State ex rel. McQueen v. Cuyahoga Cty. Court of Common Pleas, Probate Div. , 135 Ohio St. 3d 291 ( 2013 )

[Cite as State ex rel. McQueen v. Cuyahoga Cty. Court of Common Pleas, Probate Div., 135
Ohio St.3d 291, 2013-Ohio-65.]
THE STATE EX REL. MCQUEEN, APPELLANT, v. COURT OF COMMON PLEAS OF
CUYAHOGA COUNTY, PROBATE DIVISION, APPELLEE.
[Cite as State ex rel. McQueen v. Cuyahoga Cty. Court of Common Pleas,
Probate Div., 135 Ohio St.3d 291, 2013-Ohio-65.]
Guardianships—Hearings on continued necessity of guardianship—R.C.
2111.49(C) and 2111.02(C)(7)(d)—Appointment of attorney at court
expense required.
(No. 2012-0923—Submitted January 9, 2013—Decided January 16, 2013.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 97835, 2012-Ohio-1839.
__________________
Per Curiam.
{¶ 1} This is an appeal by appellant, James L. McQueen, an indigent
ward subject to a guardianship, from a judgment entered by the court of appeals
denying his request for a writ of mandamus to compel appellee, the Court of
Common Pleas of Cuyahoga County, Probate Division, to appoint counsel at
court expense for him in a hearing to review the continued necessity of the
guardianship. Because McQueen established his entitlement to the requested
extraordinary relief in mandamus, we reverse the judgment of the court of appeals
and grant the writ.
Facts
{¶ 2} In May 2010, the probate court granted the application of Karyn
Seeger of Adult Guardianship Services to be appointed the guardian of McQueen
and placed McQueen in a secured nursing facility. The probate court in effect
found that McQueen was incompetent because prior to his hospitalization and
placement in the nursing home, he was “homeless * * * [and] without medication
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to control his diagnosed diabetes and schizophrenia, and was not compliant with
his mental health case manager.” The probate court had determined that
McQueen was indigent and unable to retain counsel and sua sponte appointed an
attorney to represent McQueen at the hearing on Seeger’s application to be
appointed as his guardian. The probate court later granted McQueen’s appointed
counsel’s application for attorney fees in connection with his representation of
McQueen for the hearing on the appointment of a guardian for him.
{¶ 3} In September 2011, after more than 120 days had elapsed since the
probate court’s appointment of the guardian for McQueen, he submitted a written
request to the probate court for a review of the guardianship. McQueen believed
that he no longer needed a guardian and that he was being medicated against his
will. He requested that the case be set for a review hearing and that counsel be
appointed for him. A guardianship-review hearing was originally scheduled in
the probate court for December 5, 2011, but the court did not appoint counsel to
represent McQueen for the hearing.
{¶ 4} The probate court rescheduled the review hearing for January 30,
2012, and McQueen filed a motion for the appointment of counsel at court
expense, an independent expert evaluation, and a continuance of the review
hearing. The probate court denied McQueen’s motion for a continuance, noted
that it had already ordered a medical evaluation of him, and stated that all other
matters raised by him—the request to appoint counsel—would be considered at
the review hearing.
{¶ 5} McQueen then filed a complaint in the court of appeals for a writ
of mandamus to compel the probate court to appoint counsel for him at the court’s
expense pursuant to R.C. 2111.49(C) and 2111.02(C)(7) for the guardianship-
review hearing. After the parties submitted motions for summary judgment, the
court of appeals granted the probate court’s motion and denied the writ.
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{¶ 6} This cause is now before the court upon McQueen’s appeal as of
right.
Analysis
Mandamus: Clear Legal Right and Clear Legal Duty
{¶ 7} To be entitled to the requested writ of mandamus, McQueen had to
establish a clear legal right to the requested relief, a clear legal duty on the part of
the probate court to provide it, and the lack of an adequate remedy in the ordinary
course of law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69,
960 N.E.2d 452, ¶ 6.
{¶ 8} For the first two requirements, McQueen claims that he has
established a clear legal right to the appointment of counsel at state expense for
the guardianship-review hearing and a corresponding clear legal duty on the part
of the probate court to appoint counsel at state expense for the hearing based on
R.C. 2111.49(C) and 2111.02(C)(7)(d).
{¶ 9} “[U]nlike criminal litigation, there is no general right of counsel in
civil litigation.” State ex rel. Burnes v. Athens Cty. Clerk of Courts, 83 Ohio
St.3d 523, 524, 700 N.E.2d 1260 (1998). Nevertheless, we have recognized the
right of indigent persons to appointed counsel at state expense when a statute
provides it. State ex rel. Asberry v. Payne, 82 Ohio St.3d 44, 693 N.E.2d 794(1998) (right to appointment of counsel for persons in loco parentis to child in
juvenile court custody proceeding under the applicable former version of R.C.
2151.352).
{¶ 10} The General Assembly has empowered probate courts to appoint a
guardian of an incompetent person. R.C. 2111.02(A). R.C. 2111.02(C) specifies
that “[p]rior to the appointment of a guardian * * *, the court shall conduct a
hearing on the matter of the appointment” and that “[t]he hearing shall be
conducted in accordance with all of the following” requirements:
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(1) The proposed guardian or limited guardian shall appear
at the hearing and, if appointed, shall swear under oath that the
proposed guardian or limited guardian has made and will continue
to make diligent efforts to file a true inventory in accordance with
section 2111.14 of the Revised Code and find and report all assets
belonging to the estate of the ward and that the proposed guardian
or limited guardian faithfully and completely will fulfill the other
duties of guardian, including the filing of timely and accurate
reports and accountings.
(2) If the hearing is conducted by a magistrate, the
procedures set forth in Civil Rule 53 shall be followed.
(3) If the hearing concerns the appointment of a guardian or
limited guardian for an alleged incompetent, the burden of proving
incompetency shall be by clear and convincing evidence.
(4) Upon request of the applicant, the alleged incompetent
for whom the appointment is sought or the alleged incompetent’s
counsel, or any interested party, a recording or record of the
hearing shall be made.
(5) Evidence of a less restrictive alternative to guardianship
may be introduced, and when introduced, shall be considered by
the court.
(6) The court may deny a guardianship based upon a
finding that a less restrictive alternative to guardianship exists.
(7) If the hearing concerns the appointment of a guardian or
limited guardian for an alleged incompetent, the alleged
incompetent has all of the following rights:
(a) The right to be represented by independent counsel of
the alleged incompetent’s choice;
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(b) The right to have a friend or family member of the
alleged incompetent’s choice present;
(c) The right to have evidence of an independent expert
evaluation introduced;
(d) If the alleged incompetent is indigent, upon the alleged
incompetent’s request:
(i) The right to have counsel and an independent expert
evaluator appointed at court expense;
(ii) If the guardianship, limited guardianship, or standby
guardianship decision is appealed, the right to have counsel
appointed and necessary transcripts for appeal prepared at court
expense.
(Emphasis added.)
{¶ 11} R.C. 2111.49, in turn, governs review hearings for existing
guardianships and provides:
(C) Except as provided in this division, for any
guardianship, upon written request by the ward, the ward’s
attorney, or any other interested party made at any time after the
expiration of one hundred twenty days from the date of the original
appointment of the guardian, a hearing shall be held in accordance
with section 2111.02 of the Revised Code to evaluate the continued
necessity of the guardianship.
(Emphasis added.)
{¶ 12} “Venerable principles of statutory construction require that in
construing statutes, we must give effect to every word and clause in the statute.”
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State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d
478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 18. “To discern legislative intent, we
‘read words and phrases in context and construe them in accordance with rules of
grammar and common usage.’ ” State ex rel. Barley v. Ohio Dept. of Job &
Family Servs., 132 Ohio St.3d 505, 2012-Ohio-3329, 974 N.E.2d 1183, ¶ 20,
quoting State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858,
856 N.E.2d 966, ¶ 11.
{¶ 13} With these principles guiding our analysis, we now consider the
mandamus claim.
{¶ 14} McQueen submitted a written request for a guardianship-review
hearing after the expiration of 120 days from the date the probate court had
originally appointed a guardian. Pursuant to R.C. 2111.49(C), the probate court
was then required to hold a hearing “in accordance with” R.C. 2111.02. The word
“accordance” means “agreement, accord.” Webster’s Third New International
Dictionary 12 (2002). Therefore, the hearing requirements specified in R.C.
2111.02 for hearings to initially determine whether to appoint a guardian for an
alleged incompetent person are explicitly incorporated in the R.C. 2111.49(C)
requirements for hearings on the necessity of continuing a guardianship. The
R.C. 2111.49(C) guardianship-review hearing must be conducted in agreement
and accord with the R.C. 2111.02 hearing requirements. One of these
requirements is set forth in R.C. 2111.02(C)(7)(d)(i), which confers a right on the
incompetent person to have counsel appointed at court expense.
{¶ 15} The court of appeals held otherwise because it concluded that the
pertinent statutes were unclear:
In the present case, the lack of controlling authority, the reiteration
of the burden of proof in both statutes, and the limiting language in
subsection 7 of “if the hearing concerns the appointment of the
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guardian” and “the alleged incompetent” create doubt as to
whether the General Assembly intended subsection 7 to be
incorporated into the hearing on the necessity of continuing a
guardianship. The relator has not established the clear legal right
and the clear legal duty enforceable in mandamus. Accordingly,
this court declines to issue the writ of mandamus and dissolves the
alternative writ.
(Emphasis sic.) 2012-Ohio-1839, ¶ 12.
{¶ 16} The court of appeals erred in so holding. Although it is true that
we cannot create the legal duty enforceable in a mandamus case, State ex rel.
Baroni v. Colletti, 130 Ohio St.3d 208, 2011-Ohio-5351, 957 N.E.2d 13, ¶ 22, it is
equally true that “courts in mandamus actions have a duty to construe
constitutions, charters, and statutes, if necessary, and thereafter evaluate whether
the relator has established the required clear legal right and clear legal duty,” and
in doing so, the courts have a “duty to resolve all doubts concerning the legal
interpretation of these provisions.” State ex rel. Fattlar v. Boyle, 83 Ohio St.3d
123, 125, 698 N.E.2d 987 (1998); see also State ex rel. Melvin v. Sweeney, 154
Ohio St. 223, 225-226, 94 N.E.2d 785 (1950). By not resolving any doubt it
found in the pertinent statutes in this mandamus proceeding, the court of appeals
abdicated its duty to do so. Fattlar.
{¶ 17} Moreover, there is no doubt in the provisions. R.C. 2111.49(C)
expressly incorporates the hearing requirements relating to original appointments
of guardians to proceedings concerning the continued necessity of guardianships.
These requirements include the right of indigent wards to appointed counsel at
court expense. Adopting the court of appeals’ construction would make the R.C.
2111.49(C) directive that the guardianship-review hearing “shall be held in
accordance with section 2111.02 of the Revised Code” meaningless. We must
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avoid this unreasonable construction by applying the plain language of these
provisions. Carna, 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 19,
quoting State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn., 95
Ohio St. 367, 373, 116 N.E. 516 (1917) (“ ‘No part [of the statute] should be
treated as superfluous unless that is manifestly required, and the court should
avoid that construction which renders a provision meaningless or inoperative’ ”).
{¶ 18} In addition, as McQueen’s evidence submitted in the court of
appeals established, this construction is consistent with the practice of probate
courts from Franklin, Summit, Medina, and Logan Counties. And amici curiae
claim that other states with statutes similar to the ones at issue here recognize the
right to appointed counsel in guardianship-review hearings. In fact, because the
court of appeals determined that the issue was susceptible of different
interpretations, it limited the reach of its holding by stating that it did not
“preclude other courts from appointing counsel for indigent wards in review
hearings, if the court concludes that such an appointment is necessary,
appropriate, or required.” 2012-Ohio-1839, ¶ 13. Again, the court erred in failing
to resolve any doubt it perceived in the statutes and in further finding that any
doubt existed.
{¶ 19} Therefore, based on the plain language of R.C. 2111.49(C) and
2111.02(C)(7)(d)(i), McQueen has established a clear legal right to the
appointment of counsel at court expense for the guardianship-review hearing and
a clear legal duty on the part of the probate court to appoint counsel for him at its
expense.
Mandamus: Lack of Adequate Remedy in the Ordinary Course of Law
{¶ 20} McQueen also established that he lacks an adequate remedy in the
ordinary course of law to challenge the probate court’s refusal to appoint counsel
for him for the guardianship-review hearing at court expense. See Asberry, 82
Ohio St.3d at 49, 693 N.E.2d 794 (grandmother lacked adequate remedy in the
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ordinary course of law to challenge juvenile court judge’s refusal to appoint
counsel for her in custody proceeding), and cases cited therein. Mandamus is thus
an appropriate remedy. Id.Conclusion
{¶ 21} Therefore, McQueen established his entitlement to the requested
extraordinary relief in mandamus. We reverse the judgment of the court of
appeals and grant the writ of mandamus to compel the probate court to appoint
counsel to represent him in the guardianship-review proceeding.
Judgment reversed
and writ granted.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
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Disability Rights Ohio, John R. Harrison, and Jason C. Boylan, for
appellant.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Charles
E. Hannan, Assistant Prosecuting Attorney, for appellee.
Ohio Poverty Law Center, L.L.C., Michael R. Smalz, and Sarah E. Biehl,
urging reversal for amici curiae Ohio Poverty Law Center, L.L.C., and National
Coalition for a Civil Right to Counsel.
McDonald Hopkins, L.L.C., and R. Jeffrey Pollock, urging reversal for
amici curiae The Arc of Ohio, National Alliance on Mental Illness of Ohio, and
People First of Ohio.
Natasha A. Plumly, urging reversal for amicus curiae Southeastern Ohio
Legal Services.
John E. Schrider Jr., urging reversal for amicus curiae Legal Aid Society
of Southwest Ohio.
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Paul E. Zindle, urging reversal for amicus curiae Community Legal Aid
Services, Inc.
William H. Fraser, urging reversal for amicus curiae Legal Aid Society of
Columbus.
Miriam Sheline, urging reversal for amicus curiae Pro Seniors, Inc.
Aneel L. Chablani, urging reversal for amicus curiae Advocates for Basic
Legal Equality, Inc.
Thomas Malakar, urging reversal for amicus curiae Legal Aid Society of
Cleveland.
Veronica L. Martinez, urging reversal for amicus curiae Legal Aid of
Western Ohio.
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