State ex rel. Russo v. McDonnell, 2005-2130.
| Decision Date | 12 July 2006 |
| Docket Number | No. 2005-2130.,2005-2130. |
| Parties | The STATE ex rel. RUSSO, Judge, v. McDONNELL, Judge. |
| Court | Ohio Supreme Court |
Kahn Kleinman, L.P.A., Robert A. Zimmerman, Michael H. Diamant, and Mark R. Jacobs, Cleveland, for relator.
Kenneth J. Fisher Co., L.P.A., and Kenneth J. Fisher, Cleveland, for respondent.
Philip J. Fulton Law Office and Philip J. Fulton, Columbus; and Paul W. Flowers Co., L.P.A., and Paul W. Flowers, Cleveland, urging denial of the writ for amicus curiae Ohio Academy of Trial Lawyers.
Weston, Hurd, Fallon, Paisley & Howley, L.L.P., and Gregory E. O'Brien, Cleveland, urging denial of the writ for amicus curiae Ohio Academy of Civil Trial Lawyers.
{¶ 1} On November 14, 2005, relator, Cuyahoga County Court of Common Pleas Judge Nancy Margaret Russo, filed this action seeking a writ of prohibition to prevent Judge Richard J. McMonagle, who was then the administrative judge of the Cuyahoga County Court of Common Pleas, from facilitating jury trials in civil cases referred to private judges pursuant to R.C. 2701.10 and Gov.Jud.R. VI and to prevent him from permitting the use of court facilities, equipment, resources, or personnel in any such proceeding. We grant the writ regarding the conduct of jury trials but deny the writ regarding court facilities.
{¶ 2} Under Sup.R. 4(B), the administrative judge has "full responsibility and control over the administration, docket, and calendar of the court or division" and is "responsible to the Chief Justice of the Supreme Court in the discharge of his or her duties." In exercising this authority, the administrative judge implemented a policy entitled "Court Policy Regarding Private Judging," specifying that "jury trials will be permitted with private judges" under the following conditions:
{¶ 3} "1) Notification to the Clerk of the Court of Common Pleas must be made at least six weeks prior to the date of trial;
{¶ 4} "2) Notice to the Administrative Judge must be made contemporaneously with notice to the Clerk of Courts;
{¶ 5} "3) The Administrative Judge will then order an additional 50 jurors to be called by the Jury Commissioner to help alleviate any possible burden on other judges' jury trials;
{¶ 6} "4) Trials by a private judge may only commence on a Wednesday; and
{¶ 7} "5) The Court will endeavor to make courtrooms available, but cannot guarantee the use of a County courtroom.
{¶ 8}
{¶ 9} The administrative judge cited R.C. 2701.10 as the authority for the policy. R.C. 2701.10 permits the consensual referral of civil actions to retired judges under certain circumstances.
{¶ 10} Relator is the judge assigned in Peffer v. Cleveland Clinic Found., Cuyahoga C.P. case No. CV-03-496855. The parties in Peffer entered into an agreement to refer the case in its entirety for a jury trial under R.C. 2701.10. After relator refused to refer the case, the administrative judge ordered the referral to a retired judge under R.C. 2701.10 for the case to proceed to jury trial. The administrative judge specified that "pursuant to Superintendence Rule 4(B)(1) this court orders that the case proceed to a jury trial before retired Judge Peggy Foley Jones" and that relator
{¶ 11} The Court of Appeals for Cuyahoga County subsequently granted the plaintiffs in Peffer a writ of prohibition to prevent relator from proceeding in the case because the administrative judge's orders "unambiguously terminated [relator's] authority over the underlying case and she is without power or authority to act further on that case." State ex rel. Peffer v. Russo, Cuyahoga App. No. 87149, 2005-Ohio-5556, 2005 WL 2698574, ¶ 4. The court of appeals did not determine whether R.C. 2701.10 authorized the referral for a jury trial.
{¶ 12} Austin v. MetroHealth Med. Ctr., Cuyahoga C.P. case No. CV-04-538701, a case initially assigned to Judge John D. Sutula, is one of several other cases in the Cuyahoga County Common Pleas Court in which the parties agreed to refer the case to a retired judge for a jury trial under R.C. 2701.10. According to relator, Judge Sutula refused to refer the case, based on his belief that R.C. 2701.10 does not authorize jury trials.
{¶ 13} The Court of Appeals for Cuyahoga County granted the parties in Austin an alternative writ of mandamus on their claim to compel the trial court judge to refer the case to a retired judge for jury trial and prohibited the trial court judge from taking any further action while the mandamus case was pending.
{¶ 14} On November 23, 2005, the court of appeals dismissed the complaint because "R.C. 2701.10 and Gov.Jud.R. VI do not contain any reference to a jury trial" and it could "find no reference to the ability of a voluntarily retired judge to conduct a jury trial." State ex rel. MetroHealth Med. Ctr. v. Sutula, Cuyahoga App. No. 87184, 2005-Ohio-6243, 2005 WL 3120209, ¶ 8, 10.
{¶ 15} Relator claims that the administrative judge directed the assignment of juries to private proceedings under R.C. 2701.10. According to relator, the administrative judge did so even though there was often an insufficient number of jurors to hear cases before elected judges.
{¶ 16} The administrative judge also permitted common pleas courtrooms and other rooms operated and funded by the county to be used for proceedings under R.C. 2701.10, including trials and pretrial conferences. Pursuant to the policy implemented by him, the administrative judge authorized the assignment of common pleas court reporters to these proceedings. According to relator, the policy consistently resulted in a shortage of court reporters for common pleas court judges to conduct business in their own courtrooms.
{¶ 17} In addition, the administrative judge allowed the use of other court personnel and resources, e.g., security, copying, and utilities, for these proceedings.
{¶ 18} On November 14, 2005, relator filed this action for a writ of prohibition to prevent the administrative judge from "compelling or facilitating jury trials in proceedings purportedly submitted or referred" under R.C. 2701.10. Relator also requested a writ of prohibition to prevent the administrative judge from "directing or permitting the use of facilities, equipment, resources, utilities and/or personnel of the Cuyahoga County Court of Common Pleas in any proceedings" under R.C. 2701.10. On December 7, the administrative judge answered and moved for judgment on the pleadings. On December 19, relator filed a memorandum in opposition to the administrative judge's motion.
{¶ 19} On December 28, 2005, we ordered oral argument for January 24, 2006. On January 5, 2006, we received notification that Judge Nancy R. McDonnell has now succeeded Judge McMonagle as the administrative judge of the common pleas court. Pursuant to S.Ct.Prac.R. X(2) and Civ.R. 25(D)(1), Judge McDonnell is automatically substituted as the respondent in this case. The Ohio Academy of Trial Lawyers and Ohio Association of Civil Trial Attorneys filed an amici curiae brief in support of the administrative judge.
{¶ 20} In accordance with S.Ct. Prac.R. X(5), we must determine whether dismissal, an alternative writ, or a peremptory writ is appropriate. If the pertinent facts are uncontroverted and it appears beyond doubt that relator is entitled to the requested writ, we will grant a peremptory writ. State ex rel. Morenz v. Kerr, 104 Ohio St.3d 148, 2004-Ohio-6208, 818 N.E.2d 1162, ¶ 13.
{¶ 21} In order to be entitled to the requested extraordinary relief in prohibition, relator must establish that (1) the administrative judge is about to exercise judicial power, (2) the exercise of this power is not authorized by law, and (3) denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. State ex rel. Brady v. Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, 832 N.E.2d 1202, ¶ 7. The administrative judge has exercised and continues to exercise judicial authority by authorizing jury trials in proceedings before a retired judge under R.C. 2701.10 and Gov. Jud.R. VI and ordering the use of court resources in these proceedings. The administrative judge does not deny that judicial power is being exercised.
{¶ 22} As to the remaining writ requirements, "`[i]f a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions.'" State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 102 Ohio St.3d 349, 2004-Ohio-3208, 810 N.E.2d 953, ¶ 14, quoting State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12. Thus, "`[i]n cases of a patent and unambiguous lack of jurisdiction, the requirement of a lack of an adequate remedy of law need not be proven because the availability of alternate remedies like appeal would be immaterial.'" Morenz, 104 Ohio St.3d 148, 2004-Ohio-6208, 818 N.E.2d 1162, ¶ 14, quoting State ex rel. State v. Lewis, 99 Ohio St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195, ¶ 18.
{¶ 23} The administrative judge authorized jury trials before retired judges under R.C. 2701.10. ...
To continue reading
Request your trial
-
McClain v. State
...Assembly intends that a case may be tried by a jury, it has manifested its intent with appropriate language." State ex rel. Russo v. McDonnell , 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145, ¶ 46 (holding that the requirement in R.C. 2701.10 that the "judge" to whom a case is referred......
-
Wilson v. Kasich
...term “if.” But this interpretation changes the meaning of Section 7(D), which we cannot do. See State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145, ¶ 50 (in construing statutes, court cannot add or delete language); State ex rel. LetOhioVote.org v. Brunner,......
-
McClain v. State
...intends that a case may be tried by a jury, it has manifested its intent with appropriate language." State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145, ¶ 46 (holding that the requirement in R.C. 2701.10 that the "judge" to whom a case is referred "try all ......
-
State ex rel. v. Brunner
...state in making that appointment. {¶ 26} In construing statutes, "`our paramount concern is legislative intent.'" State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145, ¶ 37, quoting State ex rel. Musial v. N. Olmsted, 106 Ohio St.3d 459, 2005-Ohio-5521, 835 N......