State ex rel. Grendell v. Geauga Cty. Bd. of Commrs.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Grendell v. Geauga Cty. Bd. of Commrs., Slip Opinion No. 2022-Ohio-2833.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2022-OHIO-2833THE STATE EX REL. GRENDELL, JUDGE, v. GEAUGA COUNTY BOARD OF
COMMISSIONERS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Grendell v. Geauga Cty. Bd. of Commrs., Slip
Opinion No. 2022-Ohio-2833.]
Mandamus—Writ sought to order county board of commissioners to approve
judge’s application for appointment of counsel to bring a mandamus action
to secure payment of court expenses—Once expenses were paid, relief in
mandamus action would not affect the outcome—Mandamus will not lie to
compel a vain act—Cause dismissed as moot.
(No. 2021-1159—Submitted June 14, 2022—Decided August 17, 2022.)
IN MANDAMUS.
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Per Curiam.
{¶ 1} In this original action, relator, Timothy J. Grendell, judge of the
Geauga County Court of Common Pleas, Probate and Juvenile Divisions, seeks a
writ of mandamus against respondents, the Geauga County Board of
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Commissioners and Geauga County Prosecutor James R. Flaiz (collectively, “the
county”), ordering the county to proceed under R.C. 305.14 with the submission
and approval of his application for appointment of counsel. He also has filed a
motion for a peremptory writ of mandamus and a motion to strike the county’s
notice of mootness. We earlier granted an alternative writ, see 166 Ohio St.3d
1403, 2022-Ohio-461, 181 N.E.3d 1187, but we now dismiss this case as moot,
deny the motion for a peremptory writ as moot, and deny the motion to strike.
I. BACKGROUND
{¶ 2} This case stems from a dispute between Judge Grendell and Charles
E. Walder, Geauga County Auditor, over unpaid expenses (“new expenses”)
authorized by Judge Grendell totaling $19,858.36. This is not the first time that an
expense dispute between them has arisen. In State ex rel. Grendell v. Walder, 166
Ohio St.3d 533, 2022-Ohio-204, 188 N.E.3d 152, ¶ 1 (“Grendell I”), we granted a
writ of mandamus ordering Walder to issue warrants on the county treasurer to pay
previous expenses that Judge Grendell had authorized.
{¶ 3} After Judge Grendell failed to secure payment for the new expenses,
he submitted an application to the county requesting the appointment of attorney
Stephen Funk—Judge Grendell’s appointed counsel in Grendell I—to commence
another mandamus action against Walder to secure that payment. It is undisputed
that the county has not processed the application or responded to Judge Grendell’s
follow-up emails urging it to do so.
{¶ 4} Although Ohio law generally provides that the county prosecutor shall
represent a county official in a matter connected with the official’s duties, see R.C.
309.09(A), Judge Grendell sought the appointment of Funk because he thought that
Flaiz’s representation would be inadequate. Judge Grendell cites a laundry list of
instances in which he and Flaiz have not gotten along and believes there is “no
doubt that Flaiz is incapable of providing unbiased legal advice to the [probate and
juvenile] court.” Flaiz recused himself from Grendell I, concluding that a conflict
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would have arisen had he attempted to represent one county official (Judge
Grendell) against another (Walder).
{¶ 5} After Judge Grendell filed his complaint in this case, we announced
our decision in Grendell I, prompting Judge Grendell to file a motion for a
peremptory writ in this case asserting that the decision in Grendell I had removed
any justification for the county’s refusal to approve his application. The county
then filed a notice of mootness, stating that in light of Grendell I, Walder had
authorized payment of the new expenses. The county attached to its notice copies
of three checks and an affidavit attesting that Walder had authorized payment.
Judge Grendell asks this court to strike the county’s notice.
II. ANALYSIS
A. Motion to strike
{¶ 6} Judge Grendell says that the county’s notice of mootness should be
stricken because it is not authorized by this court’s rules. Rather than filing a notice,
Judge Grendell says that the county should have filed a motion under S.Ct.Prac.R.
4.01(A)(1), which provides that “[u]nless otherwise addressed by these rules, an
application for an order or other relief shall be made by filing a motion for the order
or relief.”
{¶ 7} We deny Judge Grendell’s motion as futile because the county’s
evidence and merit brief contain the same materials and arguments that are in its
notice. Thus, even if we were to strike the notice, we still would have to grapple
with the materials and arguments contained within it by way of the county’s
evidence and merit brief.
B. Mootness
{¶ 8} The county argues that this case is moot because Judge Grendell
already has accomplished what he had hoped to gain from the appointment of Funk
as his counsel: Walder’s authorization of payment for the new expenses.
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{¶ 9} “[I]t is the duty of every judicial tribunal to decide actual
controversies” and withhold advice upon moot questions. Fortner v. Thomas, 22
Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). When an actual controversy ceases to
exist, “this court must dismiss the case as moot.” M.R. v. Niesen, __ Ohio St.3d __,
2022-Ohio-1130, __ N.E.3d __, ¶ 7. “Mandamus will not issue to compel a vain
act.” State ex rel. Burkons v. Beachwood, __ Ohio St.3d __, 2022-Ohio-748, __
N.E.3d __, ¶ 14. “An act is in vain when the underlying dispute has become moot,
such that relief in the pending lawsuit would not affect the outcome.” Id.{¶ 10} It is true, as Judge Grendell says, that he brought this action to obtain
a writ of mandamus ordering the county to approve his application seeking Funk’s
appointment, not to obtain a writ of mandamus ordering Walder to authorize
payment of the new expenses. Even so, Judge Grendell’s objective in bringing this
action has been effectively achieved: Judge Grendell sought Funk’s appointment to
commence a mandamus action to secure payment of the new expenses and it is
undisputed that Walder has now authorized payment of those expenses. See State
ex rel. Sawyer v. Cendroski, 118 Ohio St.3d 50, 2008-Ohio-1771, 885 N.E.2d 938,
¶ 8 (dismissing appeal as moot because, “[i]n effect, the objective of [the relator’s]
mandamus claim has now been achieved”). Given Walder’s authorization, a writ
of mandamus ordering the county to approve Judge Grendell’s application for
appointment of counsel would be in vain, for even if Funk were appointed, there
would be nothing for him to litigate.
{¶ 11} We are unpersuaded by Judge Grendell’s counterarguments. First,
he argues that the mere fact that Walder authorized payment is not decisive,
because, he says, he wrote his complaint in such a way so as to capture other
appointment-application disputes that might arise after the complaint’s filing. We
disagree. Judge Grendell states in his complaint that this action arises from a
dispute between himself and Walder over unpaid expenses, that the unpaid
expenses totaling $19,858.36 “l[ie] at the heart” of this original action, and that he
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submitted an application to the county seeking the appointment of Funk to secure
payment of those expenses. Judge Grendell’s prayer for relief reinforces these
statements: it requests that the county be ordered to proceed with his application
seeking Funk’s appointment. And contrary to what Judge Grendell argues,
Burkons, does not stand for the proposition that he may enlarge the scope of his
requested relief based on new facts; rather, it observed that in “ ‘extraordinary-writ
cases, courts are not limited to the facts at the time a proceeding is commenced, but
should consider facts at the time it determines whether to grant the writ.’ ” Id. at
¶ 15, quoting State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-
4798, 874 N.E.2d 516, ¶ 11.
{¶ 12} Second, Judge Grendell says that the mootness doctrine does not
apply here because this case is one of those “exceptional” few that are “capable of
repetition, yet evading review.” State ex rel. Calvary v. Upper Arlington, 89 Ohio
St.3d 229, 231, 729 N.E.2d 1182 (2000). To meet the requirements of this
exception, Judge Grendell must show that “(1) the challenged action is too short in
its duration to be fully litigated before its cessation or expiration, and (2) there is a
reasonable expectation that the same complaining party will be subject to the same
action again.” Id.{¶ 13} Judge Grendell cannot meet the first prong of the test because, were
the county to fail to process one of his future appointment applications, he would
have time to seek judicial review. See Burkons at ¶ 17 (determining that the
mootness exception did not apply). Indeed, when disputes have arisen between
public officials over the processing (or not) of appointment applications, courts
have had sufficient time to review them. See State ex rel. Hillyer v. Tuscarawas
Cty. Bd. of Commrs., 70 Ohio St.3d 94, 97-98, 637 N.E.2d 311 (1994); State ex rel.
Stamps v. Montgomery Cty. Automatic Data Processing Bd., 42 Ohio St.3d 164,
166-167, 538 N.E.2d 105 (1989); State ex rel. Corrigan v. Seminatore, 66 Ohio
St.2d 459, 463-464, 423 N.E.2d 105 (1981).
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{¶ 14} Our decision in State ex rel. Cincinnati Enquirer v. Heath, 121 Ohio
St.3d 165, 2009-Ohio-590, 902 N.E.2d 976, which Judge Grendell relies on, is not
to the contrary. There, we concluded that a newspaper company’s receipt of records
it had requested that were related to a sealed criminal case did not moot its
mandamus claim. But we reached that conclusion by analogizing the situation to
one involving an order closing a courtroom in a criminal case, an order that often
evades review because it “ ‘usually expires’ ” before the onset of appellate review.
Id. at ¶ 12, quoting State ex rel. Beacon Journal Publishing Co. v. Donaldson, 63
Ohio St.3d 173, 175, 586 N.E.2d 101 (1992). Nothing about the appointment-
application process resembles a courtroom-closure order.
{¶ 15} Next, Judge Grendell points to Walder’s “power of the purse,”
saying that Walder authorized payment of the new expenses “solely to derail this
Court’s review” and that he could frustrate judicial review of a future action like
this one by simply doing the same. Judge Grendell further says that given the
friction between himself and Walder, disputes like this are bound to arise again.
{¶ 16} To begin, it is not obvious how Judge Grendell would incur an injury
if Walder were to pay an expense that Judge Grendell might seek reimbursement
for in the future. In any event, the larger problem with Judge Grendell’s argument
is that it ignores the effect of Grendell I. After Judge Grendell filed this action, we
decided Grendell I, in which we clarified the scope of an auditor’s duty to authorize
payment for court-ordered expenditures and granted a writ of mandamus ordering
Walder to authorize payment for expenses that Judge Grendell had determined were
properly incurred. Seventeen days after Grendell I was handed down, Walder
authorized payment of the new expenses. This sequence of events undercuts Judge
Grendell’s speculation that Walder strategically authorized payment here for no
other reason than to frustrate this court’s review. A more sensible explanation is
that, as the county says, Walder authorized payment in obedience to the order. And
now that Grendell I has been decided, it is hard to see how, as Judge Grendell
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claims, a dispute like this one would be “likely”—not just theoretically possible—
to repeat itself.
{¶ 17} Last, Judge Grendell points to what he describes as actual
recurrences of the dispute under consideration. In February 2022, after the
announcement of Grendell I, Walder issued a press release characterizing the
decision as a “blank check” for judges and implying that the expenses sought by
Judge Grendell in that case were a “wasteful abuse” of taxpayer money. In response
to Grendell I, Walder created a page on his website titled “Public Transparency”
that lists the expenses he has paid to Grendell under protest. The website displays
documents containing what Judge Grendell describes as sensitive information,
namely, the home addresses of visitation supervisors and business owners who
provide services to the Geauga County courts. Concerned that Walder’s actions
were creating a public spectacle and endangering vendors’ private information,
Judge Grendell emailed the county with a request for the appointment of counsel to
“advise [him] as to how best to protect the Court’s reputation in the community,
maintain public confidence in the Court amidst the barrage of public disparagement
from the County Auditor, administer justice fairly and efficiently, and protect the
safety of [the] Court’s vendors.” Flaiz told Judge Grendell that he would not
participate in an application for appointment of counsel because he saw no need for
one.
{¶ 18} Although the facts described in the preceding paragraph and this case
both share a core feature—that is, a refusal on the part of county officials to appoint
counsel for Judge Grendell—Judge Grendell fails to persuasively show that those
facts present the “same action” featured here. Calvary, 89 Ohio St.3d at 231, 729
N.E.2d 1182. Whereas this case originates from a payment dispute between Judge
Grendell and Walder, those “same unique circumstances,” Smith v. Leis, 111 Ohio
St.3d 493, 2006-Ohio-6113, 857 N.E.2d 138, ¶ 15, are not present in the preceding
paragraph, see id. (concluding that the same-action prong was unmet).
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{¶ 19} Judge Grendell’s passing reference in his reply brief to a pending
prohibition action brought against him by Flaiz on behalf of the county
commissioners similarly fails. Even if it were proper for this court to take judicial
notice of that action, as Judge Grendell says it would be, Judge Grendell has not
presented sufficient information about that action to enable this court to conclude
that it is the same action as presented here.
{¶ 20} At bottom, Judge Grendell must do more than point to a contentious
relationship with county officials to meet the requirements of the mootness
exception. It follows that we must dismiss this case as moot and deny as moot
Judge Grendell’s motion for a peremptory writ.
III. CONCLUSION
{¶ 21} We deny Judge Grendell’s motion to strike, dismiss this case as
moot, and deny as moot his motion for a peremptory writ.
Cause dismissed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
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Flowers & Grube, Paul W. Flowers, Louis E. Grube, and Melissa A. Ghrist,
for relator.
Mazanec, Raskin, & Ryder Co., L.P.A., and Frank H. Scialdone, for
respondents.
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