State ex rel. Richard Davet v. Judge Raymond L. Pianka, Case
| Decision Date | 16 September 1999 |
| Docket Number | 76337,99-LW-4089 |
| Parties | STATE EX REL. RICHARD DAVET, Relator v. JUDGE RAYMOND L. PIANKA, Respondent CASE |
| Court | Ohio Court of Appeals |
PETITION FOR WRIT OF PROHIBITION
For relator: RICHARD F. DAVET, pro se, P.O. Box 10092 Cleveland, Ohio 44110.
For respondent: HILARY S. TAYLOR, Esq., Weston, Hurd, Fallow Paisley & Howley, 2500 Terminal Tower, 50 Public Square Cleveland, Ohio 44113-2241.
CORNELL P. CARTER, Law Director, Room 106 City Hall, 601 Lakeside Avenue, Cleveland, Ohio 44113.
SWEENEY JAMES D., J.
On April 26, 1999, the relator, Richard Davet, applied for a writ of prohibition and an alternative writ of prohibition against the respondent, Judge Raymond L. Pianka of the Cleveland Municipal Housing Court. In the underlying case, City of Cleveland v. Richard Davet, Cleveland Municipal Court Case No. 97CRB020627, the City of Cleveland charged Mr. Davet with housing code violations under Cleveland Ordinances Sections 3101.10(A), 3101.10(C) and 3101.01(E) (2). These sections refer to general maintenance, including removing high weeds, repairing windows and gutters, repointing brick walls, and removing damaged signs. The gravamen of this prohibition complaint,is that the charging instrument (a copy of which is attached) is so defective that it fails to vest any jurisdiction in any court, including the Cleveland Municipal Court.
On May 14, 1999, the respondent, through his attorney,[1] moved for summary judgment. Mr. Davet on May 26 filed his objections to this motion for summary judgment as well as his own motion for summary judgment. He also moved to strike the respondent's motion because the respondent's attorneys were not properly before this court because they had not filed a notice of appearance and because they did not properly represent the judge. Mr. Davet argues on this latter point that the private attorneys submitted pleadings before the contract between them and the City of Cleveland to represent the judge had been finalized; thus, they had no authority to submit the pleadings. on June 4, 1999, the respondent filed a brief in opposition. The court has reviewed all the materials and conducted its own examination of the law, and for the following reasons grants the respondent's motion for summary judgment and denies the applications for a writ and an alternative writ of prohibition.[2]
The record in question, complaint and summons, resembles a traffic ticket. The heading reads "DEPARTMENT OF COMMUNITY DEVELOPMENT/ DIVISION OF BUILDING AND HOUSING." It then has a number "BVH 16258." Below that are "fill in" lines for the defendant's name, address, business and home telephone numbers and social security number, as well as boxes for the defendant's physical description. In Mr. Davet's complaint and summons the areas for physical description and social security number are blank. This top part also contains check off lines for personal service or service by mail; neither are checked in this matter.
The next section is headed: "TO THE DEFENDANT: COMPLAINT." It begins with a line for the inspector's name and then reads as follows: "Having been duly cautioned and sworn disposes (sic) and
says that, on or about ___________ 19__ at ____ A.M./P.M. at ____________ City of Cleveland, State of Ohio, you did commit the following violation(s):." This section then has lines to list Cleveland Municipal Code sections; there is a box in which the inspector may check off whether the violations are building, housing or zoning code violations of the City of Cleveland. In Mr. Davet's case three code sections are listed, but the inspector checked nothing in the box. This section then provides: "DESCRIPTION OF OFFENSE(S) : FAILURE TO CORRECT VIOLATIONS # ______
AS STATED IN VIOLATION NOTICE DATED _____________ ATTACHED HERETO AND MADE A PART HEREOF." Lines then follow for further information. Mr. Davet's complaint states that a violation notice was sent on May 12, 1997. This section ends with a line for the inspector's signature and number, and underneath this line is the following: "Sworn and Subscribed before me the ____ day of _______, 19___" with a line for a deputy clerk to sign and complete the affidavit. On Mr. Davet's citation this latter part is completed. Inspector David Dawson signed the complaint, as sworn and subscribed on June 30, 1997, and a signature appears on the line for the deputy clerk.
The final section begins as follows: "TO THE DEFENDANT: SUMMONS." The next line reads: "YOUR APPEARANCE IN COURT IS MANDATORY." Following that the summons reads: "You are summoned and ordered to personally appear at the Cleveland Municipal Court, time and place as indicated below:." Then blocked and indented is: "CLEVELAND MUNICIPAL COURT/ JUSTICE CENTER/ 1200 Ontario, Floor 12, Courtroom B/ Cleveland, Ohio." On Mr. Davet's summons Floor 12 is crossed out, and Floor 13 is written on the side. A "fill in" line for the date and time follows, and on Mr. Davet's summons it is filled out for August 11, 1997, with 9*00 A.M crossed out and 1930 P.M. written on the side. Underneath this is written: "I UNDERSTAND THAT MY FAILURE TO APPEAR AS ORDERED WILL RESULT IN THE ISSUANCE OF A WARRANT FOR MY ARREST." There is then a line for the defendant's signature and date. In the present case these lines are blank. The citation ends with a note "KEEP CLEVELAND CLEAN," and in the bottom right hand corner an administrative note in small print reads, "C OF C 66-190."
Mr. Davet argues that this complaint and summons is fatally defective because it violates R.C. 7.01, 2935.09, 293510 and 2935.17. R.C. 7.01, Process, provides that "Process shall be under the seal of the court from which it issues, shall be styled `The State of Ohio, ..........County,' shall be signed by the clerk of such court and shall bear the date of the day it actually is
issued." R.C. 2935.09 provides that in all cases, unless otherwise
provided by R.C. sections 2935.02 through 2935.08, in order to cause the prosecution of a person charged with committing an offense in this state, a peace officer or private citizen having knowledge of the facts, shall file with the judge or clerk of a court of record an affidavit charging the offense committed. R.C. 2935.10 provides for the issuance of summons. R.C. 2935.17 provides sufficient forms of affidavits charging criminal offenses. Again, they should first be styled "State of Ohio, ............ County, ss:." The affidavit should then read: "Before me, A.B., personally came C.D., who being duly sworn according to law deposes and says that on or about the day of .........., 19..., one E.F. did [a concise or terse description of the offense follows] C.D./ Sworn to and subscribed before me this ..... day of ........, 19.../ A.B., Clerk of ...... Court."[3]
Mr. Davet argues that the complaint and summons is fatally defective because it is not styled "State of Ohio, County," ________ because it does not have a date of issuance, because it is not under the seal of any court, because there is no valid affidavit and because the complaint, as compared to the summons, is not directed to any specific court. Indeed the complaint fails to mention any political subdivision in its heading. Mr. Davet continues that these omissions patently and unambiguously divest any court of any jurisdiction. He contends that these omissions place the entire underlying complaint into a void from which it is impossible to determine when the case commenced, which court has the case or what the subject matter of the case is. Thus, no court could acquire any jurisdiction, territorial, personal or subject matter jurisdiction. Indeed, any court purporting to exercise jurisdiction pursuant to such a defective instrument would be unlawfully usurping jurisdiction and violating the defendant's right to due process and equal protection, if not acting as a rogue court.[4]
The principles governing prohibition are well established. Its requisites are (1) the respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at law. State ex rel. Largent v Fisher (1989), 43 Ohio St.3d 160, 540 N.E.2d 239. Furthermore, if a petitioner had an adequate remedy, relief in prohibition is precluded, even if the remedy was not used. State ex rel Lesher v. Kainrad (1981), 65 Ohio St.2d 68, 417 N.E.2d 1382, certiorari denied (1981), 454 U.S. 845; Cf. State ex rel. Sibarco Corp. v. City of Berea (1966), 7 Ohio St.2d 85, 218 N.E.2d 428, certiorari denied (1967), 386 U.S. 957. Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause which it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe (1941), 138 Ohio St. 417, 35 N.E.2d 571, paragraph three of the syllabus. "The writ will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction." State ex rel. Sparto v. Juvenile Court of Darke County (1950), 153 Ohio St. 64, 65, 90 N.E.2d 598. Furthermore, it should be used with great caution and not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas (1940), 137 Ohio St. 273, 28 N.E.2d 273; Reiss v. Columbus Municipal Court (App. 1956), 76 Ohio Law Abs. 141, 145 N.E.2d 447. Nevertheless, when a court is patently and unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel. Tilford v. Crush (1988), 39 Ohio St.3d 174, 529 N.E.2d 1245 and State ex rel. Csank v. Jaffe (1995), 107 Ohio App.3d 387. ...
To continue reading
Request your trial