State, ex rel. Hare v. Russell
| Citation | 2022 Ohio 1932 |
| Decision Date | 08 June 2022 |
| Docket Number | C-210344 |
| Parties | STATE OF OHIO, EX REL. BRANDON HARE, Relator, v. THE HONORABLE HEATHER S. RUSSELL, Respondent. |
| Court | United States Court of Appeals (Ohio) |
Original Action in Prohibition
Judgment of the Court: Writ of Prohibition Granted.
Raymond T. Faller, Hamilton County Public Defender, and Krista M. Gieske, Assistant Public Defender, for Relator
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Respondent.
{¶1} Relator Brandon Hare was charged with one count of assault for allegedly hitting his ex-girlfriend, Regina Pugh, and pushing her to the ground. The matter proceeded to a bench trial on May 3, 2021, before Respondent Judge Heather S Russell. There was a disagreement between defense counsel and Judge Russell that led Judge Russell to orally declare a mistrial and recuse herself. On the "Judge's Sheet "[1] Judge Russell wrote, "Court recuses - rerolls," but did not explain her recusal or state that a mistrial had been declared.
{¶2} The case was transferred to Judge Gwen Bender. Hare moved to dismiss the assault charge on double-jeopardy grounds. A hearing on the motion to dismiss was held on May 27, 2021. Judge Bender denied the motion, finding that Judge Russell had declared a mistrial because she no longer felt that she could remain fair and impartial toward Hare due to "butting heads" with defense counsel.[2] That same day, the state filed a motion requesting that Judge Russell issue a nunc pro tunc entry "clarifying that a mistrial was declared on this matter." Judge Russell issued a nunc pro tunc entry on June 1, 2021, wherein she wrote on the Judge's Sheet, "Based on defense attorney's statements, the court declares a mistrial, recuses, and requests that the case be re-rolled."
{¶3} Hare has filed a "verified complaint for writ of prohibition" requesting that this court vacate the June 1, 2021 nunc pro tunc judgment entry entered by Judge Russell, and restrain Judge Russell from entering any further orders related to the case. Respondent filed an answer denying the allegations. Both parties have moved for summary judgment.
{¶4} A petition seeking a writ of prohibition is a civil action and may be resolved on summary judgment. See State ex rel. New Prospect Baptist Church v. Ruehlman, 1st Dist. Hamilton No. C-180591, 2019-Ohio-5263, ¶ 8. Summary judgment is appropriate when "there exists no genuine issue of material fact, the party moving for summary judgment is entitled to judgment as a matter of law, and the evidence, when viewed in favor of the nonmoving party, permits only one reasonable conclusion that is adverse to that party." Collett v. Sharkey, 1st Dist. Hamilton No. C-200446, 2021-Ohio-2823, ¶ 8.
{¶5} "Prohibition is an extraordinary writ issued to prevent a court or tribunal from usurping or exercising judicial power or judicial functions which have not been conferred upon it by law." State ex rel. Daily Reporter v Court of Common Pleas of Franklin Cty., 56 Ohio St.3d 145, 145, 565 N.E.2d 536 (1990). "The writ of prohibition is a high prerogative writ to be used with great caution in the furtherance of justice and only where there is no other regular, ordinary, and adequate remedy." State ex rel. Stark v. Summit Cty. Court of Common Pleas, 31 Ohio St.3d 324, 325, 511 N.E.2d 115 (1987).
{¶6} To demonstrate entitlement to a writ of prohibition, Hare must establish that "(1) [Judge Russell] is about to or has exercised judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of law." See State ex rel. Fiser v. Kolesar, 164 Ohio St.3d 1, 2020-Ohio-5483, 172 N.E.3d 1, ¶ 7, quoting State ex rel. Balas-Bratton v. Husted, 138 Ohio St.3d 527, 2014-Ohio-1406, 8 N.E.3d 933, ¶ 15. The second and third elements are satisfied where the relator demonstrates that the lack of jurisdiction is "patent and unambiguous." Kolesar at ¶ 7.
{¶7} Respondent argues there is no indication that she is about to exercise judicial power in the case. She contends that she issued the nunc pro tunc entry to simply clarify her relinquishment of power in the case.
{¶8} A writ of prohibition is typically used as a preventative tool, but it may be used to vacate prior "jurisdictionally unauthorized actions." See State ex rel. Stern Pros. Atty. v. Mascio, 81 Ohio St.3d 297, 298-299, 691 N.E.2d 253 (1998) ; State ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326, 330, 285 N.E.2d 22 (1972) ("a court which has jurisdiction to issue the writ of prohibition as well as the writs of procedendo and mandamus has plenary power, not only to prevent excesses of lower tribunals, but to correct the results thereof and to restore the parties to the same position they occupied before the excesses occurred").
{¶9} Thus, despite the fact that there is no indication that Judge Russell is about to exercise judicial power, a writ of prohibition may still be issued to vacate the June 1, 2021 entry if she lacked jurisdiction to enter it. See Cummins & Brown, LLC v. Cummins, 1st Dist. Hamilton No. C-200166, 2021-Ohio-428, ¶ 6 ().
{¶10} "Jurisdiction" refers to three, distinct concepts: "jurisdiction over the subject matter, jurisdiction over the person, and jurisdiction over a particular case." WBCMT 2007-C33 Office 7870, L.L.C. v. Breakwater Equity Partners, L.L.C., 2019-Ohio-3935, 133 N.E.3d 607, ¶ 8 (1st Dist). Jurisdiction over the case connotes "the court's authority to proceed or rule on a case that is within the court's subject-matter jurisdiction." Id. at ¶ 9. A court's judgment is void when it lacks subject-matter jurisdiction; lack of jurisdiction over the case merely renders the judgment voidable. Id. at ¶ 33.
{¶11} Judge Russell recused herself on May 3 and lost jurisdiction over the case thereafter. Therefore, her June 1 nunc pro tunc entry was voidable, subject to a timely objection. See Tissue v. Tissue, 8th Dist. Cuyahoga No. 83708, 2004-Ohio-5968, ¶ 13 (); Mascio, 81 Ohio St.3d at 300, 691 N.E.2d 253 (issuing a writ of prohibition holding that all of a judge's orders in the case after his recusal were void and preventing the judge from proceeding in the case until the Chief Justice had ruled on the affidavit of disqualification filed by the relator).
{¶12} Hare's filing of the complaint for a writ of prohibition 14 days after Judge Russell's nunc pro tunc entry amounted to an objection to Judge Russell's issuance of the nunc pro tunc entry.
{¶13} Respondent argues that the nunc pro tunc entry related back to May 3 when she orally announced the mistrial and issued a written entry recusing herself. "Because a nunc pro tunc order is an order done 'now for then,' 'by its very nature, it applies retrospectively to the judgment it corrects.'" In re E.B., 1st Dist. Hamilton No. C-150351, 2016-Ohio-1507, ¶ 10, quoting State v. Lester, 130 Ohio St.3d 303, 2011- Ohio-5204, 958 N.E.2d 142, ¶ 19. However, in In re E.B., this court held that the trial court lacked jurisdiction at the time it issued its first nunc pro tunc entry, and therefore the entry was a nullity. In re E.B. at ¶ 6.
{¶14} Crim.R. 36 allows the trial court to issue nunc pro tunc entries "at any time," but it would be incorrect to say that Crim.R. 36 confers jurisdiction on a judge when she has none. See State v. Aarons, 8th Dist. Cuyahoga No. 110313, 2021-Ohio- 3671, ¶ 22 (). Because Judge Russell lost jurisdiction over the case once she recused herself, she lost the ability to issue any further orders in the case, including nunc pro tunc entries. Judge Russell patently and unambiguously lacked jurisdiction to issue the June 1 nunc pro tunc entry.
{¶15} Respondent argues that Hare has an adequate remedy at law through the direct appeal of the denial of his motion to dismiss. Respondent claims that this court can disregard the nunc pro tunc entry when deciding Hare's direct appeal.
{¶16} However, there is an exception to the third element. Hare is not required to establish that he has no adequate remedy at law if he demonstrates that Judge Russell patently and unambiguously lacked jurisdiction to issue the nunc pro tunc entry. See State ex rel. Thomas v. McGinty, 164 Ohio St.3d 167, 2020-Ohio-5452, 172 N.E.3d 824, ¶ 15; Gusweiler, 30 Ohio St.2d at 329, 285 N.E.2d 22 ("If an inferior court is without jurisdiction whatsoever to act, the availability or adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction by a superior court to prevent usurpation of jurisdiction by the inferior court.").
{¶17} There is a question as to whether this exception relates only to...
To continue reading
Request your trial