[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Fiser v. Kolesar, Slip Opinion No. 2020-Ohio-5483.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2020-OHIO-5483

THE STATE EX REL. FISER, JUDGE, v. KOLESAR, JUDGE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Fiser v. Kolesar, Slip Opinion No. 

2020-Ohio-5483.] 

Prohibition—Writ sought by county-court judge to prevent administrative judge of 

same court from enforcing entry vacating pay raises awarded by countycourt judge—Administrative judge of county court patently and 

unambiguously lacked jurisdiction to issue entry vacating pay raises—Writ 

granted.

(No. 2020-0320—Submitted October 27, 2020—Decided December 3, 2020.) 

IN PROHIBITION. 

__________________ 

Per Curiam.

{¶ 1} This original action involves a dispute between two judges who sit on 

the Sandusky County Court. Relator, Judge Mary Elizabeth Fiser, issued judgment 

entries granting pay raises to certain court personnel. Shortly after, respondent, 

Judge John Kolesar, who serves as the court’s administrative judge, issued a 
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judgment entry vacating Judge Fiser’s entries and forbidding pay raises and the 

expenditure of court resources that did not have his approval. To compel obedience 

to his entry, Judge Kolesar stated in the entry that anyone who violated it risked 

being held in contempt. 

{¶ 2} The parties now request competing writs of prohibition from this 

court. Judge Fiser seeks a writ to prevent Judge Kolesar from enforcing his entry; 

Judge Kolesar seeks a writ to prohibit Judge Fiser from entering future entries that 

infringe on his powers as administrative judge. Both judges have filed motions for 

judgment on the pleadings. 

{¶ 3} For the reasons that follow, we deny Judge Kolesar’s motion for

judgment on the pleadings, grant a peremptory writ of prohibition that vacates 

Judge Kolesar’s vacating entry, grant Judge Fiser’s motion for judgment on the 

pleadings, and dismiss Judge Kolesar’s counterclaim. 

I. FACTUAL BACKGROUND 

{¶ 4} Judge Fiser sits on the Sandusky County Court and serves in the

Woodville courthouse at the county’s western end. In January 2020, she issued 

judgment entries ordering that a full-time probation officer receive a raise of one 

dollar an hour and that a part-time probation officer receive a raise of 50 cents an 

hour (collectively, the “pay-raise entries”). The pay raises were to be paid out of 

the court’s special-projects fund. 

{¶ 5} Judge Kolesar is the administrative judge of the Sandusky County 

Court and serves in the Clyde courthouse at the county’s eastern end. In February 

2020, he issued a judgment entry (the “vacating entry”) ordering that Judge Fiser’s 

pay-raise entries be “stricken and vacated as without authority.” Judge Kolesar 

explained in his vacating entry that Judge Fiser’s entries “were not presented to me 

and do not have my signature or my approval as Administrative judge.” He 

reasoned that because Judge Fiser was not the administrative judge, she “lack[ed] 

the power to make any administrative orders which includes hiring or employment 
January Term, 2020 

3

decisions.” He further announced that “[a]ny violation of [the vacating entry] may 

be enforced through the court’s power of contempt.” As support for his order, 

Judge Kolesar cited Sup.R. 4.01 and Montgomery Cty. Bd. of Commrs. v. Hensley, 

2d Dist. Montgomery No. 19754, 2003-Ohio-5730. 

{¶ 6} In March 2020, Judge Fiser filed a complaint in prohibition with this 

court to stop Judge Kolesar from enforcing his vacating entry and to “correct[] the 

results flowing from the issuance of that” entry. In response, Judge Kolesar filed a 

motion for judgment on the pleadings, an answer, and a counterclaim requesting 

that this court issue a writ of prohibition restraining Judge Fiser from issuing “future 

unilateral orders” that “infring[e] on the powers specifically granted by the Rules 

of Superintendence to the Administrative Judge.” Judge Fiser filed a motion for 

judgment on the pleadings in response to Judge Kolesar’s counterclaim. 

II. STANDARD OF REVIEW

{¶ 7} To demonstrate entitlement to a writ of prohibition, each judge must 

establish that “(1) [his or her adversary] is about to or has exercised judicial or 

quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) 

denying the writ would result in injury for which no other adequate remedy exists 

in the ordinary course of law.” State ex rel. Balas-Bratton v. Husted, 138 Ohio 

St.3d 527, 2014-Ohio-1406, 8 N.E.3d 933, ¶ 15. “The second and third elements 

may be satisfied by a showing that the lack of jurisdiction is ‘patent and 

unambiguous.’ ” State ex rel. Lorain Cty. Bd. of Commrs. v. Lorain Cty. Court of 

Common Pleas, 143 Ohio St.3d 522, 2015-Ohio-3704, 39 N.E.3d 1245, ¶ 16, 

quoting Chesapeake Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204, 

2013-Ohio-224, 985 N.E.2d 480, ¶ 11. 

{¶ 8} A motion for judgment on the pleadings “permits consideration of the 

complaint and answer.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio 

St.3d 565, 569, 664 N.E.2d 931 (1996). A court should grant the motion and 

dismiss the complaint when it determines that “no material factual issues exist and 
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* * * the movant is entitled to judgment as a matter of law.” Id. at 570. The 

questions presented in this case are purely legal—no material factual issues exist. 

III. ANALYSIS

A. Judge Fiser’s request for a writ of prohibition to prevent Judge Kolesar 

from enforcing his vacating entry and Judge Kolesar’s motion for judgment 

on the pleadings

1. Whether Judge Kolesar exercised judicial power

{¶ 9} Judge Fiser argues that Judge Kolesar exercised judicial power by 

attempting to resolve an informal dispute and by threatening to hold violators of his 

vacating entry in contempt. Judge Kolesar counters that his vacating entry did not 

arise from the exercise of judicial power because, he says, the entry addressed a 

matter internal to the court rather than resolving a dispute between litigants before 

the court. 

{¶ 10} Both judges rely on Lorain Cty. Bd. of Commrs., 143 Ohio St.3d 522, 

2015-Ohio-3704, 39 N.E.3d 1245, to support their arguments. In that case, the 

county sheriff communicated with the county commissioners about the costs of 

implementing certain security measures; however, the sheriff apparently never 

requested that the county commissioners appropriate the funds. Shortly after the 

communication, a common-pleas-court judge issued an order mandating that the 

county commissioners make the appropriation. Id. at ¶ 5-7. After that judge was 

replaced by another judge as the administrative judge of the court, the second judge 

issued an order giving the commissioners the option to appropriate the funds to the 

court, which the court would then give to the sheriff for the same purpose. Id. at 

¶ 9-10. The commissioners sought a writ of prohibition preventing enforcement of 

the orders. 

{¶ 11} We examined two factors in determining whether the judges had 

exercised judicial rather than administrative power. First, we considered whether 

the orders facilitated the administration of the court’s “own business.” Id. at ¶ 18. 
January Term, 2020 

5

An order of that character “is not made in the context of a dispute but is in the nature 

of an administrative order.” Id. Second, we considered whether the appropriation 

was “to be made of the court’s funds.” Id. at ¶ 19. We determined that both factors 

weighed against a conclusion that the judges had exercised administrative power. 

The orders were not made for the administration of the court’s business; rather, they 

were attempts to resolve an informal dispute among the sheriff, the county 

commissioners, and the court. Id. at ¶ 20. And the appropriation was not one that 

would have come from the court’s funds. Id. at ¶ 19. 

{¶ 12} We do not regard Lorain Cty. Bd. of Commrs. as dispositive here. 

True, the bounds of this dispute are confined to the administration of the court’s 

business and concern court funds, which would tend to stamp Judge Kolesar’s entry 

with an administrative character. But his entry was not in the nature of a funding 

order, as was the case in Lorain Cty. Bd. of Commrs.; instead, it was unquestionably 

an effort to resolve a dispute between himself and Judge Fiser, which would tend 

to stamp his entry with a judicial character. Something more, then, must be 

considered in order to characterize the vacating entry. 

{¶ 13} Two additional factors, which we did not have occasion to consider 

in Lorain Cty. Bd. of Commrs., bear on the analysis and favor a conclusion that 

Judge Kolesar’s entry arose from the exercise of judicial power. First, Judge 

Kolesar exercised judicial review of Judge Fiser’s pay-raise entries, declaring that 

she lacked the authority to issue them after applying his view of the controlling law 

to the material facts. That type of act closely resembles the exercise of a core 

judicial power. See Fairview v. Giffee, 73 Ohio St. 183, 190, 76 N.E. 865 (1905) 

(“It is indisputable that it is a judicial function to hear and determine a controversy 

between adverse parties, to ascertain the facts, and, applying the law to the facts, to 

render a final judgment”). 

{¶ 14} Second, Judge Kolesar threatened to hold anyone who violated his 

vacating entry in contempt. See R.C. 1907.18(B) (“County court judges may 
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punish contempts”). “[A] judge who decides to issue an order finding a person in 

contempt is exercising judicial power.” State ex rel. Gilligan v. Hoddinott, 36 Ohio 

St.2d 127, 130, 304 N.E.2d 382 (1973). We recognize that there has been no 

contempt finding in this case, meaning that the statement in Gilligan does not 

directly apply. Nevertheless, we cannot ignore the fact that Judge Kolesar issued 

his threat in an attempt “to compel obedience to a court order,” which is a feature 

of a civil-contempt sanction, State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 555, 

740 N.E.2d 265 (2001). Nor can we ignore the threat’s attempt “to vindicate the 

authority of the court”—in particular, the authority of the administrative judge—

which is a feature of a criminal-contempt sanction. Id. 

{¶ 15} Relying on Lorain Cty. Bd. of Commrs., Judge Kolesar argues that 

his contempt threat should not matter for purposes of this court’s prohibition 

analysis. But he does not explain how he did anything other than engage in the 

exercise of judicial power when he applied the law to the facts of his dispute with 

Judge Fiser, which culminated in his vacatur of Judge Fiser’s pay-raise entries. See 

Fairview at 190. 

{¶ 16} In any event, Judge Kolesar’s reliance on Lorain Cty. Bd. of 

Commrs., 143 Ohio St.3d 522, 2015-Ohio-3704, 39 N.E.3d 1245, is misplaced. In 

that case, we observed that if an order directed a board of county commissioners to 

release funds to a court for the court’s own business, it would be “in the nature of 

an administrative order” enforceable through contempt. Id. at ¶ 18. But here, Judge 

Kolesar did not issue a funding order. And even assuming that he did, this court 

did not say in Lorain Cty. Bd. of Commrs. that a funding order retains its 

administrative character when it includes the threat of contempt for the purpose of 

compelling obedience to its terms. 

{¶ 17} In summary, we conclude that Judge Kolesar’s entry arose from his 

exercise of judicial power. 
January Term, 2020 

7

2. Whether Judge Kolesar patently and unambiguously lacked jurisdiction to 

vacate Judge Fiser’s pay-raise entries

{¶ 18} We next consider whether Judge Kolesar patently and 

unambiguously lacked jurisdiction to issue his vacating entry. 

{¶ 19} “If an inferior tribunal patently and unambiguously lacks 

jurisdiction, prohibition will lie to prevent any future unauthorized exercise of 

jurisdiction and to correct the results of prior jurisdictionally unauthorized actions.” 

State ex rel. Baker v. State Personnel Bd. of Rev., 85 Ohio St.3d 640, 642, 710 

N.E.2d 706 (1999). A court’s “basic statutory jurisdiction to proceed in the case” 

will generally defeat a claim that the court patently and unambiguously lacks 

jurisdiction. State ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326, 329, 285 N.E.2d 

22 (1972). “Typically, a court will deny relief in prohibition when a respondent 

judge has general subject-matter jurisdiction and will deem any error by the judge 

to be an error in the exercise of jurisdiction.” State ex rel. Sponaugle v. Hein, 153 

Ohio St.3d 560, 2018-Ohio-3155, 108 N.E.3d 1089, ¶ 24. 

{¶ 20} When a prohibition claim targets a statutorily created tribunal, the 

analysis must consider whether the General Assembly empowered the tribunal to 

proceed. State ex rel. Natalina Food Co. v. Ohio Civ. Rights Comm., 55 Ohio St.3d 

98, 100, 562 N.E.2d 1383 (1990). As a county court, the Sandusky County Court 

is a statutory creation with “only limited jurisdiction, and may exercise only such 

powers as are directly conferred by legislative action.” State ex rel. Johnson v. 

Perry Cty. Court, 25 Ohio St.3d 53, 54, 495 N.E.2d 16 (1986). This feature 

distinguishes a county court from “this court, the courts of appeals, and the courts 

of common pleas, all of which originate” from Article IV, Section 1 of the Ohio 

Constitution. Johnson at 54. 

{¶ 21} A county court has statutory jurisdiction over, among other things, 

violations of township resolutions, R.C. 1907.012; misdemeanors and certain 

aspects of felony proceedings, R.C. 1907.02(A)(1); certain parking and traffic 
SUPREME COURT OF OHIO

 8

offenses, R.C. 1907.02(B) and (C); civil actions in which the sum sought for 

recovery does not exceed amounts prescribed by law, R.C. 1907.03(A); and 

contempts, R.C. 1907.18(B). See also R.C. 1907.031 (further specifying the scope 

of a county court’s jurisdiction). 

{¶ 22} Despite these provisions, Judge Kolesar cites no statutory 

authority—and we have found none—that confers jurisdiction on a county-court 

judge to exercise judicial review of another county-court judge’s order and declare 

it ultra vires. What Judge Kolesar does cite is a list of provisions from the Rules of 

Superintendence for the Courts of Ohio, namely, those describing the powers of an 

administrative judge. The problem with this argument, however, is that those rules 

do not derive from a legislative enactment. See Johnson at 54. Rather, the rules 

were adopted by this court as an exercise of its powers of “general superintendence 

over all courts in the state.” Ohio Constitution, Article IV, Section 5(A)(1); Sup.R. 

1(B). 

{¶ 23} In summary, we conclude that Judge Kolesar patently and 

unambiguously lacked jurisdiction to issue his vacating entry. This conclusion, 

coupled with our earlier conclusion that Judge Kolesar’s vacating entry arose from 

the exercise of judicial power, compels us to deny his motion for judgment on the 

pleadings. 

3. Whether Judge Fiser is entitled to a peremptory writ of prohibition

{¶ 24} At this juncture, we must either “dismiss the case; issue an 

alternative or a peremptory writ, if a writ has not already been issued; or deny the 

request for the writ.” S.Ct.Prac.R. 12.04(C). This case does not depend on the 

resolution of factual disputes and further briefing would not materially aid our 

disposition of Judge Fiser’s complaint. Under these circumstances, if “it appears 

beyond doubt” that Judge Fiser is entitled to a writ of prohibition, a peremptory 

writ should issue. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio 

St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 14; see State ex rel. Richland Cty. 
January Term, 2020 

9

Children Servs. v. Richland Cty. Court of Common Pleas, 152 Ohio St.3d 421, 

2017-Ohio-9160, 97 N.E.3d 429, ¶ 20-21. 

{¶ 25} Applying this standard, we grant a peremptory writ of prohibition 

that vacates Judge Kolesar’s vacating entry because, as we have explained, Judge 

Kolesar’s vacating entry arose from an exercise of judicial power that he patently 

and unambiguously lacked jurisdiction to exercise. 

B. Judge Kolesar’s counterclaim for a writ of prohibition to prevent Judge 

Fiser from entering future entries that infringe on his powers as 

administrative judge and Judge Fiser’s motion for judgment on the 

pleadings

{¶ 26} Judge Kolesar’s counterclaim1

 requests a writ of prohibition 

restraining Judge Fiser from entering 

future unilateral orders infringing on the powers specifically granted 

by the Rules of Superintendence to the Administrative Judge, 

including but not limited to all future unilateral orders purporting (1) 

to create or fill personnel positions, or (2) to change the job

descriptions of those positions, or (3) to change the fees charged to 

probationers or litigants in her court, or (4) to order, without prior 

approval and authorization by the Administrative Judge, any 

improvements in or in relation to the court’s facilities. 

(Emphasis added.) 

{¶ 27} The key problem with Judge Kolesar’s request is that he does not 

allege that Judge Fiser is “about to exercise judicial or quasi-judicial power.” 

 

1. Judge Fiser argues in her motion for judgment on the pleadings that counterclaims are not 

permitted under this court’s rules of practice. We do not reach this question because Judge Kolesar’s 

counterclaim otherwise fails to meet the requirements for a writ of prohibition. 
SUPREME COURT OF OHIO

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Balas-Bratton, 138 Ohio St.3d 527, 2014-Ohio-1406, 8 N.E.3d 933, at ¶ 19. 

Indeed, he does not allege that Judge Fiser is about to take any action at all, let 

alone an action that Judge Kolesar seeks to prohibit. See State ex rel. Stark v. 

Cuyahoga Cty. Court of Common Pleas, 32 Ohio St.3d 440, 513 N.E.2d 1347 

(1987) (writ of prohibition denied because trial court was not about to exercise 

unauthorized judicial power). Accordingly, his counterclaim fails to meet the first 

requirement for a writ of prohibition. 

{¶ 28} Even if Judge Kolesar had alleged that Judge Fiser was poised to 

issue the orders that he seeks to restrain,2

 Judge Kolesar would still have to show 

that the orders would arise from the exercise of judicial power. But Judge Kolesar 

concedes that he is seeking to restrain Judge Fiser from issuing administrative

rather than judicial orders. And he does not explain how the issuance of a purely 

administrative order (as opposed to one, like his vacating entry, that overrules 

another judge’s order and threatens contempt) could arise from the exercise of 

judicial power. It follows that because Judge Kolesar has not alleged the exercise 

of judicial power, he cannot prevail on his counterclaim. 

{¶ 29} In summary, we grant Judge Fiser’s motion for judgment on the 

pleadings and dismiss Judge Kolesar’s counterclaim. 

IV. CONCLUSION

{¶ 30} For the foregoing reasons, we deny Judge Kolesar’s motion for 

judgment on the pleadings, grant a peremptory writ of prohibition that vacates 

Judge Kolesar’s vacating entry, grant Judge Fiser’s motion for judgment on the 

pleadings, and dismiss Judge Kolesar’s counterclaim. 

Judgment accordingly. 

 

2. In his memorandum in opposition to Judge Fiser’s motion for judgment on the pleadings, Judge 

Kolesar attempts to expand the scope of his counterclaim to include Judge Fiser’s pay-raise entries. 

We conclude that Judge Kolesar has forfeited this claim by failing to raise it earlier. See State ex 

rel. R.W. Sidley, Inc. v. Crawford, 100 Ohio St.3d 113, 2003-Ohio-5101, 796 N.E.2d 929, ¶ 32. 
January Term, 2020 

11 

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, and STEWART, JJ., 

concur. 

FRENCH, J., concurs in part and dissents in part and would grant both

motions for judgment on the pleadings and would dismiss both Judge Fiser’s claim 

and Judge Kolesar’s counterclaim. 

DONNELLY, J., dissents, with an opinion. 

_________________ 

DONNELLY, J., dissenting.

{¶ 31} The reason multijudge courts have administrative judges is to avoid 

chaos. If all judges have authority to issue judicial orders related to administrative 

matters, such as salary increases for staff, which this court appears to sanction 

today, then we should prepare for an avalanche of cases. 

{¶ 32} The parties had other options available to resolve this dispute than 

litigating it publicly in this court. Given the current impasse, the judges should 

establish a formal process that enables judicial colleagues to communicate and 

approve written administrative requests in a manner that promotes efficiency and 

transparency. In addition, the court could consider establishing a power-sharing 

scheme, for instance, alternating on an annual basis which judge is the 

administrative judge. In the meantime, in order to maintain public confidence, the 

judges need to resolve this dispute—that’s what judges do. The public trusts judges 

to competently resolve disputes between parties; those same judges should, at a 

minimum, demonstrate the ability to resolve disputes between themselves. 

{¶ 33} I served in Cuyahoga County, as one of 34 trial-court judges sitting 

on the court of common pleas, general division. We delegated administrative 

authority to one judge for a two-year term to promote continuity, collegiality, and 

compromise and to minimize confusion. Based on my experience, administrative 

judges (however they are appointed—by election, seniority, or some other process) 
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have the authority to address a court’s administrative issues. Other judges do not 

and should not. Accordingly, I dissent. 

_________________ 

 Mayle, L.L.C., Andrew R. Mayle, and Ronald J. Mayle, for relator.

 Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, 

John A. Borell, and Kevin A. Pituch, Special Assistant Prosecuting Attorneys, for 

respondent. 

_________________