State ex rel. Stern v. Mascio

• Decision Date: 06 March 1998
• Docket Number: No. 98-371,98-371
• Citation: 81 Ohio St.3d 297,691 N.E.2d 253
• Parties: The STATE ex rel. STERN, Pros. Atty., v. MASCIO, Judge.
• Court: Ohio Supreme Court

Page 297

81 Ohio St.3d 297

691 N.E.2d 253

The STATE ex rel. STERN, Pros. Atty., v. MASCIO, Judge.

No. 98-371.

Supreme Court of Ohio.

Submitted March 3, 1998.

Decided March 6, 1998.

Kravitz & Kravitz and Max Kravitz, Columbus, for relator.

PER CURIAM.

S.Ct.Prac.R. X(5) provides that "[a]fter the time for filing an answer to the complaint or motion to dismiss, the Supreme Court will either dismiss the case or issue an alternative or a peremptory writ, if a writ has not already been issued." Pursuant to S.Ct.Prac.R. X(5), we generally wait for a response before rendering this determination. But under S.Ct.Prac.R. XIV(4), a party may request emergency relief. Stern requests an expedited determination and the issuance of immediate alternative and peremptory writs, alleging that he faces additional citations for contempt, arrest, and incarceration should he fail to obey Judge Mascio's continued orders in the case. We find that this case merits an expedited determination, particularly because Judge Mascio indicated in his February 20 letter that he still expects Stern to comply with his order of February 12 for additional case citations.

Under S.Ct.Prac.R. X(5), dismissal is appropriate if it appears beyond doubt, after presuming the truth of all material factual allegations and making all reasonable inferences in favor of relator, that relator is not entitled to the requested extraordinary relief. State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 106, 108, 647 N.E.2d 799, 801-802. If, on the other hand, the complaint may have merit, an alternative writ should issue. Staff and Committee Notes to S.Ct.Prac.R. X(5). Finally, if it appears beyond doubt that relator is entitled to the requested extraordinary relief, a peremptory writ should issue. State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 583, 669 N.E.2d 835, 839.

Prohibition

Absent a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party challenging the court's jurisdiction possesses an adequate remedy by appeal. State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 336, 686 N.E.2d 267, 268. Where an inferior court patently and unambiguously lacks jurisdiction over the cause, prohibition will lie both to prevent the future unauthorized exercise of jurisdiction and to correct the results of previous jurisdictionally unauthorized actions. State ex rel. Rogers v. McGee Brown (1997), 80 Ohio St.3d 408, 410, 686 N.E.2d 1126, 1127.

Stern contends that Judge Mascio patently and unambiguously lacks jurisdiction to proceed in the civil nuisance case. For the following reasons, we agree and issue a peremptory writ.

First, Judge Mascio disqualified himself from the civil case on February 12. Under Canon 3(E)(1)(c) of the Code of Judicial Conduct, this disqualification was required, particularly because his son represented a party in the civil case. Canon 3(E)(1) provides that a "judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

" * * *

"(c) The judge knows that * * * the judge's * * * child wherever residing * * * has an economic interest in the subject matter in controversy or in a party to the proceeding * * *."

Judge Mascio conceded in his entry of recusal that his son is an attorney for one of the defendants named in the civil nuisance case.

Second, Stern filed an affidavit of disqualification against Judge Mascio. Prior to November 20, 1996, the mere filing of an affidavit of prejudice with this court would not necessarily prevent a trial judge from proceeding. See State ex rel. Litty v. Leskovyansky (1996), 77 Ohio St.3d 97, 101, 671 N.E.2d 236, 240-241, citing Rife v. Morgan (1995), 106 Ohio App.3d 843, 850, 667 N.E.2d 450, 454-455. But effective November 20, 1996, R.C. 2701.03 was amended to provide in subsection (D)(1) that "[e]xcept as provided in divisions (D)(2) to (4) of this section, if the clerk of the...