier were involved in organizing and conducting the recount.
       {¶ 3} On December 22, 2004, the elections board met and certified the
recount results. During that meeting, information was disclosed that suggested
that personnel might not have conducted the recount in accordance with Ohio law.
The elections board did not initiate an investigation into whether its employees
had violated Ohio law in conducting the recount and did not refer the matter to the
prosecutor. Upon the January 3, 2005 request of the Green and Libertarian
Parties, however, the prosecutor referred the investigation and criminal
prosecution of possible election-law violations to a special prosecutor, Erie
County Prosecuting Attorney Kevin Baxter. In the spring of 2005, the special
prosecutor interviewed elections-board members and staff.        The prosecutor’s
office advised the elections board that neither its members nor its staff would be
provided legal counsel before or during the interviews.
       {¶ 4} In August 2005, several members and employees of the elections
board received grand-jury subpoenas. The elections board requested that the
prosecutor provide counsel to board members, officers, and employees who had
received subpoenas. The prosecutor’s office informed the board that it would not
advise or provide counsel to any of the subpoenaed persons. An August 17, 2005
request from the director of the elections board to the prosecutor requesting that
“special counsel, at the Board’s choosing, be granted to provide necessary legal
assistance, at the very least, to explain to those subpoenaed the grand jury
process” went unfulfilled.




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       {¶ 5} In August 2005, the grand jury indicted Dreamer and Grier on
charges of election-law violations concerning the recount. In February 2006, the
grand jury indicted Maiden on the same charges. Following the indictments, the
elections board released a public statement defending its employees.
       {¶ 6} In April 2006, the private attorneys who had been hired by
Dreamer and Maiden requested that the elections board, pursuant to R.C.
305.14(A), ask the prosecutor’s office and the commissioners to petition the court
of common pleas to authorize the commissioners to retain them at county expense
as counsel for Dreamer and Maiden in the pending criminal cases. Dreamer’s
attorney also appeared at two executive sessions of the elections board, where he
repeated his request.
       {¶ 7} During both executive sessions, the elections board agreed that it
would pay the legal fees and expenses of Dreamer, Maiden, and Grier in all
matters related to their criminal cases if they were not convicted of criminal
conduct. An assistant county prosecuting attorney was present at one of the
executive sessions and was aware of the appellees’ attorneys’ and the elections
board’s requests for the appointment of independent counsel for the indicted
employees. According to the elections board’s then deputy director, the assistant
prosecuting attorney informed the board members during an executive session
that the county would pay appellees’ legal fees if they were found not guilty.
       {¶ 8} The elections board requested that the prosecutor apply for the
appointment of independent counsel to represent Dreamer, Maiden, and Grier in
their criminal cases, but he refused. The elections board also requested that the
commissioners act unilaterally to apply to the common pleas court for the
appointment of independent counsel for the employees, but the prosecutor, on
behalf of the commissioners, rejected the request.




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       {¶ 9} In January 2007, Dreamer, Maiden, and Grier were tried by a jury
on the charges. Grier was found not guilty on all charges. The charges against
Dreamer and Maiden were eventually dismissed.
       {¶ 10} Nearly a year later, on September 18, 2009, appellees, Dreamer,
Maiden, and Grier, filed a complaint in the Court of Appeals for Cuyahoga
County for a writ of mandamus to compel the prosecutor and commissioners “to
make application to the Cuyahoga County Court of Common Pleas for retroactive
appointment of independent counsel” and to order the commissioners to pay for
their “legal expenses incurred by defending themselves against criminal charges
related to the performance of their official duties for the Cuyahoga County Board
of Elections during the 2004 election and recount.” Appellants filed a motion for
summary judgment, and appellees filed a brief in opposition.
       {¶ 11} In September 2010, a divided panel of the court of appeals denied
appellants’ motion for summary judgment and granted the writ of mandamus to
compel the prosecutor and the commissioners to “make an application to the court
of common pleas pursuant to R.C. 305.14(A).” The court further held: “The
court of common pleas, upon finding that [appellees] acted in good faith and a
well-intended manner in performing their official job duties, may authorize
retroactive appointment of counsel and reimbursement of legal expenses in an
amount fixed by the commissioners.” 189 Ohio App.3d 420, 2010-Ohio-4110,
938 N.E.2d 1078, ¶ 52.
       {¶ 12} This cause is now before the court upon the prosecutor and
commissioners’ appeal as of right.
                               II. Legal Analysis
                                 A. Mandamus
       {¶ 13} To be entitled to the writ, appellees must establish a clear legal
right to an application for the retroactive appointment of counsel and
reimbursement of their attorney fees and other legal expenses at county expense,




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as well as a corresponding clear legal duty of the prosecutor and commissioners to
apply to the court of common pleas for this relief, and the lack of an adequate
remedy in the ordinary course of law. See State ex rel. Carnail v. McCormick,
126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, ¶ 7. Appellees claim
entitlement to the requested extraordinary relief based solely on R.C. 309.09 and
305.14. They have not claimed estoppel.
                   B. The statutes: R.C. 309.09(A) and 305.14
       {¶ 14} R.C. 309.09(A) sets forth the general rule that “[t]he prosecuting
attorney shall be the legal adviser of the board of county commissioners, board of
elections, and all other county officers and boards” and that “[t]he prosecuting
attorney shall prosecute and defend all suits and actions which any such officer or
board directs or to which it is a party, and no county officer may employ any other
counsel or attorney at the expense of the county, except as provided in section
305.14 of the Revised Code.” (Emphasis added.) See also State ex rel. Sartini v.
Yost, 96 Ohio St.3d 37, 2002-Ohio-3317, 770 N.E.2d 584, ¶ 26; State ex rel.
O’Connor v. Davis (2000), 139 Ohio App.3d 701, 706, 745 N.E.2d 494 (under
R.C. 309.09(A), the prosecuting attorney “has the statutory responsibility and
authority to advise, prosecute, and defend county officers and boards as
specified”).
       {¶ 15} R.C. 305.14 confers jurisdiction on courts of common pleas to
authorize a board of county commissioners to employ special counsel upon joint
application of the prosecuting attorney and the board of county commissioners:
       {¶ 16} “The court of common pleas, upon the application of the
prosecuting attorney and the board of county commissioners, may authorize the
board to employ legal counsel to assist the prosecuting attorney, the board, or any
other county officer in any matter of public business coming before such board or
officer, and in the prosecution or defense of any action or proceeding in which




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such board or officer is a party or has an interest, in its official capacity.” R.C.
305.14(A).
         {¶ 17} The board of county commissioners fixes the compensation of all
persons appointed or employed pursuant to R.C. 305.14, and that compensation,
along with reasonable expenses, is paid from the county treasury upon allowance
by the board. R.C. 305.17.
         {¶ 18} Thus, it is true that an application by both the prosecuting attorney
and the board of county commissioners is required for the court of common pleas
to authorize the appointment of counsel other than the prosecuting attorney to
represent a county officer.           R.C. 305.14(A).1         But appellees have failed to
establish their clear legal right to relief in this case because they are not “county
officers” for purposes of R.C. 309.09 and 305.14.2
         {¶ 19} Appellees are employees of the elections board who were required
to defend themselves against criminal allegations that they had violated election


1. We have set forth one exception to this requirement. See State ex rel. Hamilton Cty. Bd. of
Commrs. v. Hamilton Cty. Court of Common Pleas, 126 Ohio St.3d 111, 2010-Ohio-2467, 931
N.E.2d 98, ¶ 28. (“[N]otwithstanding the express language of R.C. 305.14(A), the common pleas
court may act to appoint counsel other than the prosecuting attorney to represent the board of
county commissioners if the prosecuting attorney has a conflict of interest even in the absence of
the joint application specified in R.C. 305.14(A) when the prosecutor refuses to join in the
application. See, e.g., State ex rel. Corrigan v. Seminatore (1981), 66 Ohio St.2d 459, 20 O.O.3d
388, 423 N.E.2d 105, paragraph one of the syllabus (‘Application by both the prosecuting attorney
and the board of county commissioners is a prerequisite to authorization by a court of common
pleas pursuant to R.C. 305.14 of appointment of other counsel to represent a county office, except
where the prosecuting attorney has a conflict of interest and refuses to make application’).”)
(Emphasis sic.)

2. We recognize that this issue is not raised by either party on appeal. Nevertheless, during the
earlier proceedings, the court of appeals ordered the parties to brief this issue. Furthermore, “our
plenary authority in extraordinary actions permits us to consider the instant appeal as if it had been
originally filed in this court.” State ex rel. Minor v. Eschen (1995), 74 Ohio St.3d 134, 138, 656
N.E.2d 940. The “court’s plenary authority generally refers to our ability to address the merits of
a writ case without the necessity of a remand if the court of appeals erred in some regard.” State
ex rel. Natl. Elec. Contrs. Assn., Ohio Conf. v. Ohio Bur. of Emp. Servs. (2000), 88 Ohio St.3d
577, 579, 728 N.E.2d 395. We conclude that no remand is warranted here, and we choose to
invoke this court’s plenary authority to resolve the issue that was decided in the court of appeals in
this writ case.




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                               January Term, 2011




laws during an election recount. R.C. 309.09 and 305.14 specify duties of the
prosecutor with respect to “county officers.”      Because appellees based their
mandamus action in the court of appeals on statutory grounds only, the statutes
themselves answer whether the elections board employees have a right to an
application for independent counsel and payment of attorney fees and whether the
county prosecutor has a corresponding duty to file such an application in the
common pleas court.
       {¶ 20} Neither statute primarily relied upon discusses employees. R.C.
309.09(A) states that “[t]he prosecuting attorney shall be the legal adviser of the
board of county commissioners, board of elections, and all other county officers
and boards” and that “[t]he prosecuting attorney shall prosecute and defend all
suits and actions which any such officer or board directs or to which it is a party,
and no county officer may employ any other counsel or attorney at the expense of
the county, except as provided in section 305.14 of the Revised Code.”
(Emphases added.) R.C. 305.14(A) then grants discretion to the court of common
pleas. “The court of common pleas, upon the application of the prosecuting
attorney and the board of county commissioners, may authorize the board to
employ legal counsel to assist the prosecuting attorney, the board, or any other
county officer in any matter of public business coming before such board or
officer, and in the prosecution or defense of any action or proceeding in which
such board or officer is a party or has an interest, in its official capacity.”
(Emphases added.) Nothing in either statute addresses employees.
       {¶ 21} In its decision, the court of appeals erroneously found that “under
the plain language of R.C. 309.09(A) and 305.14(A), [appellees] should have
been considered county officers.” 189 Ohio App.3d 420, 2010-Ohio-4110, 938
N.E.2d 1078, at ¶ 15. But as the dissenting judge recognized, “[t]he authority of a
county board of elections and the performance of duties by its members are




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governed by applicable statutory requirements.” Id. at ¶ 59 (Gallagher, J.,
dissenting).
        {¶ 22} We have held, “Under the mandatory provisions of Section 2,
Article X and Section 1, Article XVII of the Constitution of Ohio, and the statutes
passed pursuant thereto, all matters pertaining to the conduct of elections are state
functions.” State ex rel. Columbus Blank Book Mfg. Co. v. Ayres (1943), 142
Ohio St. 216, 27 O.O. 176, 51 N.E.2d 636, paragraph one of the syllabus.
        {¶ 23} Furthermore, statutory authority over the boards of elections is
vested in the secretary of state. Among other duties, the secretary of state appoints
county election board members (R.C. 3501.05(A) and 3501.06), issues directives
and advisories to board members (R.C. 3501.05(B)), compels observance of
election laws (R.C. 3501.05(B) and (M)), and removes and replaces board
members if necessary (R.C. 3501.16). As we noted, “[m]embers of the boards of
elections act under the direct control of and are answerable only to the Secretary
of State in his capacity as the chief election officer of the state. They perform no
county functions and are not county officers.” Ayres at paragraph two of the
syllabus.
        {¶ 24} Although under R.C. 3501.01(U)(6), employees of the elections
board are “election officers,” R.C. 3501.14 specifically states that “[t]he director,
deputy director, and other employees of the board are not public officers * * *.”
(Emphases added.)
        {¶ 25} Consequently, this mandamus action must fail because appellees
have not satisfied their burden to show that employees who are performing their
official duties on behalf of the county elections board are “county officers.” Both
Ayres and R.C. 3501.14 negate any suggestion that an elections board employee
can be characterized as a county officer. The court of appeals thus also erred in
its resolution of this issue.




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       {¶ 26} As previously stated, we do not have the power to create the legal
duty enforceable through mandamus.          That is the distinct function of the
legislative branch of government.       State ex rel. Pipoly v. State Teachers
Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 18.
                                    C. Motions
       {¶ 27} We deny appellants’ motion for oral argument. Oral argument is
not mandatory in this appeal as of right. S.Ct.Prac.R. 9.1. The parties’ briefs are
sufficient to resolve the pertinent legal issues. See Rosen v. Celebrezze, 117 Ohio
St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 11. We also deny appellees’
motion to strike appellants’ reply brief and grant appellants’ motion to correct a
misstatement in that brief.
                                 III. Conclusion
       {¶ 28} Based on the foregoing, the court of appeals erred in granting the
writ of mandamus when appellees failed to establish their entitlement to the
requested extraordinary relief. Therefore, we reverse the judgment of the court of
appeals and deny the writ.
                                                                Judgment reversed
                                                                  and writ denied.
       O’CONNOR, C.J., and O’DONNELL, CUPP, and MCGEE BROWN, JJ., concur.
       PFEIFER and LUNDBERG STRATTON, JJ., dissent and would affirm the
judgment of the court of appeals.
                               __________________
       Synenberg & Associates, Roger M. Synenberg, and Dominic J. Coletta;
Rotatori Bender Co., L.P.A., Robert J. Rotatori, and Richard L. Stoper; and Argie,
D’Amico & Vitantonio and Dominic Vitantonio, for appellees.
       William D. Mason, Cuyahoga County Prosecuting Attorney, and David G.
Lambert and Charles E. Hannan, Assistant Prosecuting Attorneys, for appellants.
                              _____________________



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