The move comes in response to a filing by county Prosecutor Dennis Will, who earlier this month asked the state’s highest court to shut down the program, arguing that it was illegal under Ohio law.
Will contends that only prosecutors have the authority to operate diversion programs in Ohio and that the judges’ program, created four years ago, violates the constitutional separation of powers.
The judges have admitted 22 people into the program, and efforts by Will’s office to convince the 9th District Court of Appeals to rule the program illegal have proven unsuccessful so far.
But just because the appeals court hasn’t directly addressed the legality of the diversion program doesn’t mean that Will can take the issue to the Supreme Court, the judges wrote.
Asking the Supreme Court to intervene is considered to be a last resort to deal with legal disputes.
“(The judges) deny that (the prosecutor’s) dissatisfaction with the judgments issued by the court of appeals, or that (the prosecutor’s) anticipation of similar judgments on appeals currently pending, leave (prosecutors) without an adequate remedy at law,” the judges wrote.
Assistant County Prosecutor Elizabeth Lindberg wrote in the filing asking the Supreme Court to get involved that, despite multiple efforts, the appeals court has failed to address whether the judge’s program is constitutional.
“It has become clear that the State can only achieve legal redress through the extraordinary relief of a writ,” Lindberg wrote.
Will has said that he delayed taking action in the Supreme Court so long because he wanted to avoid the expense of a legal fight that will see the judges hiring their own lawyer to represent them. Will’s office typically serves as legal counsel for the county’s judges.
Court Administrator Tim Lubbe said the judges have hired attorney Subodh Chandra to represent them. He said the cost to get through the first round of the matter could cost the county as much as $25,000.
Administrative Judge James Burge said Monday that the judges plan to ask the Supreme Court to dismiss Will’s challenge to their program in an upcoming court filing.