IN THE SUPREME COURT OF OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO Randy Shepherd, vs. Relator, Case No Original Action in Mandamus Judge James Henson, Respondent RESPONDENT JUDGE JAMES HENSON'S MOTION TO STRIKE RELATOR'S COMBINED MOTION FOR DEFAULT JUDGMENT, MOTION TO STRIKE AND MOTION FOR SANCTIONS Randy Shepherd, pro se Mark Landes ( ) 3558 Alvin Road Shelby, Ohio Andrew N. Yosowitz ( ) Tel: Isaac, Brant, Ledman and Teetor, LLP 250 East Broad Street, Suite 900 Columbus, Ohio Te1: ;Fax: Attorneys for Respondent 1

2 MEMORANDUM IN SUPPORT After losing his claims at every state court level, Relator filed this action seeking another form of appeal for his otherwise unsuccessful claims. For the reasons provided below, the Court should strike Relator's hybrid Motion for Default Judgment, Motion to Strike and Motion for Sanctions. 1. LAW AND ANALYSIS A. Relator has no good faith basis for a default judgment motion. By definition a default judgment can only occur if a defendant or respondent has failed to plead. See Civ. R. 55. In this case, Relator filed a Writ of Mandamus. Respondent timely filed an Answer. As such, Relator is not entitled to default judgment regardless of whether Relator believes that the undersigned counsel are proper for this case. Relator's motion for default is frivolous and should be stricken. B. Relator has no good faith basis to strike Respondent's Answer or request sanctions and, as such, his motions should be stricken. Relator's Motion to Strike and Motion for Sanctions should be stricken because Relator does not-and could not-dispute that Respondent timely filed an Answer to the Writ of Mandamus. Relator's main objection seems to be based on the choice of counsel for Respondent.' Relator does not claim any unfair prejudice to his case by the choice of counsel. This situation is similar to a plaintiff objecting to an opposing party's retention of counsel under a simple retention agreement. Relator objects to the manner in which opposing counsel has been retained and the possible source of the payments that opposing counsel may receive for representation in a matter. Yet, Relator has failed to demonstrate how either these circumstances prejudice his case in any way. ' In any event, Relator's objection has little bearing on whether Relator is entitled to the extraordinary remedy of mandamus. 2

3 Relator asserts, generally, that IBLT cannot represent Respondent. As a Richland County Common Pleas Court judge, Respondent is a Richland County employee. Relator suggests that IBLT's representation of Respondent is not authorized because only the county prosecutor can represent a county employee. Relator does not cite any statutes, but appears to be relying on R.C R.C authorizes the board of county commissioners to "employ" legal counsel to assist a prosecuting attorney when application is made to the court of common pleas to do so. But R.C does not define the word "employ." Employ means "to hire." By this definition, Respondent never "employed" IBLT to represent him. The County Risk Sharing Authority (CORSA), a statutory self-insurance pool authorized by Chapter 2744 of the Ohio Revised Code, hired IBLT to represent Respondent in this case, pursuant to that county's membership in the risk sharing pool operated by CORSA. IBLT represents Richland County (and its employees) pursuant to an agreement between Richland County and CORSA through which CORSA is given the right to employ counsel to defend counties that participate in the statutory risk sharing pool. Importantly, Relator ignores this distinction when attacking the propriety of IBLT's representation of Respondent. The county entities and officials do nothing to "employ" IBLT. The counties involved do not choose IBLT. IBLT receives none of its attomeys' fees directly from member counties. No health or retirement benefits come with representation of the counties. CORSA pays all of IBLT's attorneys' fees. As such, Relator lacks evidence to show that the counties employ IBLT. Because Riehlzaid Count-y, does not emplov IBLT, it does not need to apply for authorization under R.C and (A) to employ outside counsel in this case. R.C and (A) apply only when the county board of commissioners or another county 3

4 official seek to hire and pay private counsel, something which never occurred here. As a result, the Court should deny Relator's Motion to Strike and Motion for Sanctions on this basis alone. R.C and do not prevent private counsel from being employed to represent county officials. Rather R.C provides that: [t]he prosecuting attorney shall be the legal adviser of the board of county commissioners, board of elections, and all other county officers and boards, including all tax-supported public libraries, and any of them may require written opinions or instructions from the prosecuting attorney in matters connected with their official duties. The prosecuting attorney shall prosecute and defend all suits and actions which any such officer or board directs or to which it is a party, and no county officer may employ any other counsel or attorney at the expense of the county; except as provided in section of the Revised Code. R.C (A) (emphasis added). Thus, private counsel may be hired to represent a county official, provided that such representation is not undertaken at the expense of the county. In the alternative, an attotney may be employed (and represent) at the expense of the county if the procedures of R.C are followed, which requires proper application to the court of common pleas made by the county prosecuting attorney. R.C and prevent county officials from hiring private counsel for whatever purpose and paying private counsel fees for legal work performed with county funds. Presumably, these statutes prevent a board of county commissioners from being presented with a bill for attorrneys' fees for services procured by a county official or employee for a purpose that the county does not approve or without knowledge of the lawyer's billing practices. The statutes are not designed, however, to prevent the county from participating in a statutory risk sharing pool that hires and pays attorneys with non-county funds to defend the interests of county officials. If the statutes were designed to prevent a statutory risk sharing pool from hiring and paying attorneys to defend county officials in civil claims, R.C , which authorizes the operation of a joint self-insurance pool like CORSA, would be rendered moot. A joint self- 4

5 insurance pool operating pursuant to R.C must be permitted to retain counsel in order to provide defense to member counties. Because Richland County never employed IBLT, it never needed to apply for authorization to hire IBLT under R.C No county expenses were used to hire IBLT, which makes R.C inapplicable. Rather, IBLT was hired and paid by CORSA to defend Respondent pursuant to the coverage agreement between CORSA and Richland County. This agreement is authorized by R.C. 2744,081 and obligates CORSA to pay for the defense of Relaotor's alleged claims against Respondent, including the employment of attorneys to represent Respondent's interests. As a result, Relator's Motion to Strike and Motion for Sanctions are improper and should be stricken. B. Relator lacks standing to seek disqualification of IBLT. Relator's motions should also be stricken because he lacks standing to bring the motions. Although, Relator does not title his motion as one for disqualification, it could be interpreted as such. If so, Relator lacks standing to seek disqualification of IBLT, pursuant to R.C and Relator sets forth no injury that is specifically attributable to what he alleges is an improper representation. Relator lacks standing to seek disqualification, absent any injury to Relator resulting from IBLT's representation of Respondent that is distinct from those that he has claimed in his Writ of Mandamus. See White Family Cos. v. Dayton Title Agency, Inc., 284 B.R. 238, 245 (S.D. Ohio 2002) (concluding that movant did not have standing to seek disqualification of an attorney when he had not demonstrated an injury in fact that resulted from that attorney's.,,present-ation- of an opposin-g-party). Witheu± standing, the Court shauld strike Relator's motions. For the foregoing reasons, Relator's hybrid motion should be stricken. 5

6 Respectfully submitted, CERTIFICATE OF SERVICE ^^b ) k Landes ml(^a,isda^cbra.com Andrew N. Yosowitz ( ) anygisaacbrant.com Isaac, Brant, Ledman and Teetor, LLP 250 E. Broad Street, Suite 900 Columbus, Ohio Tel: (614) ; Fax (614) Attorneys for Respondent Judge James Henson The undersigned hereby certifies that a true copy of the foregoing was delivered via U.S. Mail, postage prepaid, on this 17th day of November, 2011, upon the following: Randy Shepherd 3558 Alvin Road Shelby, Ohio Relator, pro se 6