Summary
In Ohio Bell Tel v. Ferguson (1980), 61 Ohio St.2d 74, 15 O.O.3d 117, 399 N.E.2d 1206, we held that a writ of prohibition was the proper remedy to challenge the authority of the state auditor and the state examiner of the Bureau of Inspection and Supervision of Public Offices to issue subpoenas because it was uncontested that respondents' actions in issuing the subpoenas were "in the exercise of a quasi-judicial power."
Summary of this case from Letohiovote.org v. BrunnerOpinion
No. 79-935
Decided January 23, 1980.
Prohibition — To prohibit action on subpoena issued by state examiner under R.C. 117.03 — Writ allowed, when — Subpoena unauthorizedly issued.
IN PROHIBITION.
Pursuant to the authority granted in R.C. 125.02, the Ohio Department of Administrative Services ("department") contracts for and superintends the telephone and telegraph system for state departments, offices, and institutions. The Ohio Bell Telephone Company, relator herein, is under contract with the state to supply these telecommunication services. In compliance with its contract, relator provides the department with monthly bills which reflect, inter alia, detailed billing information on long distance telephone calls charged to the state's system, which information reflects both the number from which the call originated and the number called.
Relator further provides the department, on a monthly basis, magnetic computer tapes designated as: equipment records, toll usage records, and WATS/FX message detail records. These tapes exclusively reflect all the information contained in the monthly bills in addition to details on WATS/FX calls. The magnetic computer tapes are used by the department in the allocation of charges for telecommunication services among the various state departments, agencies, courts, and legislative bodies. After the allocation process the department supplies to each of the various state agencies and departments a computer print-out reflecting the amount of telecommunication services charged to the agency or department. The computer print-out lists the type call, type code, numbers and charged amount allocated to each such agency and department. Each agency and department then presents the computer print-out to the Auditor of State as a voucher for the payment of the charges shown thereon.
On June 20, 1979, respondents (Thomas E. Ferguson, Auditor of State, and Don C. Soliday, State Examiner, Bureau of Inspection and Supervision of Public Offices) caused a subpoena duces tecum to issue to the relator, which subpoena requested the equipment records tape, toll usage records tape, and WATS/FX message detail records tape for the period of June 1, 1979, to June 30, 1979, inclusive. The subpoena required the aforesaid tapes to be produced by July 16, 1979. Relator has refused to comply with the subpoena duces tecum issued to it.
Relator states in its brief and it is uncontested that the tapes requested by respondents of relator have been delivered to the department pursuant to the terms of the contract between relator and the department. The department has refused to consent to relator's release of the tapes to respondents.
Relator brought this original action in prohibition in this court to prohibit the respondents from taking any further action with respect to the subpoena duces tecum.
Messrs. Crabbe, Brown, Jones, Potts Schmidt, Mr. Charles E. Brown, and Mr. Ira Owen Kane, for relator.
Mr. William J. Brown, attorney general, and Ms. Cynthia E. Wayland, for respondents.
The writ of prohibition is an extraordinary writ and is issued only in cases of necessity arising from the inadequacy of other remedies. Three conditions must exist to support the issuance of the writ: (1) the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power; (2) the exercise of such power is unauthorized by law; and (3) it will result in injury for which no other adequate remedy exists. See, e.g., State, ex rel. Bell, v. Blair (1975), 43 Ohio St.2d 95; State, ex rel. Lehmann, v. Cmich (1970), 23 Ohio St.2d 11; State, ex rel. Masterson, v. Ohio State Racing Comm. (1955), 164 Ohio St. 312.
Respondents allege that the power to issue the subpoena is by way of the statutory authority in R.C. 117.03, which grants a state examiner the power, inter alia, to issue a subpoena in an appropriate instance. Respondents fail to read that power in conjunction with the entirety of R.C. Chapter 117. R.C. 117.01 provides, in pertinent part:
"This section creates the bureau of inspection and supervision of public offices in the office of the auditor of state, which bureau shall inspect and supervise the accounts and reports of all state offices as provided in sections 117.01 to 117.19 of the Revised Code, including every state educational, benevolent, penal, and reformatory institution, public institution, and the offices of each taxing district or public institution in the state. The bureau may examine the accounts of every private institution, association, board, or corporation receiving public money for its use, and may require of them annual reports in such form as it prescribes.***"
Also relevant to this cause is R.C. 117.09, which authorizes a biennial examination by the Bureau of Inspection and Supervision of Public Offices.
R.C. 117.09(A) provides:
"The bureau of inspection and supervision of public offices shall examine each public office, department, or agency at least once every two years, except that the offices of judges of county courts shall be examined at such times as the bureau determines. On examination, inquiry shall be made into the methods, accuracy, and legality of the accounts, records, files, and reports of the office, whether the laws, ordinances, and orders pertaining to the office have been observed, and whether the requirements of the bureau have been complied with. Each examination shall cover the period beginning with the termination date of the period covered in the most recent audit."
It is uncontested that respondents' actions in issuing the subpoena in this case are in the exercise of a quasi-judicial power. State, ex rel. Robusky, v. Chicko (1967), 11 Ohio App.2d 235, reversed on other grounds (1969), 17 Ohio St.2d 1. This court has held that the R.C. 117.03 subpoena power is to be used to facilitate the comprehensive biennial examination required by R.C. 117.09, and is not to be used for "spot-check" investigations. Lindley v. Ferguson (1977), 52 Ohio St.2d 60. Respondents have never contended that the subpoena was issued pursuant to such a biennial examination. Clearly, then, respondents have usurped any power they possess under R.C. 117.03.
We are not deciding, on the facts in this case, whether respondents may, as part of their statutory authority, conduct a comprehensive biennial examination of relator. It suffices for this cause that respondents' actions in issuing the subpoena are unauthorized by law since respondent bureau is not conducting a biennial examination under R.C. 117.09.
We find the writ of prohibition to be the proper remedy to challenge the authority of the State Examiner in issuing a subpoena pursuant to R.C. 117.03. See State, ex rel. Robusky, supra.
Based on the foregoing, the writ of prohibition is allowed.
Writ allowed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, AND HOLMES, JJ., concur.
The majority properly notes that a writ of prohibition is an extraordinary writ and should issue only in cases of extreme necessity arising from the inadequacy of other remedies.
In the instant cause, a declaratory judgment action or an injunction, or both, are available adequate remedies, which should deny the issuance of a writ.
This court has firmly established that it will refuse to issue the high prerogative writ of prohibition in any instance where there exists a plain and adequate remedy in the ordinary course of the law. State, ex rel. Dormody, v. McClure (1977), 50 Ohio St.2d 335; State, ex rel. Dayton, v. Kerns (1977), 49 Ohio St.2d 295; Transairco v. Common Pleas Court (1976), 45 Ohio St.2d 27; State, ex rel. Crebs, v. Court of Common Pleas (1974), 38 Ohio St.2d 51; State, ex rel. Peto, v. Thomas (1970), 24 Ohio St.2d 38.
Adequate remedies "at law" which deny the issuance of a writ of prohibition include equitable remedies such as injunction. State, ex rel. Timken Roller Bearing Co., v. Indus. Comm. (1961), 172 Ohio St. 187.
The majority relies on the rationale of Lindley v. Ferguson (1977), 52 Ohio St.2d 60, for the allowance of the writ in the instant cause, but fails to note that the remedies employed in that cause were declaratory judgment and injunction.
Based on the foregoing, the issuance of the writ of prohibition should be denied, because of the availability of an adequate remedy at law, such as declaratory judgment or injunction.