State ex rel. Jackman v. Court of Common Pleas of Cuyahoga County

• Citation: 224 N.E.2d 906,38 O.O.2d 404,9 Ohio St.2d 159
• Decision Date: 22 March 1967
• Docket Number: No. 40444,40444
• Parties: , 38 O.O.2d 404 The STATE ex rel. JACKMAN et al., Appellees, v. COURT OF COMMON PLEAS OF CUYAHOGA COUNTY et al., Appellants.
• Court: United States State Supreme Court of Ohio

Page 159

9 Ohio St.2d 159

224 N.E.2d 906, 38 O.O.2d 404

The STATE ex rel. JACKMAN et al., Appellees, v. COURT OF COMMON PLEAS OF CUYAHOGA COUNTY et al., Appellants.

No. 40444.

Supreme Court of Ohio.

March 22, 1967.

Syllabus by the Court

Section 2945.50 of the Revised Code, which authorizes the taking of pretrial discovery depositions in criminal cases, is a valid enactment of the General Assembly and contravenes neither Section 10, Article I, nor Section 1, Article II, of the Ohio Constitution.

After David Terelli and Norman T. Kosky were indicted for murder in the first degree, they, through their attorneys, applied in writing to the Court of Common Pleas of Cuyahoga County, in which their indictment was pending, for a commission to take depositions of certain witnesses. The trial judge set the matter for hearing, after which he announced his intention to grant such application for a commission and requested counsel to draw an order to that effect.

Thereupon five of the named witnesses filed an action in prohibition in the Court of Appeals, seeking a writ to prohibit the trial judge from entering the above order in the journal. The Court of Appeals issued the writ (6 Ohio App.2d 182, 217 N.E.2d 251 (1966)), holding that amended Section 2945.50, Revised Code, which authorizes the trial judge's intended action, violated Section 10, Article I of the Ohio Constitution, and also constituted an unlawful delegation of legislative powers to the trial court.

The respondents appealed to this court as a matter of right.

John T. Corrigan, Pros. Atty., and Dennis J. McGuire, Cleveland, for appellees.

Bernard A. Berkman, Fred H. Mandel and James R. Willis, Cleveland, for appellants.

HERBERT, Judge.

At the outset, the case at bar should be distinguished from State ex rel. Staton v. Common Pleas Court of Franklin County, 5 Ohio St.2d 17, 213 N.E.2d 164 (1965), where this court held:

'1. The jurisdiction of the Court of Appeals to issue a writ of prohibition does not extend to an interlocutory matter arising during the proceedings in a cause before an inferior tribunal, which has jurisdiction of the cause, unless such interlocutory matter involves a usurpation of judicial power.'

In Staton, the question was whether the trial judge abused his discretion under the circumstances in ordering the relatrix to submit to a neurological and psychiatric examination. The question here is whether the trial judge has the power to commission pretrial discovery depositions in a criminal case. The question here is not one of good judgment but of strict power.

Moreover, it affirmatively appears that relators have no plain and adequate remedy in the ordinary course of the law. If the alleged usurpation of judicial power were to result in some undue advantage to the defendants in the criminal prosecution, and if the defendants were to be acquitted, the double jeopardy provision of Section 10, Article I of the Ohio Constitution, would preclude the state from trying the defendants a second time. See State v. Baxter, 89 Ohio St. 269, 104 N.E. 331, 52 L.R.A.,N.S., 1019 (1914). Hence, appeal would not be an adequate remedy. Nor would any remedy in the Common Pleas Court of Cuyahoga County be appropriate, since it is that court's action that is being challenged.

Therefore, since the relators seek to prevent an alleged usurpation of judicial power and are without a plain and adequate remedy in the ordinary course of the law, resort to the writ of prohibition was correct by any standard that this court has fashioned for extraordinary remedies. Compare State ex rel. Central Service Station, Inc., v. Masheter, Dir. of Hwys., 7 Ohio St.2d 1, 218 N.E.2d 177 (1966), and State ex rel. Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 218 N.E.2d 428 (1966), with State ex rel. Tempero v. Colopy et al., Judges, 173 Ohio St. 122, 180 N.E.2d 273 (1962).

On the merits, the relators squarely challenge the validity of amended Section 2945.50 of the Revised Code, effective October 13, 1965. That section reads as follows:

'At any time after an issue of fact is joined upon an indictment, information, or an affidavit, the prosecution or the defendant may apply in writing to the court in which such indictment, information, or affidavit is pending for a commission to take the depositions of any witness. The court or a judge thereof may grant such commission and make an order stating in what manner and for what length of time notice shall be given to the prosecution or to the defendant, before such witness shall be examined.'

There is no dispute that the above section purports to authorize a trial court to commission the taking of pretrial discovery depositions. The relators contend that a statute so broadly drawn transgresses Section 10, Article I of the Ohio Constitution, which states in pertinent part:

'* * * In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed; but provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court. * * *'

However, when an enactment of the General Assembly is challenged, the challenger must overcome a strong presumption of constitutionality. See American Cancer Society, Inc., v. Dayton, 160 Ohio St. 114, 121, 114 N.E.2d 219 (1953). The legal duty imposed upon the judiciary was succinctly stated in paragraph one of the syllabus in State ex rel. Dickman v. Defenbacher, Dir., 164 Ohio St. 142, 128 N.E.2d 59 (1955):

'An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.'

That duty applies both to the General Assembly of Ohio and to the federal Congress. However, it should be noted that the federal Constitution is a grant of power to the Congress, while the state Constitution is primarily a limitation on legislative power of the General Assembly. It follows that the General Assembly may pass any law unless it is specifically prohibited by the state or federal Constitutions. McNab v. Board of Park Commrs., 108 Ohio St. 497, 501, 141 N.E. 332 (1923); Fisher Bros. Co. v. Brown, Secy. of State, 111 Ohio St. 602, 625, 146 N.E. 100 (1924); State ex rel. Youngstown v. Jones, Auditor, 136 Ohio St. 130, 133, 24 N.E.2d 442 (1939); State ex rel. Brunenkant v. Wallace, Registrar, 137 Ohio St. 379, 383, 30 N.E.2d 696 (1940); Angell v. Toledo, 153 Ohio St. 179, 181, 91 N.E.2d 250 (1950). See Cass v. Dillon, 2 Ohio St. 607 (1853).

An excellent summary of these principles of law was made by the court in State ex rel. v. Jones, Auditor, 51 Ohio St. 492, 503, 504, 37 N.E. 945, 948 (1894):

'In determining whether an act of the legislature is or is not in conflict with the constitution, it is a settled rule, that the presumption is in favor of the validity of the law. The legislative power of the state is vested in the general assembly, and whatever limitation is placed upon the exercise of that plenary grant of power must be found in clear prohibition by the constitution. The legislative power will generally be deemed ample to authorize the enactment of a law, unless the legislative discretion has been qualified or restricted by the constitution in reference to the subject-matter in question. If the constitutionality of the law is involved in doubt, that doubt must be resolved in favor of the legislative power. The power to legislate for all the requirements of civil government is the rule, while a restriction upon the exercise of that power in a particular case is the exception.' (Emphasis added.)

Therefore, although without specific authorization in the Ohio Constitution, the General Assembly has enacted provisions permitting the trial court to commission discovery depositions in civil cases (Section 2319.14, Revised Code) and also to compel parties to produce pertinent documents (Section 2317.32, Revised Code). Even in criminal cases the General Assembly has authorized discovery practices without a constitutional grant of authority on the subject. Section 2945.58 of the Revised Code requires that a defendant file a notice of intention to claim an alibi not less than three days prior to the trial. No one has yet contended that such provisions are unconstitutional. See Section 1, Article II, Ohio Constitution.

Our decision then must hinge on the answer to these questions: Does Section 10, Article I of the Ohio Constitution, clearly prohibit pretrial discovery depositions in criminal cases? Can Section 2945.50 of the Revised Code be rationally reconciled with the constitutional provision?

The language of Section 10, Article I, quoted earlier in the opinion, permits the Legislature to enact laws allowing the state and the defendant to take depositions to perpetuate the testimony of a witness 'whose attendance cannot be had at the trial,' provided that the accused is afforded the right of confrontation that has always been his at trial in Ohio since the time of the 1802 Constitution.

Certainly, Section 10, Article I, does not expressly prohibit anything other than the denial of the right of confrontation in respect to depositions to perpetuate testimony. It does not expressly prohibit discovery depositions. However, under Cass v....