State, ex rel. Kirtz, v. Corrigan

• Decision Date: 14 August 1991
• Docket Number: No. 90-1303,90-1303
• Citation: 575 N.E.2d 186,61 Ohio St.3d 435
• Parties: The STATE, ex rel. KIRTZ, Appellant, v. CORRIGAN, Judge, Appellee.
• Court: Ohio Supreme Court

Page 435

61 Ohio St.3d 435

575 N.E.2d 186

The STATE, ex rel. KIRTZ, Appellant, v. CORRIGAN, Judge, Appellee.

No. 90-1303.

Supreme Court of Ohio.

Submitted May 6, 1991.

Decided Aug. 14, 1991.

Russell R. Kirtz, pro se.

Daniel O. Corrigan, Judge, pro se.

PER CURIAM.

We adopt the decision of the court of appeals journalized May 22, 1990, attached as an appendix to this opinion, and affirm its judgment for the reasons stated therein.

Judgment affirmed.

MOYER, C.J., and SWEENEY, HOLMES, DOUGLAS, WRIGHT, HERBERT R. BROWN and RESNICK, JJ., concur.

WRIGHT, Justice, concurring.

I concur with the majority opinion but write separately to stress that this is the second appeal in what appears to be a wholly unjustified attack on the respondent in this case. There is no question that relator is directly attacking what has always been a purely discretionary act by the trial court. If relator has some problem with this trial judge's

pursuit of his duties, he should file his complaint with an appropriate body, not clog the system with unwarranted litigation.

APPENDIX

KRUPANSKY, Presiding Judge.

In this action in mandamus and prohibition, relator avers in his complaint as follows:

He is an attorney admitted to practice law in Ohio and respondent is a judge of the Court of Common Pleas for Cuyahoga County. Complaint, pars. 1 and 2. For approximately three years preceding the filing of the complaint, relator had also been on the list of approved trial counsel maintained by the Administrative Judge pursuant to Cuyahoga County Court of Common Pleas Loc.R. 33. Complaint, par. 7. Common Pleas Loc.R. 33 establishes a list of approved attorneys from among whom assignments to criminal cases are ordinarily made.

On March 17, 1988, the arraignment room judge assigned relator to serve as defense counsel in State v. Linda Ezell, Cuyahoga County Court of Common Pleas Case No. CR-223752. Complaint, par. 8. On March 28, 1988, however, respondent's bailiff informed relator that respondent had removed relator as counsel for Ms. Ezell. Complaint, par. 10. Respondent had removed relator as counsel on two previous occasions within the previous two years. Complaint, par. 13. All of these removals were without explanation. Complaint, par. 13.

When respondent was arraignment room judge during August 1987, December 1986 and October 1985, respondent assigned from six to eleven cases to each of eight attorneys. Complaint, par. 15. Respondent assigned most of the other counsel on the list three times or less. Complaint, par. 16. Respondent did not assign relator as counsel for any indigent defendants while respondent was arraignment room judge during August 1987, December 1986 and October 1985. Complaint, par. 17.

Relator, in his prayer for relief, prays as follows:

"A. That a [sic ] Alternative Writ be issued, directing Respondent to assign Relator as attorney for defendant in State v. Linda Ezell, Cuyahoga County Court of Common Pleas case number CR 223752, forthwith, or appear before this Court at a specified time and show cause why Respondent has not done so.

"B. That a Writ of Mandamus be issued, directing Respondent to assign Relator as attorney for defendant in State v. Linda Ezell, Cuyahoga County Court of Common Pleas case number CR 223752.

"C. That a Writ of Prohibition be issued, restraining Respondent from removing Relator as assigned counsel for indigent defendants who appear in Respondent's court, except 'in the interest of justice and on special occassion' [sic ] as that term is used in Local Rule 33.

"D. That a Writ of Prohibition be issued, restraining Respondent when Respondent is Arrignment [sic ] Judge, from assigning attorneys to represent indigent defendants, except by the procedures set forth in Local Rule 33.

"E. Award costs."

By entry dated May 4, 1988, this court sua sponte dismissed this action for failure to state a claim upon which relief can be granted. In State, ex rel. Kirtz, v. Corrigan (1989), 47 Ohio St.3d 45 , however, the Supreme Court found that relator had stated a claim for relief and both reversed this court's judgment and remanded this action to this court for further proceedings.

Respondent has filed a Motion to Dismiss, or in the Alternative, for Summary Judgment. * * * In support of his Motion for Summary Judgment, respondent has submitted a copy of the docket in the Ezell case, in which the defendant pled guilty to one count and was sentenced by respondent. Respondent has also filed various affidavits which state that relator exhibited unprofessional conduct in March, 1987 during pretrial proceedings in a criminal matter (State v. Janet L. Baron, Cuyahoga County Court of Common Pleas Case No. CR-212692B) assigned to respondent. Relator through his own affidavit contradicts the assertions that he was "loud," "belligerent," "obnoxious," etc.

Relator also has filed copies of what purport to be portions of the treasurer's report of the 1984 campaign committee formed on respondent's behalf. Relator contends that these reports, in conjunction with information regarding attorneys whom respondent had repeatedly assigned, demonstrate that respondent "trade[d] cases for cash." Relator's Brief in Support of Motion to Continue Ruling on Respondent's Motion for Summary Judgment, at page 1. Respondent argues, however, that relator has excluded from the copies of reports the names of other attorneys who did not receive assignments. Respondent has also filed copies of reports from the 1986 campaign committee of a former member of the court of common pleas who had assigned relator as counsel on at least five occasions between April, 1986 and August, 1986. Respondent also submitted along with this information financial reports of the former judge showing relator had contributed to that judge's campaign for election both in the primary and general election.

Loc.App.R. 1(B) provides:

"The Rules of Civil Procedure, and applicable statutes, including costs, as supplemented by these rules, shall govern procedure in original actions filed in this court." See also Loc.App.R. 8(B)(1). Clearly, the Rules of Civil Procedure apply in original actions in mandamus and prohibition which are filed in this court.

Civ.R. 56(C) sets forth the standard for determining motions for summary judgment and provides in part:

"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."

Admittedly, the evidence presented by relator and respondent is patently conflicting with regard to the propriety of relator's conduct during pretrial proceedings in Baron. These facts are not, however, material as required by Civ.R. 56(C), since the controversy herein is whether a writ of mandamus and/or prohibition should issue.

The fundamental criteria for issuing a writ of mandamus are well-established:

"In order to be entitled to a writ of mandamus, relator must show (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. National City Bank, v. Bd. of Education (1977), 52 Ohio St.2d 81 [6 O.O.3d 288, 369 N.E.2d 1200]." State, ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 42 [8 O.O.3d 36, 37, 374 N.E.2d 641, 641]. Of course, all three of these requirements must be met in order for mandamus to lie.

Relator requests relief in mandamus solely with regard to his being assigned as counsel in Ezell. Yet, as was noted above, Ms. Ezell has already pleaded guilty and respondent has sentenced her. Relator's request for relief in mandamus is, therefore, moot.

Furthermore, even if Ezell were still pending, relator has not set forth any authority for the proposition that he would have a clear legal right to being reinstated as counsel for Ms. Ezell. Likewise, he has not established that respondent would have a clear legal duty to reinstate him.

Relator's claim in mandamus fails for other reasons. R.C. 2731.03 provides:

"The writ of mandamus may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion." In State, ex rel. Butler, v. Demis (1981), 66 Ohio St.2d 123 [20 O.O.3d 121, 420 N.E.2d 116], the trial court had refused to assign as counsel the attorney of the defendant's choosing. The Supreme Court stated:

"We hold that the appointment of counsel by the court to represent indigent parties, where such appointment and representation is constitutionally mandated, is a necessary function of the court in the exercise of its jurisdiction. * * *.

"Pursuant to this inherent power, a trial judge may decide not to appoint a particular attorney to represent an indigent party in a proceeding before the court. The most obvious reason for which a trial judge may refuse to appoint particular counsel is the competency or experience of counsel, a circumstance which the judge is more capable of evaluating. * * * Respondent Demis, as trial judge, possesses the inherent power to supervise the appointment of counsel. * * *

"Where a court has discretion to act, mandamus will not lie to control the exercise of that discretion, even...