[Until this opinion appears in the Ohio Official Reports advanc e 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 f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2020-O HIO -5483
T HE S TATE EX REL
. F ISER , J UDGE , v . K OLESAR , J UDGE
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Fiser v. Kolesar , Slip Opinion No. 2020-Ohio-5483.] Prohibition—Writ sought by county-court j udge to prevent administrative judge ofsame 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, 2 020.)
I N P ROHIBITION

.

__________________ 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. Shortl y after, respondent, Judge John Kolesar, who serves a s the court’s administrative ju dge, issued aS UPREME C OURT OF O HIO

2 judgment entry vacating Judge Fiser’s entries and forbidding pa y raises and the expenditure of court resources t hat 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 reque st competing writs of prohibition from thi s court. Judge Fiser seeks a writ to prevent Judge Kolesar from enforcing his entry; Judge Kolesar seeks a writ to prohibit Judge Fiser from enterin g future entries that infringe on his powers as administrative judge. Both judges ha ve 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 prohibiti on 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 2 020, she issued judgment entries ordering that a full-time probation officer re ceive 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 w ere to be paid out of the court’s special-projects fund. {¶ 5} Judge Kolesar is the administr ative judge of the Sandusky Count y Court and serves in the Clyde courthouse at the county’s easter n end. In February 2020, he issued a judgment entry (the “vacating entry”) orderin g 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 “wer e not presented to me and do not have my signature or my approval as Administrative j udge.” He reasoned that because Judge Fise r was not the administrative ju dge, she “lack[ed] the power to make any administra tive orders which includes hiri ng or employmentJanuary 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 wit h this court to stop Judge Kolesar from enforcing his vacating entry a nd 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 counterc laim requesting that this court issue a writ of p rohibition restraining Judge F iser from issuing “future unilateral orders” that “infring [e] on the powers specifically granted by the Rules of Superintendence to the Administrative Judge.” Judge Fiser f iled a motion for judgment on the pleadings in res ponse to Judge Kolesar’s counte rclaim.
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 e xercised judicial or quasi-judicial power, (2) the exe rcise of that power is unautho rized by law, and (3) denying the writ would result in injury for which no other adeq uate 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 o f 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 th e motion and dismiss the complaint when it determines that “no material fact ual issues exist andS UPREME C OURT OF O HIO

4 * * * 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 f actual issues exist.
III. ANALYSIS A. Judge Fiser’s request for a w rit of prohibi tion to prevent Judge Kolesar from enforcing his vacating entr y and Judge Kolesar’s motion fo r 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 va cating 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 be tween 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 ap parently never requested that the county commi ssioners appropriate the funds. Shortly after the communication, a common-pleas-cou rt judge issued an order manda ting 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 co urt, the second judge issued an order giving the commissioners the option to appropri ate the funds to the court, which the court would then give to the sheriff for the s ame purpose. Id. at ¶ 9-10. The commissioners sought a writ of prohibition prevent ing 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 b usiness.” Id. at ¶ 18.January Term, 2020

5 An order of that character “is not made in the context of a dis pute but is in the nature
of an administrative order.” Id . Second, we considered whe ther 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 admi nistrative 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 administra tion of the court’s business and concern court funds, which would tend to stamp Jud ge 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 charact erize the vacating entry. {¶ 13} Two additional factors, which we did not have occasion to consi der
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 en tries, 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 i s 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 hi s vacating entry in contempt. See R.C. 1907.18(B) (“County court judges mayS UPREME C OURT OF O HIO

6 punish contempts”). “[A] judge w ho decides to issue an order f inding 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 J udge 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 adm inistrative judge—
which is a feature of a c riminal-contempt sanction. Id

. {¶ 15} Relying on Lorain Cty. Bd. of Commrs. , Judge Kolesar argues that his contempt threat should not m atter for purposes of this cour t’s prohibition analysis. But he does not explain how he did anything other th an 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 p ay-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 mispla ced. In that case, we observed that if an order directed a board of cou nty commissioners to
release funds to a court for the court’s own business, it would be “in the nature of
an administrative order” enf orceable 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 contemp t for the purpose of compelling obedience to its terms. {¶ 17} In summary, we conclude that Judge Kolesar’s entry arose from h is 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 jurisdicti on to issue his vacating entry. {¶ 19} “If an inferior tribunal patently and unambiguously lacks jurisdiction, prohibition will lie t o prevent any future unauth orized exercise of jurisdiction and to correct the results of prior jurisdictional ly 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 unamb iguously lacks jurisdiction. State ex rel. Adams v. Gusweiler , 30 Ohio St.2d 326, 329, 285 N.E.2d 22 (1972). “Typically, a court w ill 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 target s a statutorily created tribunal , the analysis must consider whether the General Assembly empowered t he 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 Sandus ky County Court is a statutory creation with “only limited jurisdiction, and ma y 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 fro m “this court, the courts of ap peals, and the courts of common pleas, all of which o riginate” from Article IV, Secti on 1 of the Ohio
Constitution. Johnson at 54. {¶ 21} A county court has statutory ju risdiction over, among other thi ngs, violations of township resolutions, R.C. 1907.012; misdemeanors and certain aspects of felony proceedings, R.C. 1907.02(A)(1); certain park ing and trafficS UPREME C OURT OF O HIO

8 offenses, R.C. 1907.02(B) and (C); civil actions in which the s um sought for recovery does not exceed amounts prescribed by law, R.C. 1907.0 3(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—t hat 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 prov isions from the Rules of Superintendence for the Courts o f Ohio, namely, those describin g 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 “gen eral 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 vacati ng entry arose from the exercise of judicial power, compels us to deny his motion f or 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 bee n issued; or deny the request for the writ.” S.Ct.Pr ac.R. 12.04(C). This case does not depend on the resolution of factual disputes a nd further briefing would not m aterially aid our disposition of Judge Fiser’s compl aint. Under these circumstan ces, if “it appears beyond doubt” that Judge Fiser is entitled to a writ of prohibi tion, 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 prohibiti on that vacates Judge Kolesar’s vacating entry because, as we have explained, Judge Kolesar’s vacating entry arose from an exercise of judicial pow er that he patently and unambiguously lacked jur isdiction to exercise.

B. Judge Kolesar’s counterclaim for a writ of prohibition to p revent Judge Fiser from entering future entrie s that infringe on his powers as administrative judge and Judge Fiser’s motion for judgment on t he pleadings {¶ 26} Judge Kolesar’s counterclaim 1 requests a writ of prohibition restraining Judge Fiser from entering

future unilateral orders infringing on the powers specifically grante d 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 char ged to probationers or litigants in her court, or (4) to order, withou t prior approval and authorization by t he Administrative Judge, any improvements in or in relati on to the court’s facilities.

(Emphasis added.) {¶ 27} The key problem with Judge Kolesar’s request is that he does no t allege that Judge Fiser is “a bout to exercise judicial or quasi -judicial power.”

1. Judge Fiser argues in her motion for judgment on the pleadi ngs that counterclaims are not permitted under this court’s rules of practice. We do not reac h this question because Judge Kolesar’s counterclaim otherwise fails to meet the requirements for a wri t of prohibition.S UPREME C OURT OF O HIO

10 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 deni ed because trial court was not about to exercise unauthorized judicial power). Acco rdingly, his counterclaim fa ils to meet the first requirement for a wr it of prohibition. {¶ 28} Even if Judge Kolesar had allege d that Judge Fiser was poised t o 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 issuin g 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 entr y, that overrules another judge’s order and threat ens 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 pr evail 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 prohibiti on 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 inc lude Judge Fiser’s pay-raise entries. We conclude that Judge Kolesar has forfeited this claim by fail ing 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’C ONNOR , C.J., and K ENNEDY , F ISCHER , D E W INE , and S TEWART , JJ.,

concur. F RENCH , J., concurs in part and dissents in part and would grant both motions for judgment on the pleadings and would dismiss both Ju dge Fiser’s claim and Judge Kolesar’s counterclaim.
D ONNELLY , J., dissents, with an opinion.

_________________ D ONNELLY , J., dissenting. {¶ 31} The reason multijudge courts have administrative judges is to a void chaos. If all judges have author ity to issue judicial orders r elated to administrative matters, such as salary increases for staff, which this court a ppears to sanction today, then we should prepare for an avalanche of cases. {¶ 32} The parties had other options ava ilable to resolve this dispute than litigating it publicly in this cour t. Given the current impass e, the judges should establish a formal process that enables judicial colleagues to communicate and approve written administrative requests in a manner that promot es efficiency and transparency. In addition, the court could consider establishi ng a power-sharing scheme, for instance, alternatin g on an annual basis which judg e is the administrative judge. In the meantime, in order to maintain pu blic 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 jud ges should, at a minimum, demonstrate the ability to resolve disputes between th emselves. {¶ 33} I served in Cuyahoga County, as one of 34 trial-court judges si tting on the court of common pleas, ge neral division. We delegated a dministrative authority to one judge for a two-year term to promote continuit y, collegiality, and compromise and to minimize confusion. Based on my experience, administrative judges (however they are appointed—by election, seniority, or s ome other process)S UPREME C OURT OF O HIO

12 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 relat or. Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, John A. Borell, and Kevin A. Pituch, Special Assistant Prosecut ing Attorneys, for respondent.

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