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Attorneys Seeking Court Appointments Not Required to File Patriot Act Form Regarding Terror Groups
2006-0742. State ex rel. Triplett v. Ross, 2006-Ohio-4705.
In Prohibition. Writ granted in part and denied in part.
Resnick, Pfeifer, O'Connor and O'Donnell, JJ., concur.
Lundberg Stratton, J., concurs in part and dissents in part.
Moyer, C.J., and Lanzinger, J., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-4705.pdf
(Sept. 13, 2006) The Supreme Court of Ohio today issued an order preventing a municipal court and its judge and clerk from requiring that attorneys seeking court appointments file a form under the Ohio Patriot Act certifying that they do not provide material assistance to a terrorist organization.
The Court's per curiam decision did not rule on the constitutionality of Ohio's Patriot Act, but found that attorneys who seek court appointments to represent indigent clients and who do not earn more than $100,000 per year through such representation do not fall under the act's definition of persons subject to the terrorism requirement.
The General Assembly enacted the Ohio Patriot Act on Dec. 14, 2005, to implement the provisions of the U.S. Patriot Act of 2001 and with the governor's signature it became effective on April 14, 2006. Among the act's purposes is to limit licensing, employing and doing business with persons who have provided material assistance to an organization on the United States Department of State Terrorist Exclusion List. The Ohio act requires the declaration through the answering of six questions to determine whether applicants for certain identified licenses, persons doing business with a government entity, or applicants under final consideration for government employment have provided material assistance to an organization on the terrorist list. An affirmative answer or failure to answer “no” to any of the questions on the declaration serves as a disclosure that the person provided material assistance to an organization listed.
Four days before the effective date of the Ohio Patriot Act, Bellefontaine Municipal Court Clerk Marty Carmean issued a memo on the court's letterhead directed to all counsel who seek or obtain court appointments to represent indigent persons in the court instructing them to immediately complete and return the declaration of material assistance/nonassistance document. The certification at the end of the declaration specified that “if this declaration is not completed in its entirety, it will not be processed and [the person] will be automatically disqualified” from doing business with the state government.
On April 14, 2006, Marc S. Triplett, an attorney licensed in the state of Ohio, filed an action with the Supreme Court of Ohio asking the Court to order the respondents in this case – Bellefontaine Municipal Court, its Judge John L. Ross, and clerk Marty Carmean – to cease from asking attorneys who seek appointments from the court to represent indigent clients to complete and return the form. Triplett, who has sought and obtained court appointments to represent indigent persons in the Bellefontaine Municipal Court, would like to continue to obtain appointments in the court, but does not want to complete the declaration. Despite his refusal to complete the declaration, the municipal court has appointed him to represent an indigent person since the declaration requirement was put in place.
Triplett originally claimed that he was entitled to a writ of prohibition because he said portions of the Ohio Patriot Act unconstitutionally usurped the Supreme Court of Ohio's exclusive authority to regulate the practice of law. Triplett later abandoned this argument.
Ohio Revised Code 2909.33, which addresses the declaration under the Patriot Act, specifically notes that the statute pertains to “any person conducting business with or receiving funding in an aggregate amount of greater than $100,000 per year …” In today's decision the Court ruled that the municipal court's assertion that the statute requires attorneys seeking appointments to complete the declaration is incorrect for several reasons, including: Triplett does not earn more than $100,000 per year from his court appointments, the municipal court respondents admit that R.C. 2909.33 is inapplicable to court appointments in Bellefontaine Municipal Court, and the code does not authorize the municipal court or any other state entity to withhold funding of any court appointment for Triplett.
“Therefore notwithstanding the respondents' arguments to the contrary, R.C. 2909.33 did not authorize them to require attorneys seeking court appointments who make less than $100,000 annually from those appointments, like Triplett, to complete the declaration of material assistance/nonassistance. Therefore the municipal court respondents' requirement is an unauthorized exercise of judicial power,” the Court ruled. “… (B)ecause neither R.C. 2909.33 nor any other statute, rule or precedent authorizes the municipal court respondents to require Triplett and other attorneys who make less than $100,000 annually from court appointments to complete the declaration, the municipal court respondents patently and unambiguously lacked jurisdiction to do so, and the availability of an adequate remedy is immaterial. Therefore, we grant the requested writ of prohibition to prevent the municipal court respondents from requiring attorneys who seek court appointments to represent indigent defendants and make less than $100,000 per year from those appointments to complete the declaration.”
The Court's majority opinion, joined by Justices Alice Robie Resnick, Paul E. Pfeifer, Maureen O'Connor and Terrence O'Donnell, denied an additional writ sought by Triplett to prohibit the municipal court from removing attorneys who decline to complete the terrorism declaration from the list of those eligible to receive future court appointments. The majority found that, because Triplett had not in fact been removed from the eligible list and had been appointed to represent at least one indigent defendant since his refusal to complete the declaration, he was not entitled to the requested relief.
Justice Evelyn Lundberg Stratton entered a separate opinion concurring in part and dissenting in part. Justice Stratton wrote that she agreed that attorneys being paid less than $100,000 per year to represent indigent defendants do not fall within the range of persons required by law to complete a terrorism declaration. She said she would also grant the second writ sought by Triplett to specifically prohibit his disqualification from receiving court appointments for failure to sign a terrorism declaration because the trial court's assertion the he could still get appointments but just could not be paid turned the appointment into pro bono representation.
“The majority denies a writ as to the issue of whether the Bellefontaine Municipal Court may disqualify Triplett from its appointment list. The court reasons that Triplett remains on the appointed list and has in fact received an appointment since this action was filed.” wrote Justice Stratton. “The court contends in this respect only that Triplett cannot be paid for his appointment. Such an assertion makes the fact that the court is still willing to appoint Triplett meaningless. It turns Triplett's representation into automatic pro bono work. Therefore, I would grant the entire writ.”
Chief Justice Thomas J. Moyer entered a dissent, joined by Justice Judith Ann Lanzinger, indicating that he would deny the requested writs not because he disagreed with the majority's holding interpreting the Ohio Patriot Act, but because he believed that a writ of prohibition was not the appropriate legal remedy for Triplett's complaint. He noted that a long line of court decisions has limited the proper issuance of writs of prohibition to cases in which a court or other office is attempting to exercise judicial or quasi-judicial power that is unauthorized by law, and in which the relator has no other regular or adequate legal remedy.
In this case, the Chief Justice wrote, the municipal court had judicial authority to apply the Ohio Patriot Act to its appointments and contractual relationships, and even though it may have made an erroneous judgment in this case, the court did not patently or unambiguously exceed its authority. He also suggested that Triplett had “other adequate remedies in the due course of law through an action for declaratory judgment, an appeal, an injunction, or even through the writ of mandamus. While inconvenient, Triplett should have represented his client and, upon completion of that representation, applied for compensation. Once the municipal court denied his request for compensation, Triplett could have filed a complaint for a writ of mandamus that would order the municipal court to compensate him,” wrote Chief Justice Moyer.
Contacts
Jeffrey Gamso, 419.243.3800, for Marc. S. Triplett.
Daniel Bennett, 937.593.8075, for Bellefontaine Municipal Court.
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