IN THE SUPREME COURT OF OHIO

THE STATE OF OHIO, ex rel.THE LORAIN COUNTYCOMMISSIONERS,

Relators,

v.

THE COURT OF COMMON PLEASOF LORAIN COUNTY, OHIO, et al.,

Respondents.

CASE NO. 2014-1586

ORIGINAL ACTION IN PROHIBITION

RELATORS’ MERIT BRIEF

Robert E. Cahill (0072918)James L. McCrystal, Jr. (0017492)E. John Brzytwa (0013466)Brzytwa Quick & McCrystal LLC1660 West 2nd Street, Suite 900Cleveland, Ohio 44113-1411(216) 664-6900; (216) 664-6901 (Fax)CAHILL@BQMLAW.COM

MCCRYSTAL@BQMLAW.COM

BRZYTWA@BQMLAW.COM

Attorneys for Relators

Subodh Chandra (0069233)Donald Screen (0044070)Ashlie Case Sletvold (079477)Sandhya Gupta (0086052)1265 West Sixth St., Suite 400Cleveland, OH 44113-1326(216) 578-1700; (216) 678-1800 (Fax)Subodh.Chandra@ChandraLaw.comDonald.Screen@ ChandraLaw.comSandhya.Gupta@ ChandraLaw.com

Attorneys for Respondents

Supreme Court of Ohio Clerk of Court - Filed December 18, 2014 - Case No. 2014-1586

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Table of Contents

I. INTRODUCTION…………………………………………………………………...6

II. STATEMENT OF FACTS……………………………………………………..........6

III. LAW AND ARGUMENT…………………………………………………………...15

Proposition of Law……………………………………………………………..........15

A. Standard for Issuance of a Writ of Prohibition……………..………………..16

B. Respondents Have Repeatedly Exercised Unauthorized JudicialPower…………………………………………………………………….…..17

C. Respondents Have Exercised Judicial Power and Are About to ExerciseJudicial Power……………………………………………………………..…20

D. The August 27, 2014 and October 3, 2014 Orders and Any Attempt to EnforceThese Orders Are an Unauthorized Exercise of JudicialPower………...................................................................................................21

1. The August 27, 2014 and October 3, 2014 Orders Are an UnauthorizedExercise of Judicial Power Because No Case in Controversy Was Pendingand the Orders Do Not Arise from a RealControversy………………………………………………………………22

2. The August 27, 2014 and October 3, 2014 Orders Are an UnauthorizedExercise of Judicial Power Because They Usurp the Relators’ LegislativeFunction by Ordering the Legislative Branch to Fund the ExecutiveBranch Without Any Showing By the Sheriff that the Appropriation isReasonable or Necessary and that the Commissioners Acted Arbitrarily,Unreasonably, or Unconscionably …..…………………………..………23

3. If a Case in Controversy Was Pending and Evidence Had Been PresentedWhen the August 27, 2014 and October 3, 2014 Orders Were Issued, theEvidence Would Have Established that the Commissioners ActedReasonably and that the Sheriff’s 2014 Budge Has Sufficient Funds toProvide Increased Security at the Adult Probation Department andPresentence Investigation Unit…………………………………………..29

E. A Denial of Relators’ Sought After Writ of Prohibition Will Result in anInjury for Which No Other Adequate Remedy Exists in the Ordinary Courseof Law………………………….…………………………………………….31

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IV. CONCLUSION………………………………………………………………….………32

CERTIFICATE OF SERVICE…………………………………………………………..36

APPENDIX………………………………………………………………………………37

1. Appendix 1 – August 27, 2014 Order

2. Appendix 2 – October 3, 2014 Order

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Table of Authorities Cited

Cases

Central Motors Corporation v. City of Pepper Pike, 9 Ohio App.3d 18 457 N.E.2d 1178 (8th

Dist. 1983) ................................................................................................................................ 22

Davies v. Columbia Gas & Elec. Corp., 47 Ohio Law Abs. 225, 70 N.E.2d 655 (12th Dist. 1946)

.................................................................................................................................................. 22

Geauga County Board of County Commissioners v. Geauga County Sheriff, 11th Dist. Geauga

No. 2002-G-2484, 2003-Ohio-7201 ................................................................................... 23, 24

State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, ....... 34

State ex rel. Enyart v. O'Neill, 71 Ohio St.3d 655, 646 N.E.2d 1110 (1995) ............................... 16

State ex rel. Koren v. Grogan, 68 Ohio St.3d 590, 629 N.E.2d 446 (1994) ................................. 16

State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889

N.E.2d 500 ................................................................................................................................ 34

State ex rel. Trussell v. Board of County Commissioners of Meigs County, 155 Ohio App.3d 320,

2003-Ohio-6084, 800 N.E.2d 381, ..................................................................................... 24, 26

State ex rel. Veterans Svc. Ofc. of Pickaway Cty. v. Bd. of Cty. Cmmrs. of Pickaway Cty, 61 Ohio

St.3d 461, 575 N.E.2d 206 (1991) ............................................................................................ 26

Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 61 Ohio Op.2d 292 (1972) ......... 33, 34

Wilkins v. Wilkinson, 10th Dist. Franklin No. 01Ap-468, 2002-Ohio-523, 2002 Ohio App. Lexis

90 .............................................................................................................................................. 22

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Statutes

R.C. 307.01(A) ........................................................................................................................ 17, 24

R.C. Chapter 311 .................................................................................................................... 23, 24

R.C. 311.07 ................................................................................................................................... 24

R.C. 311.07(A) ........................................................................................................................ 24, 27

R.C. 325.17 ................................................................................................................................... 24

R.C. 341.01 ................................................................................................................................... 24

R.C. Chapter 5705 .................................................................................................................. 25, 26

R.C. 5705.01(C) ............................................................................................................................ 26

R.C. 5705.28(C)(1) ....................................................................................................................... 25

R.C. 5705.38(A) ............................................................................................................................ 26

R.C. 5705.38(C) ............................................................................................................................ 26

R.C. 5705.39 ................................................................................................................................. 26

Rules

Civ.R. 12(A)(2).............................................................................................................................. 20

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I. INTRODUCTION

This matter involves the issuance of unauthorized sua sponte orders, with no case in

controversy pending, which usurp Relators’ legislative funding authority and Relators’ discretion

to determine the amount of funds to appropriate to the Lorain County Sherriff. These orders

directing the Relators to fund the executive branch of government and any attempt to enforce the

same by the judicial branch of government not only usurps the legislative branch’s exclusive

power as the funding authority but also interferes with the independence and autonomy of the

legislative branch of the government.

The evidence before the Court and the law clearly establish Relators’ right to a Writ of

Prohibition and this Court should issue a permanent Writ of Prohibition forbidding Respondents

from exercising judicial power to enforce these orders.

II. STATEMENT OF FACTS

On Thursday, July 24, 2014, former Administrative Judge of the Court of Common Pleas

of Lorain County, James M. Burge, entered a Journal Entry that was journalized at 11:06 a.m.,

without any case in controversy pending before the Court, which ordered the Lorain County

Commissioners to provide “the Lorain County Adult Probation Department immediate and

complete access to the 2nd floor of the Old Courthouse” on or before noon of July 25, 2014. (¶2

of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit A, which

is a copy of the July 24, 2014 Order).1 Judge Burge’s July 24, 2014 Order gave the

Commissioners less than 25 hours to comply with the Order. (¶2 of the Affidavit of James R.

Cordes executed on December 8, 2014 and Cordes Exhibit A).

1 The Affidavit of James R. Cordes executed on December 8, 2014 was filed withRelators’ Presentation of Evidence.

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The Adult Probation Department did not wait until noon on July 25, 2014 to start

occupying the second floor of the Old Courthouse. (¶2-3 of the Affidavit of Karen Davis).2

While responding to a reported problem on the second floor of the Old Courthouse during the

afternoon of July 24, 2014, Lorain County’s Director of Facilities Karen Davis observed that the

Director of Adult Probation had moved furnishings and equipment into room 205 and that the

lock to that room had been changed. (¶2-3 of the Affidavit of Karen Davis).

On Friday, July 25, 2014, Lorain County Administrator James R. Cordes wrote a letter to

Judge Burge notifying him of the Commissioners’ intent to seek a Writ of Prohibition in the

Supreme Court of Ohio in response to the July 24, 2014 Order. (¶3 of the Affidavit of James R.

Cordes executed on December 8, 2014 and Cordes Exhibit B, which is a copy of Mr. Cordes’

July 25, 2014 letter to Judge Burge). Also on July 25, 2015, the Lorain County Commissioners,

through counsel, filed a Motion to Stay Enforcement of the July 24, 2014 Order with the Clerk of

Courts for Lorain County seeking a stay of enforcement of the order for fourteen days so that a

Writ of Prohibition could be filed in the Supreme Court of Ohio. (¶4 of the Affidavit of James R.

Cordes executed on December 8, 2014 and Cordes Exhibit C, which is a copy of the Lorain

County Commissioners’ Motion to Stay Enforcement of the July 24, 2014 Order).

The Adult Probation Department disregarded the Commissioners’ intention to seek a

Writ of Prohibition in the Supreme Court of Ohio and began moving onto the second floor of the

Old Courthouse. (¶4-6 of the Affidavit of Karen Davis). In the afternoon of July 25, 2013,

Director of Facilities Management Karen Davis received a work order request stating that

Young’s Locksmith would be at the Old Courthouse to change locks on the second floor of the

2 The Affidavit of Karen Davis was attached as Exhibit 2 to Relators’ Complaint for aWrit of Prohibition and as Exhibit 2 to the Amended Complaint attached to Relators’ Motion forLeave to File an Amended Complaint Instanter, which has not yet been ruled upon.

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Old Courthouse. (¶4 of the Affidavit of Karen Davis). When Director of Facilities Management

Karen Davis arrived on the second floor of the Old Courthouse on the afternoon of July 25,

2014, Young’s Locksmith had already changed the locks on eleven or twelve doors on the

second floor. (¶5 of the Affidavit of Karen Davis). While on the second floor of the Old

Courthouse on the afternoon of July 25, 2014, Director of Facilities Management Karen Davis

also observed that additional furnishings and equipment of the Adult Probation Department had

been moved into some of the rooms on the second floor of the Old Courthouse. (¶6 of the

Affidavit of Karen Davis).

On Monday, July 28, 2014, Judge Burge vacated the July 24, 2014 Order thereby

precluding the Commissioners an opportunity to challenge the order by seeking a Writ of

Prohibition in the Supreme Court of Ohio. (¶5 of the Affidavit of James R. Cordes executed on

December 8, 2014).

On July 31, 2014, Judge Burge sent a letter to Lorain County Sheriff Phil Stammitti

regarding a Physical Security Assessment the Court received for the Lorain County Adult

Probation Department and Presentence Investigation Unit. (¶6 of the Affidavit of James R.

Cordes executed on December 8, 2014 and Cordes Exhibit D, which is a copy of Judge Burge’s

July 31, 2014 letter). In this letter, Judge Burge instructed Sheriff Stammitti to provide a

uniformed deputy equipped with appropriate screening devices at the entrances to both Adult

Probation and Presentence Investigation by August 11, 2014. (¶6 of the Affidavit of James R.

Cordes executed on December 8, 2014 and Cordes Exhibit D). On August 7, 2014, Sheriff

Stammitti sent a letter to Judge Betleski, Chair of the Lorain County Court Security Committee,

concerning Judge Burge’s request to provide additional security for the Adult Probation

Department and Presentence Investigation Unit and requesting that a meeting of the Court

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Security Committee be convened. (¶7 of the Affidavit of James R. Cordes executed on

December 8, 2014 and Cordes Exhibit E, which is a copy of Sheriff Stammitti’s August 7, 2014

letter).

On August 13, 2014, counsel for the Commissioners sent a letter to Respondents’ counsel

concerning the July 24, 2014 Order, responding to issues previously raised by the Respondents’

counsel, requesting information concerning the studies the Respondents had performed on the

Old Courthouse, and proposing a process by which the parties could work together on a long

term location for the Adult Probation Department, including potentially mediating their

differences through the Ohio Supreme Court’s Government Conflict Resolution Services. (¶8 of

the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit F, which is

a copy of the Commissioners’ counsel’s letter dated August 13, 2014). Also on August 13, 2014,

Sheriff Stammitti sent a letter to the Commissioners concerning the annual projected costs of

placing deputies and screening equipment at the Adult Probation Department in the Old

Courthouse and at the Presentence Investigation Unit’s location in an amount of $396,356.09.

(¶9 of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit G,

which is a copy of Sheriff Stammitti’s August 13, 2014 letter). The Sheriff also proposed the

possibility of providing security at only the Old Courthouse at an annual cost of $198,178.05. (¶9

of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit G).

On August 15, 2014, counsel for the Commissioners sent another letter to Respondents’

counsel updating the Commissioners’ proposal made in the August 13, 2014 letter to address the

security cost estimates made by Sheriff Stammitti in his letter dated August 13, 2014. (¶10 of the

Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit H, which is a

copy of the Commissioners’ counsel’s letter dated August 15, 2014). Specifically, the

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Commissioners proposed that if the Judges agreed to move the Presentence Investigation Unit on

a temporary basis into the Old Courthouse, which houses Adult Probation, thereby combining

the two into one facility, the Commissioners believed they could provide the requested funding

for increased security at the Old Courthouse. (¶10 of the Affidavit of James R. Cordes executed

on December 8, 2014 and Cordes Exhibit H). The Commissioners proposed two locations in the

Old Courthouse for temporarily housing the Presentence Investigation Unit and requested that

the Judges choose their preferred temporary location. (¶10 of the Affidavit of James R. Cordes

executed on December 8, 2014 and Cordes Exhibit H). The Commissioners also revised their

proposal so that the process by which the parties would work together on a long term location for

the Adult Probation Department would also include the Presentence Investigation Unit. (¶10 of

the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit H).

On August 27, 2014, Judge Burge entered a Journal Entry, without a case in controversy

pending before the Court, which ordered the Commissioners to appropriate $124,953.20 to the

Sheriff by September 13, 2014 so that deputies and screening devices could be placed at both

facilities housing the Adult Probation Department and the Presentence Investigation Unit. (¶11

of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit I, which

is a copy of the August 27, 2014 Order with all the attachments thereto). Judge Burge’s August

27, 2014 Order was the first response the Commissioners received to their proposals to try to

work with the Judges on a long term location for the Adult Probation Department and the

Presentence Investigation Unit and to potentially mediate their differences through the Ohio

Supreme Court’s Government Conflict Resolution Services. (¶11 of the Affidavit of James R.

Cordes executed on December 8, 2014).

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The e-mail that is attached to Judge Burge’s August 27, 2014 Order as Exhibit C contains

the Sheriffs’ fiscal staffs’ calculations for the cost of providing increased security at the Adult

Probation Department and the Presentence Investigation Unit through the end of 2014, but on its

face, the e-mail was addressed to Court Administrator Tim Lubbe and none of the

Commissioners was copied on this communication. (¶12 of the Affidavit of James R. Cordes

executed on December 8, 2014 and Cordes Exhibit I).

Sheriff Stammitti never communicated to the Commissioners a request for funding

increased security for the Adult Probation Department and the Presentence Investigation Unit

through the end of 2014. (¶13 of the Affidavit of James R. Cordes executed on December 8,

2014). Sheriff Stammitti did not file suit against the Commissioners nor seek a writ of

mandamus against the Commissioners to order them to provide the funding that the

Commissioners have been ordered to appropriate by Judge Burge’s August 27, 2014 Order. (¶11

of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit I).

On September 12, 2014, Relators filed in this Court their original Complaint for a Writ of

Prohibition.

Around the end of September or the beginning of October, 2014, the Sheriff’s Office

began providing uniformed deputies equipped with screening devices at the entrances to both

Adult Probation and Presentence Investigation. (¶14 of the Affidavit of James R. Cordes

executed on December 8, 2014). The stationing of sheriff’s deputies and the installation of a

magnetometer at the entrances to both Adult Probation and Presentence Investigation was not

funded by either the Commissioners or the Sheriff. (¶3 and 7 of the Affidavit of Beth Cwalina).3

3 The Affidavit of Beth Cwalina was filed with Respondent Judge Mark Betleski’sNotice of Filing Evidence on December 9, 2014.

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The Lorain County Court of Common Pleas, as a temporary measure, agreed to fund these

security measures. (¶7 of the Affidavit of Beth Cwalina).

On October 3, 2014, three weeks after the Commissioners filed their original Complaint

for a Writ of Prohibition in this Court, Respondent, new Administrative Judge Mark A. Betleski,4

without any dispute pending before him, modified the August 27, 2014 Order as follows:

The Court’s funding Order of August 27, 2014, attached andincorporated herein, is modified as follows. The Lorain CountyCommissioners alternately may fulfill their obligations under thatOrder and the Order’s purpose by appropriating the required fundsof $124,953.20 for security to the Court of Common Pleas GeneralDivision. The foregoing sum must be appropriated by October 17,2014.

¶15 of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit J,

which is a copy of the October 3, 2014 Order with all the attachments thereto.

On or about October 9, 2014, the Commissioners received a request for appropriation

from the Adult Probation Department to appropriate $139,500 from the County Probation

Services Fund, including $130,000 for Professional Services. (¶16 of the Affidavit of James R.

Cordes executed on December 8, 2014 and Cordes Exhibit K, which is a copy of the Adult

Probation Department’s October 9, 2014 Appropriation Request). The Commissioners learned

that the $130,000, requested on or about October 9, 2014, for Professional Services was slated to

pay the Sheriff’s Office for the cost of providing uniformed deputies equipped with screening

devices at the entrances to both Adult Probation and Presentence Investigation. (¶17 of the

Affidavit of James R. Cordes executed on December 8, 2014). The $130,000 Adult Probation

4 Judge Betleski, the new Administrative Judge for the Lorain County Court of CommonPleas, was substituted as a party by stipulation of the parties filed on October 1, 2014 in place offormer Administrative Judge James M. Burge due to Judge Burge being disqualified from actingas a Judge due to the felony and misdemeanor indictments brought against him by the OhioAttorney General in the Lorain County Court of Common Pleas. See In re Disqualification ofBurge, 09/25/2014 Case Announcements, 2014-Ohio-4193.

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requested was a request for funds that were already in the Court of Common’s Pleas’ County

Probation Services Fund and/or funds that were previously budgeted for the Court of Common

Pleas. (¶18 of the Affidavit of James R. Cordes executed on December 8, 2014). This request

was not for new funds and was not a request for an appropriation from the County’s general

fund. (¶18 of the Affidavit of James R. Cordes executed on December 8, 2014). The

Commissioners were concerned that approving the $130,000 appropriation request could

potentially waive their claim set forth in the pending prohibition action and held Adult

Probation’s October 9, 2014 request neither approving nor denying it. (¶19 of the Affidavit of

James R. Cordes executed on December 8, 2014).

On October 17, 2014, the Commissioners moved to Amend their Complaint for a Writ of

Prohibition Instanter in order to encompass Judge Betleski’s October 3, 2014 Modified Order in

the pending action for prohibition. (¶20 of the Affidavit of James R. Cordes executed on

December 8, 2014).

On or about October 22, 2014, the Commissioners, via a resolution, approved Adult

Probation’s October 9, 2014 request for $139,500, including the $130,000 for Professional

Services, but the resolution included the following language “The Commissioners’ approval of

this request for appropriation in no way waives their claim set forth in the pending prohibition

action in the Supreme Court of Ohio nor limits in any way their ability to contest the Court of

Common Pleas ordering the Commissioners to pay for security at the Old Courthouse or PSI’s

location.” (¶21 of the Affidavit of James R. Cordes executed on December 8, 2014).

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It is the Sheriff’s statutory duty to provide security to the Lorain County Court of

Common Pleas and its various subdivisions. (¶2 of the Affidavit of Sheriff Phil R. Stammitti and

¶9 of the Affidavit of Judge Mark Betleski).5

Lorain County’s general fund budget for 2014 is approximately $55.6 million. (¶22 of the

Affidavit of James R. Cordes executed on December 8, 2014). The Sheriff’s 2014 annual budget

is $4,911,622 and these funds are provided from the County’s general fund. (¶23 of the Affidavit

of James R. Cordes executed on December 8, 2014). The Sheriffs’ jail fund is also provided in

part by appropriations from the County’s general fund. (¶24 of the Affidavit of James R. Cordes

executed on December 8, 2014). The portion of the County’s 2014 general fund that is budgeted

for the Sheriffs’ jail fund is $3,550,000. (¶25 of the Affidavit of James R. Cordes executed on

December 8, 2014). Combining the Sheriff’s 2014 annual budget and the portion of the Sheriff’s

2014 jail fund that is provided by the County’s general fund, the Sheriff’s office is budgeted to

receive $8,461,622 in 2014. (¶26 of the Affidavit of James R. Cordes executed on December 8,

2014). This sum compromises over 15% of the County’s general fund budget. (¶26 of the

Affidavit of James R. Cordes executed on December 8, 2014).

The Sheriff has sufficient funds in the Sheriff’s 2014 annual budget to pay for deputies

and screening devices at both the Adult Probation Department and the Presentence Investigation

Unit. (¶27 of the Affidavit of James R. Cordes executed on December 8, 2014). The Sheriff may

have to reduce some of the discretionary services that the Sheriff’s Office currently provides in

5 The Affidavit of Sheriff Phil R. Stammitti and the Affidavit of Judge Mark Betleskiwere filed with Respondent Judge Mark Betleski’s Notice of Filing Evidence on December 9,2014. The other affidavits filed by Respondents deal mostly with the allegedly poor condition ofthe Old Courthouse, which houses the Adult Probation Department. Aside from the lack ofrelevance of these assertions to this case, they are now moot because the Commissionersannounced after the evidence was filed in this matter that the Adult Probation Department andthe Presentence Investigation Unit are both being moved into a different location.

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order to pay for the increased security, but the Sheriff has the available funds to pay for the

increased security at both the Adult Probation Department and the Presentence Investigation

Unit. (¶27 of the Affidavit of James R. Cordes executed on December 8, 2014).

III. LAW AND ARGUMENT

Proposition of Law:

A Court of Common Pleas has no jurisdiction or legal authority to order a Board of

County Commissioners to provide funds to the County Sheriff or to order the

Commissioners to provide funds to the Court to pass through to the Sheriff without the

Sheriff first establishing in a case in controversy that (1) the request for funds is

reasonable and necessary and (2) the Board of County Commissioners has arbitrarily,

unreasonably, or unconscionably denied the request. Absent this showing by the Sheriff,

such an order by the judicial branch of government usurps the legislative branch’s

exclusive power as the funding authority and interferes with the independence and

autonomy of the legislative branch of the government.

Relators are entitled to the issuance of a permanent Writ of Prohibition forbidding

Respondents from exercising judicial power to enforce the August 27, 2014 Order and the

October 3, 2014 Order. The evidence before the Court and the law are clear that 1. Respondents

have repeatedly abused their judicial power by issuing multiple orders that were unauthorized by

law, 2. Respondents have exercised and are about to exercise judicial power, 3. the August 27,

2014 and October 3, 2014 Orders and any attempt to enforce the same are unauthorized by law

because (i) no case in controversy was pending and the orders do not arise from a real

controversy, (ii) the orders usurp the Commissioners’ funding authority and no evidence was

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presented by the Sheriff to establish that the requested funds were reasonable and necessary and

that the Commissioners acted arbitrarily, unreasonably, or unconscionably in denying the

request, and (iii) had a case in controversy been pending, the evidence that would have been

presented would have demonstrated that the Commissioners have acted reasonably and that the

Sheriff’s 2014 budget had sufficient funds to provide increased security at the Adult Probation

Department and the Presentence Investigation Unit, and 4. a denial of the Commissioners’

sought after Writ of Prohibition will result in an injury for which no other adequate remedy

exists in the ordinary course of law.

Relators address both the August 27, 2014 and the October 3, 2014 Orders herein because

the October 3, 2014 Order modifies the August 27, 2014 Order and the analysis concerning why

both orders are an unauthorized exercise of judicial power which cannot be enforced is the same.

The October 3, 2014 Order was issued three weeks after Relators filed this action. On October

17, 2014, Relators moved to file an Amended Complaint instanter to which an Amended

Complaint was attached so that this action would address both orders. Respondents did not

oppose the motion, but no ruling has yet been made.

A. Standard for Issuance of a Writ of Prohibition

For Relators to ultimately prevail in seeking a Writ of Prohibition, Relators must

establish that (1) that the court against whom the writ is sought is exercising or about to exercise

judicial power, (2) that the exercise of power is unauthorized by law, and (3) that denying the

writ will result in injury for which no other adequate remedy exists in the ordinary course of law.

State ex rel. Koren v. Grogan, 68 Ohio St.3d 590, 592, 629 N.E.2d 446, 448 (1994) and State ex

rel. Enyart v. O'Neill, 71 Ohio St.3d 655, 656, 646 N.E.2d 1110, 1112 (1995). The evidence

before the Court and the law establish the August 27, 2014 Order and the October 3, 2014 Order

17

modifying the August 27, 2014 Order and any attempt to enforce the same are an unauthorized

exercise of judicial power and that Relators have no adequate remedy in law if the sought after

Writ of Prohibition is denied.

B. Respondents Have Repeatedly Exercised Unauthorized Judicial Power

The evidence before the Court establishes that former Administrative Judge Burge and

new Administrative Judge Betleski have collectively engaged in a pattern of abuse of their

judicial power by issuing sua sponte orders unauthorized by law without any case in controversy

pending before them.

On July 24, 2014, Judge Burge gave Relators less than 25 hours to provide “the Lorain

County Adult Probation Department immediate and complete access to the 2nd floor of the Old

Courthouse.” (¶2 of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes

Exhibit A). This order was unauthorized because it usurped the Commissioners’ statutory duty

to determine the dimensions of county offices as set forth in R.C. 307.01(A).

Notwithstanding the unreasonably short time to comply with the July 24, 2014 Order, the

Adult Probation Department did not even wait 25 hours and resorted to self-help by changing

locks and moving furniture and equipment onto the second floor of the Old Courthouse on the

afternoon of July 24, 2014. (¶2-3 of the Affidavit of Karen Davis). After Judge Burge was

notified on Friday, July 25, 2014 of Relators’ intent to challenge the July 24, 2014 Order by

seeking a writ of prohibition in this Court via a letter from County Administrator James Cordes

and by the Commissioners’ motion to stay enforcement of the July 24, 2014 Order, the Adult

Probation Department changed eleven or twelve additional locks on the second floor of the Old

Courthouse and moved additional equipment and furniture onto the second floor on the afternoon

of July 25, 2014. (¶3-4 of the Affidavit of James R. Cordes executed on December 8, 2014 and

18

Cordes Exhibits B and C; ¶4-6 of the Affidavit of Karen Davis). Before Relators could seek a

writ of prohibition in this Court, Judge Burge rescinded the July 24, 2014 Order on Monday, July

28, 2014, thereby precluding the Commissioners an opportunity to challenge the order by

seeking a Writ of Prohibition in this Court. (¶5 of the Affidavit of James R. Cordes executed on

December 8, 2014).

On July 31, 2014, Judge Burge sent Lorain County Sheriff Phil Stammitti a letter

instructing him to provide uniformed deputies equipped with appropriate screening devices at the

entrances to both Adult Probation and Presentence Investigation by August 11, 2014. (¶6 of the

Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit D). In response

to this letter, Sherriff Stammitti ultimately sent a letter dated August 13, 2014 to Relators setting

forth the annual cost of placing deputies and screening equipment at both locations housing

Adult Probation and Presentence Investigation in the amount of $396,356.09 and the potential

for placing deputies and screening equipment at only the Old Courthouse at an annual cost of

$198,178.05. (¶9 of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes

Exhibit G). In response to the Sheriff’s letter, Relators, through counsel, sent a letter dated

August 15, 2014 to Respondents’ counsel proposing that if Respondents agreed to move

Presentence Investigation on a temporary basis into the Old Courthouse so that both Adult

Probation and Presentence Investigation were housed in the same location, Relators believed

they could provide the funding to the Sheriff to provide security at the Old Courthouse. (¶10 of

the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit H).

Relators gave Respondents a choice of two locations in the Old Courthouse in which to place

Presentence Investigation and proposed that the parties work together on a long term location for

both Adult Probation and Presentence Investigation. (¶10 of the Affidavit of James R. Cordes

19

executed on December 8, 2014 and Cordes Exhibit H).

Respondents’ first response to Relators’ offer to work with Respondents on combining

Adult Probation and Presentence Investigation into one location so that funding for security for

that one location could be provided to the Sheriff was Judge Burge’s August 27, 2014 sua sponte

Order, without any case in controversy pending before him, by which Relators were ordered to

appropriate $124,953.20 to the Sheriff by September 13, 2014. (¶11 of the Affidavit of James R.

Cordes executed on December 8, 2014 and Cordes Exhibit I). The Sheriff never communicated

to the Commissioners a request for funding increased security for the Adult Probation

Department and the Presentence Investigation Unit through the end of 2014. (¶13 of the

Affidavit of James R. Cordes executed on December 8, 2014). At the time the August 27, 2014

Order was entered or thereafter, the Sheriff had not filed suit against Relators nor sought a writ

of mandamus to order them to provide the funding which the Relators were ordered to

appropriate by Judge Burge’s August 27, 2014 Order. (¶11 of the Affidavit of James R. Cordes

executed on December 8, 2014 and Cordes Exhibit I).

On October 3, 2014, three weeks after Relators filed this action for a Writ of Prohibition

and sought the issuance of an alternative writ and after Respondents had filed a motion to

dismiss this action, new Administrative Judge Betleski issued another sua sponte Order, without

any case in controversy pending before the Court, modifying the August 27, 2014 Order. (¶15 of

the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit J). The

Modified Order states “The Lorain County Commissioners alternatively may fulfill their

obligations under [the August 27, 2014] Order and the Order’s purpose by appropriating the

required funds of $124,953.20 for security to the Court of Common Pleas General Division.”

(¶15 of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit J).

20

Two things were abundantly clear from the issuance of the Modified Order of October 3,

2014. First, the Modified Order was a tacit admission by Respondents that their arguments that

this case involves funding for the Court of Common Pleas are wanting and they inappropriately

attempted to set up the Court of Common Pleas as a straw man by which the ordered

appropriation could pass through the Court to the Sheriff. Second, Respondents’ abuse of

judicial power knows no bounds when Relators had sought the immediate issuance of an

Alternative Writ of Prohibition in this Court and Respondents’ continued issuance of sua sponte

orders, without any case in controversy pending before them, completely disregarded Relators’

right to seek an alternative writ and further showed a complete disdain for this Court’s power to

issue an alternative writ.

Finally, after this Court granted Relators an alternative writ on November 19, 2014,

Respondents failed to answer Relators’ Complaint as required by Civ.R. 12(A)(2).6

Respondents’ failure to answer Relators’ Complaint is a further example of their abuse of power

and their cavalier attitude that the rules do not apply to them.

C. Respondents Have Exercised Judicial Power and Are About to ExerciseJudicial Power

Judge Burge has exercised judicial power by entering the August 27, 2014 Order and

Judge Betleski has exercised judicial power by entering the October 3, 2014 Order. (¶11 and 15

of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibits I and J).

It is clear that, absent the issuance of an alternate writ by this Court, Judge Betleski was about to

exercise judicial power in enforcing the August 27, 2014 Order which mandated that the

Commissioners appropriate $124,953.20 to the Sheriff and/or the October 3, 2014 Order which

6 On December 8, 2014, Relators filed a motion for default judgment, which at the timeof filing this brief, had not yet been ruled upon.

21

alternatively ordered the Commissioners to pay the $124,953.20, which had been ordered to be

appropriated to the Sheriff, directly to the Lorain County Court of Common Pleas. (¶11 and 15

of the Affidavit of James R. Cordes executed on December 8, 2014 and Exhibits I and J).

Moreover, it appears that Respondents do not contest that they have exercised judicial

power and are about to exercise judicial power. In their motion to dismiss, Respondents did not

contest that Relators have established the first prong of Relators’ required showing in order to

obtain a writ of prohibition – that Respondents have exercised judicial power and are about to

exercise judicial power. Additionally, Relators have provided no evidence to the Court that

suggests that they have not have exercised judicial power or were not about to exercise judicial

power.

Given the evidence before the Court and the apparent lack of dispute on this element

among the parties, it is clear that Relators have established that Respondents have exercised

judicial power and are about to exercise judicial power.

D. The August 27, 2014 and October 3, 2014 Orders and Any Attempt toEnforce These Orders Are an Unauthorized Exercise of Judicial Power

Judge Burge’s Order of August 27, 2014 and Judge Betleski’s Order of October 3, 2014

and any effort to enforce the same constitute an exercise of judicial power that is unauthorized by

law because 1. there was no case in controversy pending before Judge Burge when he entered the

August 27, 2014 Order or Judge Betleski when he entered the October 3, 2014 Order, 2. the

August 27, 2014 and October 3, 2014 Orders usurp the Commissioners function as the funding

authority and no evidence exists to establish the Sheriff’s requested funding is reasonable and

necessary and that the Commissioners acted arbitrarily, unreasonably, or unconscionably, and 3.

assuming arguendo that a case in controversy had existed, the evidence that would have been

presented would have demonstrated that the Sheriff already had sufficient funds in his 2014

22

budget to provide security at both the Adult Probation Department and the Presentence

Investigation Unit.

1. The August 27, 2014 and October 3, 2014 Orders Are anUnauthorized Exercise of Judicial Power Because No Case inControversy Was Pending and the Orders Do Not Arise from a RealControversy

There was no case in controversy pending when Judge Burge issued the August 27, 2014

Order or when Judge Betleski issued the October 3, 2014 Order. (¶11 and 15 of the Affidavit of

James R. Cordes executed on December 8, 2014 and Cordes Exhibits I and J). The Sheriff never

communicated to the Commissioners a request for funding increased security for the Adult

Probation Department and the Presentence Investigation Unit through the end of 2014. (¶13 of

the Affidavit of James R. Cordes executed on December 8, 2014). At the time the August 27,

2014 Order was entered or thereafter, the Sheriff had not filed suit against Relators nor sought a

writ of mandamus to order them to provide the funding which Relators were ordered to

appropriate by the August 27, 2014 and October 3, 2014 Orders. (¶11 and 15 of the Affidavit of

James R. Cordes executed on December 8, 2014 and Cordes Exhibits I and J).

“A "moot case" is one which seeks to get a judgment on a pretended controversy, when

in reality there is none, or a decision in advance about a right before it has been actually asserted

and contested, or a judgment upon some matter which, when rendered, for any reason, cannot

have any practical legal effect upon a then existing controversy.” Central Motors Corporation v.

City of Pepper Pike, 9 Ohio App.3d 18, 19, 457 N.E.2d 1178, 1180 (8th Dist. 1983) quoting

Davies v. Columbia Gas & Elec. Corp., 47 Ohio Law Abs. 225, 228, 70 N.E.2d 655 (12th Dist.

1946). See also Wilkins v. Wilkinson, 10th Dist. Franklin No. 01Ap-468, 2002-Ohio-523, 2002

Ohio App. Lexis 90, *12-13.

Judge Burge’s August 27, 2014 Order and Judge Betleski’s October 3, 2014 Order deal

23

with a pretended controversy between the Commissioners and the Sheriff or, at best, are

decisions in advance about a right before it has actually been asserted and contested. As such,

neither Judge Burge nor Judge Betleski had jurisdiction to enter an order directing the

Commissioners to fund the Sheriff or to provide the funds to the Court so the funds could pass

through to the Sheriff and, therefore, the August 27, 2014 and October 3, 2014 Orders are

unauthorized by law.

2. The August 27, 2014 and October 3, 2014 Orders Are anUnauthorized Exercise of Judicial Power Because They Usurp theRelators’ Legislative Function by Ordering the Legislative Branch toFund the Executive Branch Without Any Showing By the Sheriff thatthe Appropriation is Reasonable or Necessary and that theCommissioners Acted Arbitrarily, Unreasonably, or Unconscionably

Assuming arguendo that a case in controversy existed before Judge Burge at the time he

entered the August 27, 2014 Order and Judge Betleski at the time he entered the October 3, 2014

Order, both orders would still constitute an unauthorized exercise of judicial power because they

usurp the Commissioners’ funding authority and no evidence was presented by the Sheriff to

establish that the requested funds were reasonable and necessary and that the Commissioners

acted arbitrarily, unreasonably, or unconscionably in denying the request.

R.C. Chapter 311 governs the operation of the Sheriff’s office, but it does not provide the

Sheriff with the authority to mandate the funding for the Sheriff’s office. In Geauga County

Board of County Commissioners v. Geauga County Sheriff, 11th Dist. Geauga No. 2002-G-2484,

2003-Ohio-7201, the Geauga County Court of Appeals held that the Sheriff cannot mandate the

funds the Commissioners must appropriate to the Sheriff and that the Sheriff has the burden to

establish that the Commissioners’ appropriations were unreasonable even as to the Sheriff’s

mandatory duties:

24

The basic statutory provisions governing the operation of thecounty sheriff's office are set forth in R.C. Chapter 311. Ourreview of the various statutes in this chapter shows that they do notcontain any provisions which expressly give the sheriff theauthority to mandate certain funding for his department. R.C.311.07, which delineates the sheriff's basic duties, does not containsuch a provision. Similarly, such a provision is not set forth in R.C.341.01, which states that the sheriff is responsible for operating thecounty jail.

On the other hand, the Ohio Revised Code does have somestatutes which indicate that the Ohio General Assembly intendedfor county commissioners to exercise some control over thefunding of the sheriff's office. For example, R.C. 307.01(A) statesthat the commissioners must provide for all county officials allphysical facilities which are "needed." In addition, that statutestates that county commissioners must provide to the officials anyequipment which is "necessary" for the proper functioning of theoffices. Finally, R.C. 325.17 provides that, even though countyofficials have the power to hire certain employees to assist in theoperation of the office, the officials cannot give the employees anycompensation which is greater than the amount "fixed" by thecommissioners.

Taken as a whole, the applicable statutory provisions supportthe conclusion that the determination of funding for the GeaugaCounty Sheriff lies solely within appellants' sound discretion.Stated differently, the foregoing provisions readily indicate thatSheriff Simmons did not have any authority to mandate the amountof funding for his department. As a result, the trial court shouldhave placed the burden upon Sheriff Simmons to establish thatappellants' appropriations to him for the 2002 and 2003 fiscal yearswere unreasonable, even as to the mandatory duties under R.C.311.07(A).

Geauga County Board of County Commissioners v. Geauga County Sheriff, 11th Dist. Geauga

No. 2002-G-2484, 2003-Ohio-7201, P47-49.

In State ex rel. Trussell v. Board of County Commissioners of Meigs County, 155 Ohio

App.3d 320, 2003-Ohio-6084, 800 N.E.2d 381, P12 (4th Dist.), the Sheriff in that matter argued

that the executive branch is entitled to the same presumption that courts receive in funding

disputes with the county commissioners. The Meigs County Court of Appeals held that no such

25

presumption exists for the executive, that the Commissioners have the final authority to

determine the Sheriff’s budget, and that the Sheriff must establish that the requested funding was

reasonable and necessary and that the commissioners arbitrarily, unreasonably, or

unconscionably refused to appropriate that amount:

The sheriff's office is not a court, but he argues that he shouldreceive his full budget request under the separation-of-powersdoctrine, like a court, because "it cannot be contended that this ruleand the policy behind it do not apply equally to disputes betweenthe legislative and executive branch." He cites no authority for thisproposition, except statutes placing mandatory law-enforcementduties and judicially related duties on the sheriff's office.

The Supreme Court has never, so far as we can determine,applied the separation-of-powers doctrine to disputes between theexecutive and legislative branches. We perceive at least one reasonfor this: to do so would make every state and local executive-branch office the final authority for appropriating its own budget,absent an abuse of discretion, and deprive the General Assemblyand local legislative authorities of their traditional appropriationpowers. We do not deny that there may be a certain inequity incarving out an exception for the judicial branch of government, butwe are not prepared, in light of existing authority, to extend thedoctrine to the executive branch of government in the budgetarycontext.

Nor has the sheriff directed us to any statute making him, andnot the board, the final authority for appropriations to his office.The board aptly points out that R.C. Chapter 5705 makes it theappropriating authority for county offices. The board also pointsout that R.C. 5705.28(C)(1) requires it to appropriate the fullamount only for offices that "may fix the amount of revenue theyare to receive." Thus, the general budgeting statutes recognize thejudicially created and statutory exceptions to the board's generalappropriating authority. Since the sheriff's office is not one ofthose exceptions, his argument fails on this point. The board hasthe final authority to determine the sheriff's budget, absent anabuse of its discretion.

***

The sheriff also contends that the board abused its discretion byfailing to fully appropriate the funds he requested to operate his

26

office, with respect to both his mandatory and non-mandatoryduties. To prevail, the sheriff must establish that the requestedfunding was reasonable and necessary and that the boardarbitrarily, unreasonably, or unconscionably refused to appropriatethat amount. The burden of proof to establish this claim is on thesheriff.

State ex rel. Trussell v. Board of County Commissioners of Meigs County, 155 Ohio App.3d 320,

2003-Ohio-6084, 800 N.E.2d 381, P10-12 and P14 citing State ex rel. Veterans Svc. Ofc. of

Pickaway Cty. v. Bd. of Cty. Cmmrs. of Pickaway Cty, 61 Ohio St.3d 461, 463, 575 N.E.2d 206,

207 (1991).

R.C. Chapter 5705 provides that the Commissioners are the funding authority for county

offices and the Commissioners have the final authority to determine the Sheriff’s budget, along

with the budgets of all other county offices. In the concurring opinion in Trussell, the Honorable

William H. Harsha aptly described the board of county commissioners’ duties under R.C.

Chapter 5705 and noted the courts are ill suited to make isolated funding decisions as follows:

Under R.C. 5705.01(C) and R.C. 5705.38(A), the legislaturehas charged the board with the statutory duty of allocating scarcefinancial resources among competing county offices. In order toaccomplish this difficult task, the board is vested with considerablediscretion, for it must prioritize the demand for funds and allocatethem so that each county office can perform its statutory dutywithin the limits of the resources available. R.C. 5705.38(C) andR.C. 5705.39. In order to do this the board must obviously considerthe request of each office in the context of total demand for countyresources.

Courts are ill-suited to make an isolated decision as to whatlevel an individual county office should be funded. Moreover,courts are not the best mechanism to determine how much moneymust effectively be taken from other county offices, thuspotentially rendering those offices unable to perform their statutoryduties, in order to give priority to one county office.

State ex rel. Trussell v. Board of County Commissioners of Meigs County, 155 Ohio App.3d 320,

2003-Ohio-6084, 800 N.E.2d 381, P32-33.

27

It is clear that the burden of proof is on the Sheriff to establish that the requested funds

were reasonable and necessary and that Relators acted arbitrarily, unreasonably, or

unconscionably in refusing to appropriate the requested amount. Obviously, this has not been

established by the Sheriff because no case in controversy was pending before Judge Burge or

Judge Betleski and no evidence was presented when the August 27, 2014 and October 3, 2014

Orders were entered.

Respondents’ attempt to fix the fatal flaws of Judge Burge’s August 27, 2014 Order by

the issuance of the October 3, 2014 Order by Judge Betleski was unsuccessful. Like the August

27, 2014 Order, the October 3, 2014 Order also usurps the Commissioners’ funding authority

and no evidence was presented by the Sheriff to establish that the requested funds were

reasonable and necessary and that the Commissioners acted arbitrarily, unreasonably, or

unconscionably in denying the request. The fact that Judge Betleski attempted to have the Court

of Common Pleas act as a straw man to receive funding for the Sheriff does not change the

requirement that the Sheriff had to establish that the requested funds were reasonable and

necessary and that the Commissioners acted arbitrarily, unreasonably, or unconscionably in

denying the request.

R.C. 311.07(A) provides in relevant part that “Under the direction and control of the

board of county commissioners, such sheriff shall have charge of the court house.” Respondents

recognize that R.C. 311.07(A) controls the Sheriff’s duties when they assert that it is the Sheriff’s

statutory duty to provide security to the Lorain County Court of Common Pleas and its various

subdivisions. (¶2 of the Affidavit of Sheriff Phil R. Stammitti and ¶9 of the Affidavit of Judge

Mark Betleski). As such, the October 3, 2014 Order’s attempt to fix the fatal flaws of the August

27, 2014 Order fails because whether the funds are appropriated directly to the Sheriff, as

28

ordered by the August 27, 2014 Order, or the funds are provided to the Court so that the Court

can provide the funds to the Sheriff, as ordered by the October 3, 2014 Order, the funds are

ultimately for the Sheriff to provide security for the Court of Common Pleas and its various

subdivisions pursuant to his statutory duty set forth in R.C. 311.07(A). Because the funds are for

the Sheriff to provide increased security, even if they pass through the Court of Common Pleas,

the Sheriff still has the burden of proof to establish that the requested funding was reasonable

and necessary and that the Commissioners refusal to provide the funding was arbitrary,

unreasonable, or unconscionable. The Sheriff has never established the same because there has

never been a case in controversy concerning this matter.

Finally, the October 3, 2014 Order by which the August 27, 2014 Order was modified so

that the “Commissioners alternatively may fulfill their obligations … by appropriating the

required funds…to the Court of Common Pleas” is an even more blatant attempt to usurp the

Relators’ Legislative funding authority than the Order it modifies. (¶15 of the Affidavit of James

R. Cordes executed on December 8, 2014 and Cordes Exhibit J). Respondents seek to set a

terrible precedent by which a court can order the legislature to fund a court directly so that the

court can then dole the funds out to other governmental agencies as it deems appropriate because

the other governmental agencies’ activities in some way affect the court. Such a precedent

would completely eviscerate the Legislature’s funding authority. For example, assume that the

commissioners had not budgeted sufficient funds for road crews in a harsh winter and streets

were unpassable preventing judges, lawyers, jurors, and litigants from reaching the courthouse.

The court then orders the commissioners to appropriate funds to the court so that the court could

then dole those funds out to the road crew to make the streets passable. The clear usurpation of

the legislative funding authority and the tremendous potential for abuse are obvious from

29

Respondents’ attempt to set up the Court as a straw man to receive funding for the Sheriff in this

instance.

3. If a Case in Controversy Was Pending and Evidence Had BeenPresented When the August 27, 2014 and October 3, 2014 Orders WereIssued, the Evidence Would Have Established that the CommissionersActed Reasonably and That the Sheriff’s 2014 Budge Has SufficientFunds to Provide Increased Security at the Adult Probation Departmentand Presentence Investigation Unit

If a case in controversy existed before Judge Burge when he entered the August 27, 2014

Order and Judge Betleski when he entered the October 3, 2014 Order, the evidence that would

have been presented would have demonstrated that the Commissioners have acted reasonably

and that the Sheriff’s 2014 budget had sufficient funds to provide increased security at the Adult

Probation Department and the Presentence Investigation Unit.

The Commissioners attempted to work with the Respondents to Provide security at the

Old Courthouse, but Respondents responded with the August 27, 2014 Order. The Sheriff

proposed providing increased security at only the Old Courthouse, where the Adult Probation

Department is located, as an alternative that would cost approximately half as much as providing

security at both the Adult Probation Department and Presentence Investigation Unit locations.

(¶9 of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes Exhibit G).

The Commissioners responded to the Sheriff’s proposal by proposing to the Judges that if the

Judges agreed to move the Presentence Investigation Unit on a temporary basis into the Old

Courthouse thereby combining Adult Probation and Presentence Investigation into one facility,

the Commissioners believed they could provide the requested funding for increased security at

the Old Courthouse. (¶10 of the Affidavit of James R. Cordes executed on December 8, 2014 and

Cordes Exhibit H). The Commissioners proposed two locations in the Old Courthouse for

temporarily housing the Presentence Investigation Unit and requested that the Judges choose

30

their preferred temporary location. (¶10 of the Affidavit of James R. Cordes executed on

December 8, 2014 and Cordes Exhibit H).

Instead of working with the Commissioners on moving the Presentence Investigation

Unit into the Old Courthouse at least on a temporary basis so that increased security could be

provided for both Adult Probation and Presentence Investigation at one facility, Judge Burge

responded by ordering the Commissioners to appropriate funds to pay for security at both

locations. (¶11 of the Affidavit of James R. Cordes executed on December 8, 2014 and Cordes

Exhibit I).

Moreover, if a case in controversy existed before Judge Burge when he entered the

August 27, 2014 Order or Judge Betleski when he entered the October 3, 2014 Order, evidence

would have been presented to demonstrate that the Sheriff’s 2014 budget had sufficient funds to

provide increased security at both the Adult Probation Department and Presentence Investigation

Unit locations through the end of 2014.

Lorain County’s general fund budget for 2014 is approximately $55.6 million. (¶22 of the

Affidavit of James R. Cordes executed on December 8, 2014). The Sheriff’s 2014 annual budget

is $4,911,622 and these funds are provided from the County’s general fund. (¶23 of the Affidavit

of James R. Cordes executed on December 8, 2014). The Sheriffs’ jail fund is also provided in

part by appropriations from the County’s general fund. (¶24 of the Affidavit of James R. Cordes

executed on December 8, 2014). The portion of the County’s 2014 general fund that is budgeted

for the Sheriffs’ jail fund is $3,550,000. (¶25 of the Affidavit of James R. Cordes executed on

December 8, 2014). Combining the Sheriff’s 2014 annual budget and the portion of the Sheriff’s

2014 jail fund that is provided by the County’s general fund, the Sheriff’s office is budgeted to

receive $8,461,622 in 2014. (¶26 of the Affidavit of James R. Cordes executed on December 8,

31

2014). This sum compromises over 15% of the County’s general fund budget. (¶26 of the

Affidavit of James R. Cordes executed on December 8, 2014).

The Sheriff has sufficient funds in the Sheriff’s 2014 annual budget to pay for deputies

and screening devices at both the Adult Probation Department and the Presentence Investigation

Unit. (¶27 of the Affidavit of James R. Cordes executed on December 8, 2014). The Sheriff may

have to reduce some of the discretionary services that the Sheriff’s Office currently provides in

order to pay for the increased security, but the Sheriff has the available funds to pay for the

increased security at both the Adult Probation Department and the Presentence Investigation

Unit. (¶27 of the Affidavit of James R. Cordes executed on December 8, 2014).

The August 27, 2014 and October 3, 2014 Orders were clearly unauthorized by law

because no showing that the Relators alleged refusal to fund the Sheriff could have been made in

that the Sheriff already has sufficient funds to provide increased security. It is clear that the

August 27, 2014 and October 3, 2014 Orders usurp the Relators’ Legislative funding authority

and that such orders directing Relators to appropriate funds to the Executive, the Sheriff, were an

authorized exercise of judicial power.

E. A Denial of Relators’ Sought After Writ of Prohibition Will Result in anInjury for Which No Other Adequate Remedy Exists in the Ordinary Courseof Law

A denial of the Commissioners’ sought after Writ of Prohibition will result in an injury

for which no other adequate remedy exists in the ordinary course of law. Because no case in

controversy existed before either Judge Burge at the time the August 27, 2014 Order was entered

or Judge Betleski at the time the October 3, 2014 Order was entered, no evidence was presented

and no record exists.

Without an evidentiary record, the Commissioners do not have the ability to appeal Judge

32

Burge’s August 27, 2014 Order or Judge Betleski’s October 3, 2014 Order to the Lorain County

Court of Appeals. Rather, the Commissioners are stuck in a limbo created by Judge Burge and

Judge Betleski entering orders without a case in controversy pending before them and for which

there can be no appeal because there is no record. Through Judge Burge and Judge Betleski’s

unauthorized exercise of judicial power, the Commissioners have been placed in an untenable

position for which no adequate remedy exists in the ordinary course of law.

It is anticipated that Respondents will argue that Relators had an adequate remedy at law

through a contempt hearing and the appeal process. Such an argument lacks merit and would

lead to a sham proceeding, which would have played out as follows. Relators could have

ignored the August 27, 2014 and October 3, 2014 Orders so that they could be found in

contempt. At the contempt hearing, Relators could have then attempted to convince Judge Burge

and/or Judge Betleski, who both employed the authorized use of judicial power via a sua sponte

order when no case in controversy was pending before them, of why they did not have the

authorization to enter the orders. After this contempt hearing at which Judge Burge and/or Judge

Betleski would have undoubtedly found that they had properly exercised judicial power and held

Relators in contempt (the fact that Respondents are contesting that the Orders constitute an

unauthorized exercise of judicial power in this proceeding confirms this point), Relators then

would have had the ability to appeal the contempt order to the Lorain County Court of Appeals

but could have only appealed the issue of the unauthorized exercise of power through the context

of an erroneous contempt order. Apparently, Respondents do not see that such a contempt

hearing would be a sham and a complete waste of the taxpayers’ money.

In addition to the obvious problems with Respondents’ anticipated suggested “adequate

remedy at law,” Respondents’ proposed solution requiring Relators to submit to an interested and

33

partial judge, such as Judge Burge or Judge Betleski, in a contempt proceeding violates Relators’

due process rights. In Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 61 Ohio Op.2d

292 (1972), the United States Supreme Court held that the Mayor of the Village of Monroeville,

Ohio was not an impartial judge when presiding over the Mayor’s Court where the fines levied

by the Court made up a significant portion of the Village’s budget and, as such, a violation of the

defendants’ due process rights:

The fact that the mayor there shared directly in the fees andcosts did not define the limits of the principle. Although "the mereunion of the executive power and the judicial power in him can notbe said to violate due process of law," [Tumey v. Ohio, 273 U.S.510 (1927)] at 534, the test is whether the mayor's situation is one"which would offer a possible temptation to the average man as ajudge to forget the burden of proof required to convict thedefendant, or which might lead him not to hold the balance nice,clear and true between the State and the accused .. . ." Id., at 532.Plainly that "possible temptation" may also exist when the mayor'sexecutive responsibilities for village finances may make himpartisan to maintain the high level of contribution from the mayor'scourt. This, too, is a "situation in which an official perforceoccupies two practically and seriously inconsistent positions, onepartisan and the other judicial, [and] necessarily involves a lack ofdue process of law in the trial of defendants charged with crimesbefore him." Id., at 534.

Ward v. Village of Monroeville, 409 U.S. 57, 60, 93 S.Ct. 80, 83 (1972).

In response to the Mayor’s arguments that any unfairness at the trial level could be

corrected on appeal, the United States Supreme Court rejected those arguments holding that a

party is entitled to a neutral and detached judge in the first instance:

Respondent also argues that any unfairness at the trial level canbe corrected on appeal and trial de novo in the County Court ofCommon Pleas. We disagree. This "procedural safeguard" doesnot guarantee a fair trial in the mayor's court; there is nothing tosuggest that the incentive to convict would be diminished by thepossibility of reversal on appeal. Nor, in any event, may the State'strial court procedure be deemed constitutionally acceptable simplybecause the State eventually offers a defendant an impartial

34

adjudication. Petitioner is entitled to a neutral and detached judgein the first instance.

Ward v. Village of Monroeville, 409 U.S. 57, 61-62, 93 S.Ct. 80, 83-84 (1972).

Clearly, both Judge Burge and Judge Betleski would have been neither a neutral nor

detached judicial officer concerning the August 27, 2014 and October 3, 2014 Orders had

Relators been forced to appear at a contempt hearing before them. Moreover, Relators are

entitled to a neutral and detached judge in the first instance and cannot be forced to wait until an

appeal for the same. As such, Respondents’ anticipated arguments that Relators should have

been forced to submit to a contempt hearing before Judge Burge or Judge Betleski clearly lack

merit because such a hearing before them would violate Relators’ due process rights.

Finally, Relators need not establish the lack of an adequate remedy at law where

jurisdiction is patently and unambiguously lacking as it was for Judge Burge to enter the August

27, 2014 Order and for Judge Betleski to enter the October 3, 2014 Order. "Where jurisdiction is

patently and unambiguously lacking, [a relator] need not establish the lack of an adequate

remedy at law because the availability of alternate remedies like appeal would be immaterial."

State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, P36

quoting State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-

2637, 889 N.E.2d 500, P 15.

For the reasons set forth in Section III(D) of this Brief, Judge Burge and Judge Betleski

patently and unambiguously lacked jurisdiction to enter the August 27, 2014 and October 3,

2014 Orders which ordered the Relators, the Legislative funding authority, to appropriate funds

to the Executive, the Sheriff, absent a showing by the Sheriff in a pending case in controversy

that the requested funds were reasonable and necessary and that Relators acted arbitrarily,

unreasonably, or unconscionably in allegedly refusing to appropriate the funds. Clearly, as no

35

case in controversy was pending before Judge Burge or Judge Betleski, no such showing was

made by the Sheriff and neither Judge Burge nor Judge Betleski had jurisdiction to enter such an

order.

IV. CONCLUSION

For all the foregoing reasons, this Court should issue a permanent Writ of Prohibition

forbidding Respondents from exercising judicial power to enforce the August 27, 2014 Order

and the October 3, 2014 Order.

Respectfully submitted,

/s/ Robert E. CahillROBERT E. CAHILL (0072918)JAMES L. McCRYSTAL, JR. (0017492)E. JOHN BRZYTWA (0013466)BRZYTWA QUICK & McCRYSTAL LLC900 Skylight Office Tower1660 West 2nd StreetCleveland, Ohio 44113-1411(216) 664-6900(216) 664-6901 (Fax)CAHILL@BQMLAW.COM

BRZYTWA@BQMLAW.COM

MCCRYSTAL@BQMLAW.COM

Attorneys for RelatorsThe Lorain County Commissioners

36

CERTIFICATE OF SERVICE

A copy of the foregoing Relators’ Merit Brief was sent via regular U.S. Mail, postage

prepaid, and via e-mail on December 18, 2014 to:

Subodh Chandra (0069233)Donald Screen (0044070)Ashlie Case Sletvold (079477)Sandhya Gupta (0086052)1265 West Sixth St., Suite 400Cleveland, OH 44113-1326Subodh.Chandra@ChandraLaw.comDonald.Screen@ ChandraLaw.comSandhya.Gupta@ ChandraLaw.com

Attorneys for Respondents

/s/ Robert E. CahillROBERT E. CAHILL (0072918)

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APPENDIX

The Appendix consists of the following:

1. The August 27, 2014 Order and the attachments thereto totaling eight pages labeled

Appendix 1 – August 27, 2014 Order.

2. The October 3, 2014 Order and the attachments thereto totaling nine pages labeled

Appendix 2 – October 3, 2014 Order.

Appendix 1 - August 27, 2014 Order

Appendix 1 - August 27, 2014 Order

Appendix 1 - August 27, 2014 Order

Appendix 1 - August 27, 2014 Order

Appendix 1 - August 27, 2014 Order

Appendix 1 - August 27, 2014 Order

Appendix 1 - August 27, 2014 Order

Appendix 1 - August 27, 2014 Order

Appendix 2 - October 3, 2014 Order

Appendix 2 - October 3, 2014 Order

Appendix 2 - October 3, 2014 Order

Appendix 2 - October 3, 2014 Order

Appendix 2 - October 3, 2014 Order

Appendix 2 - October 3, 2014 Order

Appendix 2 - October 3, 2014 Order

Appendix 2 - October 3, 2014 Order

Appendix 2 - October 3, 2014 Order