[Cite as State ex rel. Whitehead v. Sandusky Cty. Bd. of Commrs., 133 Ohio St.3d 561, 2012-

Ohio-4837.] 

THE STATE EX REL. WHITEHEAD ET AL., APPELLANTS, v. SANDUSKY COUNTY 

BOARD OF COMMISSIONERS ET AL., APPELLEES. 

[Cite as State ex rel. Whitehead v. Sandusky Cty. Bd. of Commrs., 

133 Ohio St.3d 561, 2012-Ohio-4837.] 

Judicial offices—Legislative appointments unconstitutional—One-year term 

unconstitutional—Legislative creation and abolishment of courts—

Severability of legislation—2012 Am.Sub.H.B. No. 509 unconstitutional 

insofar as it affects Sandusky County Court—Writ of mandamus to 

conduct election. 

(No. 2012-1666—Submitted October 16, 2012—Decided October 18, 2012.) 

APPEAL from the Court of Appeals for Sandusky County, 

No. S-12-022, 2012-Ohio-4484. 

__________________ 

Per Curiam.

{¶ 1} This is an appeal from a judgment granting a writ of mandamus to 

compel appellees, the Sandusky County Board of Commissioners and the 

Sandusky County Board of Elections, to hold a special election before January 1, 

2013, to elect a judge for the newly created Sandusky Municipal Court, for a oneyear term to commence on that date and with an election for a full six-year term to 

be held in November 2013. Because the court of appeals erred in granting the 

writ of mandamus to compel the special election, we reverse the judgment of the 

court of appeals in that regard and grant a writ of mandamus to compel the board 

of elections to accept the filed petitions and conduct the November 6, 2012 

election for the judges of the Sandusky County Court. We affirm the judgment of 

the court of appeals insofar as the court held that a portion of the pertinent 

legislation is unconstitutional, but hold that the unconstitutional portion of the 
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2 

statute may not be properly severed. We also affirm the judgment of the court of 

appeals that appellants are not entitled to a writ of prohibition and that appellants 

are not entitled to an award of attorney fees. 

Facts 

{¶ 2} The Sandusky County Court comprises two districts, which are 

referred to as Sandusky County Court District No. 1, based in Clyde, and 

Sandusky County Court District No. 2, based in Woodville.1 

http://www.sandusky-county.org/Clerk/County%20Courts. These districts have 

part-time judges, R.C. 1907.11(A), with Judge John P. Kolesar serving in District 

No. 1 and Judge Herbert Adams serving in District No. 2. See

http://www.sandusky-county.org/Elected%20Officials/County%20Courts/default. 

asp. Judge Adams has reached the age of 70, and under the Ohio Constitution, 

Article IV, Section 6(C),2

 he cannot be reelected or reappointed judge. The 

judges are serving six-year terms, R.C. 1907.13, which are scheduled to expire in 

the absence of the legislation challenged here on December 31, 2012, and January 

1, 2013. Former R.C. 1907.11(A), 2010 Sub.H.B. No. 338. 

{¶ 3} In June 2012, the General Assembly enacted 2012 Am.Sub.H.B. No. 

509 (“H.B. 509”), which abolishes the Sandusky County Court and establishes the 

Sandusky County Municipal Court effective January 1, 2013. R.C. 1907.11(A) 

(“Until December 31, 2006, in the Sandusky county county court, two part-time 

judges shall be elected in 1994, terms to commence on January 1, 1995, and 

January 2, 1995, respectively. The judges elected in 2006 shall serve until 

December 31, 2012. The Sandusky county county court shall cease to exist on 

January 1, 2013”); R.C. 1901.01(H) (“Effective January 1, 2013, there is hereby 

 

1. Although the parties refer to the court as the “Sandusky County Court,” it is referred to in the 

pertinent legislation as the “Sandusky county county court.” E.g., R.C. 1907.11(A). 

2. This section provides, “No person shall be elected or appointed to any judicial office if on or 

before the day when he shall assume the office and enter upon the discharge of its duties he shall 

have attained the age of seventy years.” 
January Term, 2012 

3

established a municipal court within Sandusky county in any municipal 

corporation or unincorporated territory within Sandusky county, except the 

municipal corporations of Bellevue and Fremont and Ballville, Sandusky, and 

York townships, that is selected by the legislative authority of that court”); R.C. 

1901.02(A)(30) (“The municipal court established within Sandusky county in any 

municipal corporation or unincorporated territory within Sandusky county, except 

the municipal corporations of Bellevue and Fremont and Ballville, Sandusky, and 

York townships, that is selected by the legislative authority of that court and that, 

beginning January 1, 2013, shall be styled and known as the ‘Sandusky county 

municipal court’ ”); and R.C. 1901.02(B) (“Beginning January 1, 2013, the 

Sandusky county municipal court has jurisdiction within all of Sandusky county 

except within the municipal corporations of Bellevue and Fremont and Ballville, 

Sandusky, and York townships”). 

{¶ 4} H.B. 509 further amended R.C. 1901.08 to specify that the part-time 

judges of the Sandusky County Court will serve as part-time judges of the new 

Sandusky County Municipal Court for a one-year term when the new court is 

established and the old court is abolished effective January 1, 2013, and that the 

six-year term for the new full-time municipal court judgeship will be decided at 

an election held in 2013: 

 In the Sandusky county municipal court, one full-time 

judge shall be elected in 2013. Beginning on January 1, 2013, the 

two part-time judges of the Sandusky county county court that 

existed prior to that date shall serve as part-time judges of the 

Sandusky county municipal court until December 31, 2013. If 

either judgeship becomes vacant before January 1, 2014, that 

judgeship is abolished on the date it becomes vacant, and the 

person who holds the other judgeship shall serve as the full-time 
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judge of the Sandusky county municipal court until December 31, 

2013. 

 

{¶ 5} The effective date of H.B. 509 was September 28, 2012. 

{¶ 6} On July 10, 2012, appellants, Roy Whitehead, Michael Benton, 

Gregory S. Gerwin, and Richard A. Harman, filed a complaint in prohibition and 

mandamus and for a declaratory judgment in an expedited election matter in the 

Court of Appeals for Sandusky County. Appellants are Sandusky County 

taxpayers and are the chiefs of police and mayors of Woodville and Gibsonburg, 

which are within the territorial jurisdiction of both the existing county court and 

the municipal court established by H.B. 509. 

{¶ 7} Appellants sought a declaratory judgment holding H.B. 509 to be 

unconstitutional, a writ of prohibition to prevent appellee Sandusky County Board 

of Commissioners from expending funds for the municipal court created by H.B. 

509, and a writ of mandamus to order appellee Sandusky County Board of 

Elections to accept petitions for the office of judge of the Sandusky County Court 

and to hold an election in November 2012, which is the regular election cycle for 

the county court. 

{¶ 8} After the court of appeals granted an alternative writ and ordered 

appellees to file a response to appellants’ complaint, appellants filed a motion for 

summary judgment in which they introduced evidence that three candidates had 

submitted petitions to run for the two judicial seats for the Sandusky County 

Court. Judge Kolesar submitted a petition for the District No. 1 seat that he 

currently occupies, and Beth Tischler and Mary Beth Fiser submitted petitions to 

run for the District No. 2 seat currently occupied by Judge Adams. The board of 

elections rejected all of the petitions, presumably because of H.B. 509. 

{¶ 9} Following the submission of briefs pursuant to an expedited 

schedule, on September 27, the court of appeals declared that the amendment in 
January Term, 2012 

5

H.B. 509 (R.C. 1901.08) providing for the one-year appointment of the two 

existing, part-time county court judges to the newly created municipal court on 

January 1, 2013 is unconstitutional because it provides for the legislative 

appointment of the judges to the new judgeship. 

{¶ 10} The court determined that the unconstitutional amendment to R.C. 

1901.08 is severable from the constitutional amendments to R.C. 1907.11(A) 

abolishing the Sandusky County Court and to R.C. 1901.01 and 1901.02 creating 

the Sandusky County Municipal Court. The court also determined that the 

unconstitutional portion of R.C. 1901.08 providing for the one-year appointment 

of the county court judges to the municipal court is severable from the 

constitutional portion of the statute providing for a 2013 election for the one fulltime judge of the municipal court. 

{¶ 11} For its remedy, the court of appeals granted a writ of mandamus to 

compel the board of elections and the board of commissioners to hold a special 

election prior to January 1, 2013, to elect one full-time judge for the first year of 

the newly created municipal court, with an election for a full six-year term to be 

held in November 2013. The court of appeals also denied appellants’ request for 

attorney fees. 

{¶ 12} Five days later, on October 2, appellants filed this appeal. The next 

day, this court granted appellants’ request for an expedited briefing schedule and 

invited the attorney general to file a brief expressing his views. 133 Ohio St.3d 

1405, 2012-Ohio-4560, 975 N.E.2d 1024. The court later granted appellants’ 

motion for a stay of the court of appeals’ judgment ordering the special election 

pending the court’s resolution of this appeal. 133 Ohio St.3d 1407, 2012-Ohio4662, 975 N.E.2d 1027. 

{¶ 13} The parties submitted briefs, and the attorney general declined the 

court’s invitation to submit a brief. This cause is now before the court for our 

consideration of the merits. 
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Analysis 

Preliminary Matters

{¶ 14} Initially, we have jurisdiction to address the merits of this appeal 

even though the court of appeals did not expressly rule on appellants’ prohibition 

claim. The judgment of the court of appeals fully complied with R.C. 2505.02 

and Civ.R. 54(B) notwithstanding its failure to specifically address appellants’ 

prohibition claim. The judgment granting the writ of mandamus affected a 

substantial right and determined the action. R.C. 2505.02(B)(1). Appellants 

sought the writ of prohibition to prevent the board of commissioners from 

spending funds for personnel for the newly created Sandusky County Municipal 

Court. By granting a writ of mandamus to compel the board of elections and the 

board of commissioners to conduct a special election to elect a judge for the new 

municipal court for a one-year term commencing on January 1, 2013, the court of 

appeals in effect denied or rendered moot appellants’ prohibition claim because it 

recognized the viability of the municipal court and its associated funding. And 

“ ‘even though all the claims or parties are not expressly adjudicated by the trial 

court, if the effect of the judgment as to some of the claims is to render moot the 

remaining claims or parties, then compliance with Civ.R. 54(B) is not required to 

make the judgment final and appealable.’ ” State ex rel. A & D Ltd. Partnership 

v. Keefe, 77 Ohio St.3d 50, 57, 671 N.E.2d 13 (1996), quoting Gen. Acc. Ins. Co. 

v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21, 540 N.E.2d 266 (1989). 

{¶ 15} Further, appellants’ claims are not barred by laches, as appellees 

suggest. Appellees waived this claim because they did not file a cross-appeal from 

the court of appeals’ judgment raising laches, and they admitted in their answer 

filed below that appellants acted with the utmost diligence in filing their case. 

{¶ 16} The court of appeals also properly denied appellants’ claim for a 

writ of prohibition to prevent the board of commissioners from expending funds 

on personnel working for the Sandusky County Municipal Court created by H.B. 
January Term, 2012 

7

509. Appellants did not establish that the board of county commissioners either 

exercised or is about to exercise judicial or quasi-judicial power when it 

appropriates funding for the new municipal court. See State ex rel. Bell v. 

Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 23. 

{¶ 17} Moreover, insofar as appellants’ request could be considered a 

request for a prohibitory injunction rather than a claim for a writ of prohibition, 

courts of appeals lack original jurisdiction in prohibitory injunction. State ex rel. 

Chattams v. Pater, 131 Ohio St.3d 119, 2012-Ohio-55, 961 N.E.2d 186. 

{¶ 18} Therefore, the court of appeals did not err by in effect denying 

appellants’ request for a writ of prohibition. 

Mandamus: Appellants’ Constitutional Claim

{¶ 19} In their complaint in the court of appeals, appellants requested a 

declaratory judgment that H.B. 509 is unconstitutional. “[N]either this court nor 

the court of appeals has original jurisdiction over claims for declaratory 

judgment.” State ex rel. Ministerial Day Care Assn. v. Zelman, 100 Ohio St.3d 

347, 2003-Ohio-6447, 800 N.E.2d 21, ¶ 22. 

{¶ 20} Nevertheless, it is appropriate for the court to consider the 

propriety of appellants’ constitutional claim concerning H.B. 509 in the context of 

their mandamus claim because an action for a declaratory judgment would not be 

sufficiently speedy in this expedited election case. See generally State ex rel. 

Watson v. Hamilton Cty. Bd. of Elections, 88 Ohio St.3d 239, 242, 725 N.E.2d 

255 (2000). 

{¶ 21} Therefore, we must first determine whether—as the court of 

appeals held—H.B. 509, insofar as it appoints two judges from the Sandusky 

County Court to a one-year term on the newly created Sandusky County 

Municipal Court beginning on January 1, 2013, is unconstitutional. R.C. 1901.08 

is unconstitutional because the General Assembly does not have power to appoint 
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judges under the Ohio Constitution. Kovachy v. Cleveland, 166 Ohio St. 388, 

389, 143 N.E.2d 579 (1957). 

{¶ 22} In addition, R.C. 1901.08 is unconstitutional because the judges of 

the county court were never elected to serve on the municipal court. The General 

Assembly has a constitutional duty to provide for the election of a judge upon its 

creation of any additional court. Ohio Constitution, Article IV, Section 6(A)(4) 

(“Terms of office of all judges shall begin on the days fixed by law, and laws 

shall be enacted to prescribe the times and mode of their election”); Ex Parte 

Logan Branch of State Bank of Ohio, 1 Ohio St. 432, 434 (1853) (“it is perfectly 

clear that, upon the creation of any additional court by the Legislature, the judicial 

officer must be elected, as such, by the electors of the district for which such court 

is created; and it is not within the competency of the Legislature to clothe with 

judicial power any officer or person, not elected as a judge”). 

{¶ 23} Finally, this statute is also unconstitutional because it provides a 

one-year term for the first judges on the municipal court. See Ohio Constitution, 

Article XVII, Section 1 (“The term of office of all judges shall be as provided in 

Article IV of this constitution or, if not so provided, an even number of years not 

exceeding six as provided by law”). 

{¶ 24} Therefore, the court of appeals properly determined that appellants 

had met their burden of establishing that H.B. 509 is, in part, unconstitutional. 

Mandamus: Court of Appeals’ Remedy

{¶ 25} The court of appeals granted a writ of mandamus to compel 

appellees, the board of elections and the board of commissioners, to hold a special 

election prior to January 1, 2013, to elect a judge for the newly created municipal 

court. Appellants claim that the court of appeals erred in ordering this special 

election and that the court should have granted their requested writ of mandamus 

to compel the appellees to conduct an election for the two county court part-time 

judgeships for the six-year terms beginning on January 1 and 2, 2013. 
January Term, 2012 

9

{¶ 26} To be entitled to the requested extraordinary relief in mandamus, 

appellants must establish a clear legal right to the requested relief, a 

corresponding clear legal duty on the part of appellees to provide it, and the lack 

of an adequate remedy in the ordinary course of law. State ex rel. Waters v. 

Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Because of the 

proximity of the expiration of the terms of the current judges of the Sandusky 

County Court and any election necessary to elect judges to new terms on that 

court, appellants lack an adequate remedy in the ordinary course of law. Id. 

{¶ 27} For the remaining requirements, appellants claim that because H.B. 

509 is unconstitutional and the pertinent constitutional portions of it cannot be 

severed, the board of elections and the board of commissioners have a clear legal 

duty under the preexisting law to conduct elections for the next six-year terms of 

the two part-time judges of the county court, beginning on January 1 and 2, 2013. 

We agree. 

{¶ 28} “When this court holds that a statute is unconstitutional, severance 

may be appropriate. * * * Severance is suitable, however, only where it satisfies 

our well-established standard.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 

845 N.E.2d 470, ¶ 94; see also R.C. 1.50. Under the applicable three-part test, the 

court must answer the following questions: 

 “(1) Are the constitutional and the unconstitutional parts 

capable of separation so that each may be read and may stand by 

itself? (2) Is the unconstitutional part so connected with the 

general scope of the whole as to make it impossible to give effect 

to the apparent intention of the Legislature if the clause or part is 

stricken out? (3) Is the insertion of words or terms necessary in 

order to separate the constitutional part from the unconstitutional 

part, and to give effect to the former only?” 
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Geiger v. Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927), quoting State v. 

Bickford, 28 N.D. 36, 147 N.W. 407 (1913), paragraph nineteen of the syllabus. 

{¶ 29} The court of appeals determined that the portion of R.C. 1901.08 

appointing the existing county court part-time judges to a one-year term as judges 

of the newly created municipal court was unconstitutional but severable from the 

remaining amended provisions in H.B. 509. We disagree. 

{¶ 30} The court of appeals’ remedy fails for several reasons. First, the 

special election ordered is not included in H.B. 509, and courts are forbidden to 

add a nonexistent provision to the plain language of legislation. State ex rel. 

Steffen v. Court of Appeals, First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio2430, 934 N.E.2d 906, ¶ 26 (“we are forbidden to add a nonexistent provision to 

the plain language of [a statute]”). 

{¶ 31} Second, courts cannot create the legal duty that is enforceable in 

mandamus; the creation of this duty is a legislative and not a judicial function. 

State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122, 

2012-Ohio-4228, 976 N.E.2d 861, ¶ 30, and cases cited therein. 

{¶ 32} Third, in applying the third prong of the severance test, the court 

cannot add language to the challenged legislation to sever the constitutional part 

from the unconstitutional part. See Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 

N.E.2d 470, ¶ 98 (in severing a portion of the felony-sentencing provisions to 

save the constitutional part, the court emphasized that “[w]e add no language, and 

the vast majority of S.B. 2, which is capable of being read and of standing alone, 

is left in place”); State ex rel. Maurer v. Sheward, 71 Ohio St.3d 513, 524, 644 

N.E.2d 369 (1994) (court excised unconstitutional portion of statute affecting 

governor’s powers of commutations and reprieves, but retained provisions 

concerning governor’s power to pardon after determining that the court “need not 

add any other language in order to give effect to its regulatory scheme”). 
January Term, 2012 

11

{¶ 33} Finally, the court of appeals’ special election for a one-year term 

violates the Ohio Constitution, Article XVII, Section 1, which requires that if a 

term of office for a judge is not provided in Article IV, the term shall be for “an 

even number of years not exceeding six.” 

Application of Geiger

{¶ 34} Applying the Geiger tripartite severance test, we must first 

determine whether the constitutional and unconstitutional parts of H.B. 509 

relating to the Sandusky County Court and the Sandusky County Municipal Court 

are capable of separation. The pertinent unconstitutional parts of the legislation 

involve the appointment of the county court judges to act as municipal court 

judges for 2013. The General Assembly is authorized to abolish nonconstitutional 

inferior courts like the Sandusky County Court and to create the Sandusky County 

Municipal Court. See Ohio Constitution, Article IV, Section 1. The General 

Assembly is also authorized to require a November 2013 election for judge of the 

newly created municipal court as set forth in amended R.C. 1901.08. See Ohio 

Constitution, Article XVII, Section 1 (“Elections for state and county officers 

shall be held on the first Tuesday after the first Monday in November in even 

numbered years; and all elections for all other elective officers shall be held on 

the first Tuesday after the first Monday in November in the odd numbered years” 

[emphasis added]); State ex rel. Higley v. Shale, 137 Ohio St. 311, 313, 29 N.E.2d 

214 (1940) (municipal court judge is not a state or county officer for purposes of 

Article XVII, Section 1); R.C. 1901.06 (“the first election of any newly created 

office of a municipal judge shall be held at the next regular municipal election 

occurring not less than one hundred days after the creation of the office”); R.C. 

3501.01(B) (“ ‘Regular municipal election’ means the election held on the first 

Tuesday after the first Monday in November in each odd-numbered year”); see 

also R.C. 1901.08 (setting elections in specific odd-numbered years for municipal 

courts). 
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{¶ 35} Nevertheless, after excision of the January 1, 2013 date for 

abolishing the Sandusky County Court and creating the Sandusky County 

Municipal Court and the provision that the county court judges serve as judges of 

the municipal court in 2013, the remainder of the amended statutes cannot stand 

by themselves. 

{¶ 36} Appellees suggest that simply replacing the January 2013 date with 

January 2014 would allow the statutes to stand. Although “the institution of a 

new municipal court shall take place on the first day of January next after the first 

election for the court” under R.C. 1901.06 and the November 2013 election is 

specified in amended R.C. 1901.08, the statutes do not specify January 1, 2014, as 

the date of the court’s establishment. With the phrase “January 1, 2013,” excised 

from the amended R.C. 1907.11(A), leaving the mere statement that “[t]he 

Sandusky county county court shall cease to exist,” there is no existing statutory 

provision that would supply the date of January 1, 2014, as the end date for the 

existing county court. 

{¶ 37} For the second part of the severance test, the unconstitutional part 

of H.B. 509 relating to Sandusky County is so connected to the general scope of 

that county’s entire legislation as to make it impossible to give effect to the 

apparent intention of the General Assembly if that part is stricken. The 

preeminent intent of the General Assembly in enacting this legislation is to 

abolish the Sandusky County Court and its part-time judges and to replace it with 

the newly created Sandusky County Municipal Court and its full-time judge on 

the specified date of January 1, 2013. To substitute January 1, 2014, as the 

applicable date contravenes that manifest intent. 

{¶ 38} Finally, severance fails to satisfy the third part of the test. Much 

like the court of appeals’ remedy, the remedy advocated by appellees adds 

language to the statute. We cannot replace the statutory language and hold that 

severance is appropriate. 
January Term, 2012 

13

{¶ 39} This result is supported by precedent. In Franklin Cty. Bd. of 

Elections v. State ex rel. Schneider, 128 Ohio St. 273, 191 N.E. 115 (1934), we 

affirmed a judgment granting a writ of mandamus to compel a board of elections 

and its members to hold a regular election for county recorder for a two-year term 

in light of the unconstitutionality of a statute that extended the term of incumbent 

recorders for two years with four-year terms thereafter. Although the latter 

provision for county recorders to be elected to four-year terms was constitutional 

by itself, because it was inseparably connected with the unconstitutional two-year 

unelected extension of incumbent county recorders’ original two-year terms, the 

entirety of the amendments fell: 

If it were not for the fact that the two sections when 

considered together do away with the election of 1934, tenable 

argument could be advanced favoring the constitutionality of 

section 2750, General Code; but the sections are so ‘inseparably 

connected’ that both must fall, and the repealing section must fall 

with them. 

Id. at 294. 

{¶ 40} Similarly, although the portion of H.B. 509 abolishing the 

Sandusky County Court and replacing it with the Sandusky County Municipal 

Court after an election for judge of the municipal court at the regular municipal 

election in November 2013 would be constitutional, that portion of the enactment 

is inseparably connected to the unconstitutional part of H.B. 509 specifying the 

date of January 1, 2013, as the date that the municipal court will replace the 

county court and further legislatively appointing the two judges of the county 

court to serve a one-year term as judges of the newly created municipal court in 

2013. 
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{¶ 41} Therefore, the entire part of H.B. 509 addressing the abolition of 

the Sandusky County Court and its replacement with the newly created Sandusky 

County Municipal Court is inseparable into constitutional and unconstitutional 

parts and must be stricken as unconstitutional. But the General Assembly is free 

to revisit this issue and to enact a new act to validly abolish the county court and 

to replace it with the municipal court on January 1, 2014. See, e.g., Schneider, at 

paragraph five of the syllabus (“An act of the General Assembly, which was 

unconstitutional at the time of enactment, can be revivified only by 

reenactment”); Geisinger v. Cook, 52 Ohio St.2d 51, 57, 369 N.E.2d 477 (1977) 

(“If the court is properly abolished by the General Assembly, the term of one 

holding the office of judge of that court is terminated”); Greene v. Cuyahoga Cty., 

195 Ohio App.3d 768, 2011-Ohio-5493, 961 N.E.2d 1171, ¶ 35-38 (power to 

abolish an office is as unrestricted as the power to create an office, and an office 

can be abolished midterm). 

{¶ 42} Thus, the Sandusky County Court remains in existence, and 

appellants are entitled to a writ of mandamus to compel the regularly scheduled 

election on November 6, 2012, for the part-time judges of the two districts for the 

specified six-year terms. See R.C. 1907.13 (“Judges shall be elected by the 

electors of the county court district at the general election in even-numbered years 

as set forth in section 1907.11 of the Revised Code for a term of six years 

commencing on the first day of January following the election for the county 

court”). 

{¶ 43} Therefore, the court of appeals erred in ordering a special election 

for a one-year term for the newly created municipal court and in not granting a 

writ of mandamus ordering the board of elections to conduct the regular 

November 6, 2012 election for the Sandusky County Court. H.B. 509, insofar as 

it addresses the abolition of the Sandusky County Court and its replacement by 

the newly created Sandusky County Municipal Court on January 1, 2013, is 
January Term, 2012 

15

unconstitutional, and the constitutional part is inseparable from the 

unconstitutional part. 

Attorney Fees 

{¶ 44} The court of appeals did not err in denying appellants’ request for 

attorney fees under R.C. 309.13 and 2335.39. 

{¶ 45} The civil action contemplated by R.C. 309.12 and 309.13 is one in 

prohibitory injunction, which that court lacks original jurisdiction to consider. 

See Chattams, 131 Ohio St.3d 119, 2012-Ohio-55, 961 N.E.2d 186; State ex rel. 

Stamps v. Automatic Data Processing Bd. of Montgomery Cty., 42 Ohio St.3d 

164, 538 N.E.2d 105 (1989) (court denied writ of mandamus brought as an R.C. 

309.13 taxpayer action because it sought to enjoin conduct). And the court of 

appeals in effect denied appellants’ sole preventive claim that it had original 

jurisdiction to consider—their claim for a writ of prohibition to prevent the board 

of commissioners’ expenditure of funds for the newly created municipal court. 

{¶ 46} Appellants are also not entitled to an award of attorney fees under 

R.C. 2335.39, which is inapplicable to mandamus actions. State ex rel. Ohio 

Liberty Council v. Brunner, 126 Ohio St.3d 1510, 2010-Ohio-3331, 930 N.E.2d 

330; State ex rel. Myles v. Brunner, 120 Ohio St.3d 1413, 2008-Ohio-6166, 897 

N.E.2d 650. 

Conclusion 

{¶ 47} Based on the foregoing, the court of appeals correctly held that 

H.B. 509 is unconstitutional insofar as it appoints judges of the Sandusky County 

Court to the newly created Sandusky County Municipal Court for 2013. The 

court of appeals erred, however, in granting a writ of mandamus to compel 

appellees to conduct a special election for judge of the Sandusky County 

Municipal Court for a one-year term in 2013. Appellants have established their 

entitlement to a writ of mandamus to compel appellees to conduct the November 

6, 2012 election for the two part-time judgeships for the Sandusky County Court. 
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{¶ 48} Therefore, we reverse the judgment of the court of appeals insofar 

as it grants a writ of mandamus to compel a special election for judge of the 

municipal court for the one-year term commencing January 1, 2013. We grant a 

writ of mandamus to compel the board of elections to accept the filed candidate 

petitions for the two offices of judge of the Sandusky County Court and to 

conduct the November 6, 2012 election for the county court. Finally, we affirm 

the judgment denying appellants’ requests for a writ of prohibition and for 

attorney fees. 

Judgment accordingly. 

PFEIFER, ACTING C.J., and LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, MCGEE BROWN, and SUNDERMANN, JJ., concur. 

 O’CONNOR, C.J., not participating. 

 J. HOWARD SUNDERMANN JR., J., of the First Appellate District, sitting for 

O’CONNOR, C.J. 

_____________ 

 Mayle, Ray & Mayle, L.L.C., Andrew R. Mayle, Jeremiah S. Ray, and 

Ronald J. Mayle, for appellants. 

 Russell V. Leffler, Huron County Prosecuting Attorney, for appellees. 

____________________