State ex rel. Berger v. McMonagle, 82-1139

• Decision Date: 13 July 1983
• Docket Number: No. 82-1139,82-1139
• Parties: , 6 O.B.R. 50 The STATE, ex rel. BERGER, Appellant, v. McMONAGLE, Judge, et al., Appellees.
• Court: Ohio Supreme Court

Page 28

6 Ohio St.3d 28

451 N.E.2d 225, 6 O.B.R. 50

The STATE, ex rel. BERGER, Appellant, v. McMONAGLE, Judge, et al., Appellees.

No. 82-1139.

Supreme Court of Ohio.

July 13, 1983.

Appellant, Sanford J. Berger, is the plaintiff in a civil action currently pending in the Court of Common Pleas of Cuyahoga County. The action was originally assigned to Judge Harry A. Hanna, who granted a motion for summary judgment in favor of the defendants. On appeal, the court of appeals reversed the judgment of the trial court and remanded the cause for further proceedings.

On remand, Judge Leo M. Spellacy, Administrative Judge of the Court of Common Pleas and an appellee herein, reassigned the case by lot. The assignment was accomplished by selecting a card from a sealed pack in which each card bears the name of one judge of the court of common pleas. In accordance with this procedure, the case was assigned to Judge James J. Sweeney.

Subsequently, Judge Spellacy, in his capacity as the administrative judge, conducted a review of the caseloads of the judges in the court of common pleas for purposes of adjusting each judge's docket containing overaged cases. The underlying civil action was among one of many civil actions selected for transfer. Accordingly, Judge Spellacy informed Judge Sweeney by letter dated February 18, 1982, that the civil action was eligible for transfer. On February 22, 1982, Judge Sweeney entered an order transferring the case to Judge Spellacy.

Ultimately, the case was assigned to Judge George J. McMonagle, also an appellee, for trial. Judge McMonagle is a retired judge sitting by assignment pursuant to Section 6(C), Article IV of the Ohio Constitution. Appellant filed an objection to the assignment and verbally requested that Judge McMonagle disqualify himself on the basis that he and counsel for the defense were related to one another. The objection was overruled on April 26, 1982.

Appellant then filed the instant action in the court of appeals seeking a writ of prohibition to prevent Judge McMonagle from hearing the case and a writ of mandamus ordering Judge Spellacy to assign the proceeding by lot to a duly elected judge of the court of common pleas. The court of appeals granted appellees' motion for summary judgment and dismissed the complaint concluding that appellant failed to satisfy the requisite elements necessary for the issuance of either writ.

The cause is now before this court on an appeal as of right.

Sanford J. Berger, pro se, and Robert M. Fertel, Cleveland, for appellant.

John T. Corrigan, Pros. Atty., Thomas P. Gill and Patrick Carroll, Asst. Pros. Attys., for appellees.

PER CURIAM.

This court has consistently held that in order for a writ of mandamus to issue the relator must demonstrate "(1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law." State, ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 42, 374 N.E.2d 641 ; State, ex rel. Heller, v. Miller (1980), 61 Ohio St.2d 6, 399 N.E.2d 66 , paragraph one of the syllabus; State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42, 399 N.E.2d 81 , paragraph one of the syllabus.

In order for a writ of prohibition to lie, the following three requirements must be satisfied: "(1) the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power; (2) the exercise of such power is unauthorized by law; and (3) it will result in injury for which no other adequate remedy exists." Ohio Bell v. Ferguson (1980), 61 Ohio St.2d 74, 76, 399 N.E.2d 1206 ; State, ex rel. Rose Hill Burial Park, v. Moser (1982), 1 Ohio St.3d 13, 14, 437 N.E.2d 300; State, ex rel. Dow Chemical Co. v. Court (1982), 2 Ohio St.3d 119, 120, 443 N.E.2d 143.

In support of the request for a writ of mandamus, appellant argues that pursuant to C.P.Sup.R. 4, ¹ Judge Spellacy was required to have the remanded proceeding assigned by lot to a duly elected judge of the court of common pleas. Assuming, arguendo, that the proceeding was improperly transferred from Judge Sweeney, in spite of C.P.Sup.R. 3(B) ² and 9, ³ which enable the administrative judge to implement procedures to facilitate the prompt disposition of cases, appellant has failed to demonstrate the absence of a plain and adequate remedy in the ordinary course of the law.

It is firmly established that the writ of mandamus will not issue " * * * where the relator has or had available a clear, plain and adequate remedy in the ordinary course of the law." State, ex rel. Sibarco Corp., v. City of Berea (1966), 7 Ohio St.2d 85, 88, 218 N.E.2d 428 ; State, ex rel. Leis, v. Outcalt (1980), 62 Ohio St.2d 331, 333, 405 N.E.2d 725 ; State, ex rel. Bargar, v. Ross (1978), 53 Ohio St.2d 18, 19, 371 N.E.2d 841 ; Lippert v. Engle (1977), 52 Ohio St.2d 67, 369 N.E.2d 1044 ; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631 . Moreover, it is axiomatic that a " * * * discretionary right of appeal * * * [constitutes] a sufficiently plain and adequate remedy in the ordinary course of the law." State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St.2d 121, 122, 403 N.E.2d 989 .

Since appellant possesses an adequate remedy at law by way of appeal to the court of appeals in which he may contest the issue of an improper assignment, the court below properly dismissed the complaint for a writ of mandamus.

Likewise, the availability of an appeal is fatal to appellant's request for a writ of prohibition. This court has repeatedly held that "[p]rohibition is not concerned with the exercise of discretion by an inferior tribunal having jurisdiction of the subject matter and the parties in a cause before it. That issue is for the determination of a reviewing court," even if errors or defects exist in the proceedings. State, ex rel. Staton, v. Court (1965), 5 Ohio St.2d 17, 22, 213 N.E.2d 164 ; State, ex rel. Gross, v. Marshall (1974), 39 Ohio St.2d 92, 94, 314 N.E.2d 170 ; State, ex rel. Dow Chemical Co., v. Court, supra, at 121, 443 N.E.2d 143. In addition, "prohibition cannot be used as a substitute for appeal," which is precisely the fashion in which appellant seeks to employ the writ. State, ex rel. Crebs, v. Court of Common Pleas (1974), 38 Ohio St.2d 51, 52, 309 N.E.2d 926 .

Appellant also contests the lawfulness of the appointment of Judge McMonagle, a retired judge, contending that Section 6(A)(3), Article IV of the Ohio Constitution requires a trial judge to have been elected and currently serving his term. That section provides in part:

"The judges of the courts of common pleas and the divisions thereof shall be elected by the electors of the counties, districts, or, as may be provided by law, other subdivisions, in which their respective courts are located * * *."

We reject appellant's contention and conclude that the...