Summary
In Halloran, the nature of the fee structure and the challenge presented concerning compensation dictated that if, in fact, an abuse of discretion was committed, it was certainly not committed by the city treasurer who had a ministerial duty to draft a warrant in the amount approved by the trial judge.
Summary of this case from State, ex Rel. Marco v. JaffeOpinion
No. 84-153
Decided December 28, 1984.
Attorneys at law — Mandamus to compel payment of attorney fees for indigent representation — Writ denied, when.
APPEAL from the Court of Appeals for Montgomery County.
This is an appeal from the denial of a writ of mandamus by the court of appeals.
On November 26, 1982, appellant, Dennis E. Halloran, was appointed by the Dayton Municipal Court as counsel for an indigent charged with two misdemeanors. Pursuant to R.C. 2941.51, a fee schedule had been devised for assigned counsel. It provided, inter alia, for payments of $30 per hour for in-court time and $25 per hour for out-of-court time. Appellant devoted nine and one-half hours to his defense of the indigent and submitted to the court an application for payment of $237.50. The court denied payment on the ground that "One Hundred Dollars was all that two misdemeanor cases were worth."
R.C. 2941.51(B) reads as follows:
"The board of county commissioners shall establish a schedule of fees by case or on an hourly basis to be paid by the county for legal services provided by appointed counsel. Prior to establishing such schedule, the board of county commissioners shall request the bar association or associations of the county to submit a proposed schedule. Such schedule shall be subject to the review, amendment, and approval of the board."
The appellee, Mary Ann Zapatony, Treasurer of the city of Dayton, sent appellant a warrant for $100, which appellant returned as constituting an insufficient payment. Further efforts to recover the fee proved fruitless. Appellant then filed an original action in mandamus in the Court of Appeals for Montgomery County against the appellee, as Treasurer of the city of Dayton, to compel payment of the requested $237.50.
The court of appeals denied the writ on the basis that "[m]andamus does not lie for an unliquidated, indefinite or disputed claim."
The cause is now before this court on an appeal as a matter of right.
"`On an appeal as a matter of right from a judgment of the Court of Appeals in an action for an extraordinary writ, the Supreme Court will review the judgment as if the action had been originally filed in this court.'" Bobb v. Marchant (1984), 14 Ohio St.3d 1, 2 at fn. 1; State, ex rel. Taylor, v. Glasser (1977), 50 Ohio St.2d 165, 166-167 [4 O.O.3d 367].
Mr. Dennis E. Halloran, pro se. Mr. Thomas G. Petkewitz, city attorney, and Mr. J. Anthony Sawyer, for appellee.
"In order to grant a writ of mandamus, the court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law." State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42 [15 O.O.3d 53], paragraph one of the syllabus.
Under Section 83 of the Charter of the city of Dayton, "* * * the City Treasurer shall * * * disburse all public money * * * coming into his hands as City Treasurer, in pursuance of such regulations as may be prescribed by the authorities having lawful control over such funds." Accord R.C. 733.44. The authority "having lawful control over such funds" is, of course, the court. R.C. 2941.51. It is implicit from Section 83 of Dayton's Charter and R.C. 733.44 that the city treasurer cannot issue a warrant in the absence of a valid order by the court to do so.
In pertinent part, R.C. 733.44 states that "funds shall be disbursed by the treasurer on the order of any person authorized by law or ordinance to issue orders therefor."
In State, ex rel. Reynoldsburg, v. Banks (1974), 37 Ohio St.2d 56 [66 O.O.2d 159], we held that where authorization is clear, the payment of an account becomes a ministerial duty and a city treasurer can be compelled through mandamus to issue a warrant. Since the authorization by the court in this case permitted payment of only $100, the city treasurer was not under a "clear legal duty" to issue the warrant in excess of that amount.
In light of the foregoing, we do not reach the merit issue of whether the appellant was entitled to the full amount he requested in fees.
We note that in the recent decision of State, ex rel. Wood, v. Christiansen (1984), 14 Ohio St.3d 27, we allowed a writ of mandamus requiring compensation of an attorney appointed to represent an indigent defendant. In that case, the judge who denied payment of the fee was joined as a party. We basically found that R.C. 2941.51 imposed on him a clear legal duty to approve the requested remuneration. In the instant action, however, only the city treasurer was named as a party. Consequently, we must hold that under the facts herein, the treasurer was under no obligation to issue a warrant for $237.50 without authorization by the court to do so. Therefore, the writ is denied.
Writ denied.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.