DocketNumber: No. 79CA3
Citation Numbers: 401 N.E.2d 947, 61 Ohio App. 2d 240
Judges: STEPHENSON, P. J.
Filed Date: 6/5/1979
Status: Precedential
Modified Date: 1/13/2023
This is an original action in prohibition and is before the court on a motion by relator for a judgment on the pleadings. On March 6, 1979, Joseph L. Cain, as prosecuting attorney of Gallia County, filed a complaint in *Page 241
this court seeking the issuance of a writ of prohibition against Ronald R. Calhoun, judge of the Gallia County Court of Common Pleas, to prevent the appointment of William N. Eachus as counsel for an indigent criminal defendant. The complaint averred, in substance, that one Forrest Jones is an indigent defendant in a criminal matter before the Gallia County Court of Common Pleas; that respondent, Ronald L. Calhoun, judge of such court, is attempting to appoint William N. Eachus as defense counsel; and that the Gallipolis Municipal Court has county-wide jurisdiction in Gallia County. It is further averred that the attorney is the City Solicitor for Gallipolis, Ohio, and that by reason of R.C.
Respondent answered and admitted the status of attorney Eachus as City Solicitor of Gallipolis and further averred that he had been selected by Forrest Jones, who had been secretly indicated for aggravated murder, and that no proceedings were conducted in the Municipal Court with respect to such offense. Other averments were made respecting County Court judges and village solicitors representing criminal defendants, either as appointed or retained counsel, in the Gallia County Court of Common Pleas. A cross-complaint was filed by respondent, which, in effect, seeks to have this court consider "whether or not a judge, county prosecutor, city solicitor, village solicitor or similar officer is prohibited from representing criminal defendants." An answer to the cross-complaint was filed by relator, wherein the representation of criminal defendants by attorneys holding public offices was, for want of knowledge, denied.1
The prerequisites for the issuance of a writ of prohibition are set forth in the first paragraph of the syllabus in *Page 242 State, ex rel. McKee, v Cooper (1974),
"The conditions which must exist to support the issuance of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy in the ordinary course of the law. (State, exrel. Lehmann, v. Cmich,
No contention is made, nor could a valid contention be made, in our view, that the appointment of counsel for an indigent defendant is other than the exercise of judicial power. Clearly, it is in no sense a mere ministerial duty inasmuch as the questions of whether a defendant is entitled to appointed counsel and, if so, whether a particular person should be appointed require both a factual determination and the exercise of discretion. See State v. Tymcio (1975),
Neither do we perceive any impediment to prohibition relief by reason of the existence of an adequate remedy at law. Such relief would necessarily be in the same court in which the appointment would be made and the payment of counsel authorized. Thus, it would, in effect, constitute a collateral attack upon the order of appointment and the payment. Likewise, no remedy by way of an appeal, in which the relator could attack the appointment, exists either by statute or rule. Cf. State, exrel. McKee, v. Cooper, supra. *Page 243
The pivotal question that remains is whether the attempted appointment by respondent is unauthorized and contrary to law. Relator, for his authority, places primary reliance upon the reasoning and conclusion in 1978 Ohio Atty. Gen. Op. 2-62, No. 78-026 (Adv.), the syllabus of which provides:
"R.C.
While we are not here concerned with a village solicitor, the rationale of the opinion is pertinent. The relevant part is the following:
"* * * [T]he apparent purpose of R.C.
R.C.
"(A) Counsel appointed by the court, co-counsel appointed to assist the state public defender or a county or joint county public defender, and any public defender, county public defender, or joint county defender, or member of their offices, shall not be a partner nor employee of any prosecuting attorney nor of any city director of law, or similar officer.
"(B) No prosecuting attorney, city director of law or similar officer or their assistants and employees, and no judge or court employee shall serve on the state public defender commission, or any county or joint county public defender commission."
Such section apparently has its origin in R.C.
In Gulf Oil Corp. v. Kosydar (1975),
"In Provident Bank v. Wood (1973),
"In State, ex rel. Francis, v. Sours (1944),
"The above principle of construction was stated negatively inCarmelite Sisters, St. Rita's Home, v. Bd. of Review (1969),
Applying this criteria to R.C.
A logical and forceful reason exists why the General Assembly did not proscribe the appointment of such officers in R. C.
"* * * [The] city director of law for each municipal corporation within the territory shall prosecute all criminal cases brought before the municipal court for violations of the ordinances of the municipal corporation for which he is solicitor or director of law, or for violation of state statutes or other criminal offenses occurring within the municipal corporation for which he is a solicitor or director of law, * * *. The director of law of the city in which the court is located shall prosecute all criminal cases brought before the court arising in the unincorporated areas within the territory * * *. The city director of law shall perform the same duties, as far as they are applicable thereto, as are required of the prosecuting attorney of the county."
It necessarily follows from the above that Mr. Eachus is required to prosecute, pursuant to R. C.
We recognize that R. C.
"(A) In such a county, an indigent person shall have the right to do either of the following:
"(1) To select his own personal counsel to represent him inany proceeding included within the provisions of the resolution;
"(2) To request the court to appoint counsel to represent him in such a proceeding.
"(B) The court having jurisdiction over the proceeding shall, after determining that the person is indigent and entitled to legal representation under this section, do either of the following:
"(1) By signed journal entry recorded on its docket, enterthe name of the lawyer selected by the indigent person ascounsel of record;
"(2) Appoint counsel for the indigent person if the person has requested the court to appoint counsel and, by signed journal entry recorded on its dockets, enter the name of the lawyer appointed for the indigent person as counsel of record." (Emphasis added.)
Focusing solely upon this statute, it would appear that a defendant has an unrestricted choice as to counsel. It is apparent, however, that the General Assembly did not intend to confer an unlimited right of choice of counsel. The proscription in R. C.
While the legislative intent is not as clearly manifested with an express disqualification as that which appears to those persons enumerated in R. C.
The General Assembly is presumed to act with full knowledge of all pertinent statutes at the time a new statute *Page 247
is enacted. State, ex rel. Pugh, v. Brewster (1886),
Accordingly, since the respondent is exercising a power of appointment not authorized by law, the motion for a judgment on the pleadings and the writ of prohibition are granted.
Writ granted.
ABELE and GREY, JJ., concur.