State ex rel. Frederick Sullivan v. Sheriff Gerald T. Mcfaul, Case

• Decision Date: 20 July 2000
• Docket Number: 00-LW-3571,77570
• Parties: STATE OF OHIO, EX REL. FREDERICK SULLIVAN, Relator v. SHERIFF GERALD T. McFAUL, Respondent CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, EX REL. FREDERICK SULLIVAN Relator v. SHERIFF GERALD T. McFAUL, Respondent

No. 77570.

00-LW-3571 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

July 20, 2000

PETITION FOR WRIT OF PROHIBITION

For Relator: BRADLEY L. GREENE, 1370 Ontario Street, 1700 Standard Building, Cleveland, Ohio 44113.

For Respondent: WILLIAM D. MASON, Cuyahoga County Prosecutor CAROL SHOCKLEY, KRISTEN LUSNIA, Assistant Prosecuting Attorneys, The Justice Center, Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.

OPINION

TERRENCE O'DONNELL, JUDGE

Relator, Frederick Sullivan ("Sullivan"), pled guilty to two counts of attempted promoting prostitution and one count of attempted abduction in State v Sullivan, Cuyahoga County Court of Common Pleas Case Nos. CR-366748, 367600 and 368252. The court of common pleas imposed Sullivan's sentence in March 1999. At the time of sentencing, the court of common pleas found in Case No. CR368252 - in which Sullivan was convicted of attempted abduction - that Sullivan is a sexually oriented offender. In December 1999, the court of common pleas denied Sullivan's motion to rescind the sexually oriented offender classification. Sullivan has not filed an appeal from Case Nos. CR-366748, 367600 and 368252.

In this action in prohibition, Sullivan requests that this court prohibit respondent sheriff from accepting or requiring relator's sexually oriented offender registration. The sheriff has filed a motion to dismiss or, in the alternative, for summary judgment. For the reasons stated below, we grant respondent's motion and deny Sullivan's request for relief in prohibition.

The criteria for prohibition are well-established.

In order to be entitled to a writ of prohibition, [relator] Wright had to establish that (1) the [respondent] Registrar is about to exercise judicial or quasi-judicial power, (2) the exercise of such power is unauthorized by law, and (3) denial of the writ will cause injury to Wright for which no other adequate remedy in the ordinary course of law exists. State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 336, 686 N.E.2d 267, 268.

State ex rel. Wright v. Ohio Bur. of Motor Vehicles (1999), 87 Ohio St.3d 184, 185, 718 N.E.2d 908. Respondent argues that the sheriff's duties regarding sexually oriented offender registration does not require the exercise of judicial or quasi-judicial power. We agree.

In State v. Cook (1998), 83 Ohio St.3d 404, 700 N.E.2d 570, certiorari denied in Cook v. Ohio (1999), 525 U.S. 1182, 119 S.Ct. 1122, 143 L.Ed.2d 116, the Supreme Court of Ohio considered various constitutional challenges to R.C. Chapter 2950 and discussed its provisions in detail.

The registration provision of R.C. Chapter 2950, R.C. 2950.04, applies to all offenders in all three classifications [sexually oriented offenders, habitual sex offenders and sexual predators] and became effective July 1, 1997. The requirement applies to offenders sentenced on or after that date, regardless of when the offense occurred, R.C. 2950.04(A)(1), (2), and (3). Offenders must register with their county sheriff and provide a current home address, the name and address of the offender's employer, a photograph, and any other information required by the Bureau of Criminal Identification and Investigation. R.C. 2950.04(A) and (C). * * *.

Offenders must periodically verify their current home address. R.C. 2950.06. How often they must do so depends on the classification to which they belong. R.C. 2950.06(B). Sexually oriented offenders must verify their residential address with the county sheriff where they reside or are temporarily domiciled annually for ten years. R.C. 2950.07(B)(3) and 2950.06(B)(2). * * *

If the underlying offense was a felony, failure to comply with the registration and verification provisions is a felony. R.C. 2950.06(G)(1) and 2950.99.

Id. at 408.

Sullivan argues that the sheriff is exercising quasi-judicial power by registering persons classified as sexually oriented offenders under R.C. 2950.04.

With respect to the first requirement, respondents claim that they are not exercising either judicial or quasi-judicial power. Quasi-judicial authority is defined as " the power to hear and to determine controversies between the public and individuals which require a hearing resembling a judicial trial * * *.'" State ex rel. Hensley v. Nowak (1990), 52 Ohio St.3d 98, 99, 556 N.E.2d 171, 173, citing State ex rel. Methodist Book Concern v. Guckenberger (1937), 57 Ohio App. 13, 16-17, 9 O.O. 30, 31, 11 N.E.2d 277, 279, affirmed (1937), 133 Ohio St. 27, 9 O.O. 432, 10 N.E.2d 1001; State ex rel. Delaware Cty. Amphitheater Action Commt. v. Ohio Dept. of Liquor Control (1994), 94 Ohio App.3d 680, 682, 641 N.E.2d 764, 765.

State ex rel. Youngstown v. Mahoning Cty. Bd. Of Elections (1995),

72 Ohio St.3d 69, 71, 647 N.E.2d 769.

In Novak v. McFaul (Oct. 26, 1999), Cuyahoga App. No. 77132,

unreported, relator Novak requested that this court issue a writ of

prohibition against the sheriff to prevent him from evicting Novak.

In the present case the sheriff is not about to exercise judicial authority. Issuing an eviction notice or effecting a writ of possession is an administrative act and not a judicial act. State ex rel. Greenwood v. Baals (1940), 66 Ohio App 255, 31 N.E.2d 244 - the issuance by a justice of the peace of a writ of restitution is a ministerial act. See also, Bank One, Cincinnati v. Wait (1996), 110 Ohio App.3d 460, 674 N.E.2d 759.

Id. at 4. As is the case with an eviction, the sheriff - by registering a sexually oriented offender - is merely discharging a duty prescribed by law. He is not acting to "determine controversies between the public and individuals which require a hearing resembling a judicial trial." Youngstown, supra.

Furthermore, R.C. 2950.07(G) (2) (b) provides that the sheriff shall seek a warrant if a person fails to verify a current residence address as required by R.C. 2950.07(F). Obviously, the court would exercise judicial power by determining...