State ex rel. Thomas v. McGinty

Decision Date01 December 2020
Docket NumberNo. 2019-1803,2019-1803
CourtOhio Supreme Court
Parties The STATE EX REL. THOMAS et al., Appellants, v. MCGINTY, Judge, Appellee.

Ohio Crime Victim Justice Center and Elizabeth A. Well, for appellants.

Law Office of Timothy Farrell Sweeney and Timothy F. Sweeney, Cleveland, for appellee.

Rittgers & Rittgers and Konrad Kircher, Lebanon, urging reversal for amicus curiae National Crime Victim Law Institute.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Katherine Mullin and Anthony T. Miranda, Assistant Prosecuting Attorneys, urging reversal for amicus curiae Cuyahoga County Prosecutor's Office.

Mark A. Stanton, Cuyahoga County Public Defender, and Erika B. Cunliffe and John T. Martin, Assistant Public Defenders, urging affirmance for amicus curiae Cuyahoga County Public Defender.

Per Curiam.

{¶ 1} Article I, Section 10a of the Ohio Constitution, a.k.a. "Marsy's Law," grants crime victims a right in criminal cases to obtain judicial review of discovery orders that affect their Marsy's Law rights. Appellants, Lavon Thomas and Felicia Kelly, sought a writ of prohibition to prevent appellee, Cuyahoga County Court of Common Pleas Judge William T. McGinty, from enforcing a discovery order allowing a criminal defendant (along with her defense counsel and expert witness) to have court-supervised access to inspect appellants' residence, which was the scene of the alleged crime. The Eighth District Court of Appeals granted Judge McGinty's motion to dismiss appellants' prohibition action.

{¶ 2} Although crime victims have a right under the Ohio Constitution to judicial review of discovery orders affecting their Marsy's Law rights, a writ of prohibition is not the correct mechanism to challenge Judge McGinty's order. We therefore affirm the Eighth District's judgment.

I. Facts and Procedural Background

{¶ 3} Kaylynn Counts allegedly assaulted Kelly and Thomas in Thomas's home in November 2018. Counts is awaiting trial for attempted murder and felonious assault before Judge McGinty in the Cuyahoga County Court of Common Pleas.

A. Judge McGinty's Discovery Order

{¶ 4} On April 1, 2019, Counts filed a "Motion for Criminal Rule 16 Entry Upon Land for Inspection and Photograph," requesting an order allowing her to inspect and photograph Thomas's home, where appellants reside. Counts's counsel wanted access to the home to aid in "forensically recreating the incident" for the defense's case. The state opposed the motion, arguing that the trial court lacked authority to order access by a criminal defendant to a victim's home under Crim.R. 16.

{¶ 5} Judge McGinty granted Counts's motion. He issued an order allowing Counts and the defense team to inspect Thomas's home when appellants and the prosecution are not inside it, supervised by a sheriff's deputy and the court's bailiff. The court ordered as follows:

The parties communicate to provide 3 available days with a specific time to allow State to confer with homeowner.
The state will indicate to defense counsel the date for the discovery.
The court orders that bailiff shall be the court representative and be present at all times while the defendant, defense counsel and their experts are within the residence. At all times, the defendant, defense counsel and their expert shall be within the view of bailiff.
The court orders that a sheriff's deputy shall assist bailiff in this procedure.
The victim shall not be in the residence once the discovery process commences.
The court further orders that Cleveland Police Department and County Prosecutor [personnel] may be present, but may not be within the residence when the discovery is ongoing.

{¶ 6} The state unsuccessfully sought leave to appeal Judge McGinty's order under R.C. 2945.67(A). See State v. Counts , 157 Ohio St.3d 1405, 2019-Ohio-3731, 131 N.E.3d 73. The prosecuting attorney also filed an original action in this court, seeking a writ of prohibition to enjoin enforcement of Judge McGinty's order. This court granted Judge McGinty's motion to dismiss that action. State ex rel. O'Malley v. McGinty , ––– Ohio St.3d ––––, 2020-Ohio-648, 140 N.E.3d 733.

B. The Eighth District Proceedings in this Case

{¶ 7} While the state's motion for leave to appeal was pending, appellants filed this action in the Eighth District, seeking a writ of prohibition to restrain Judge McGinty from enforcing his discovery order. They argued that Marsy's Law and the Fourth Amendment's prohibition of unreasonable searches and seizures deprived Judge McGinty of the authority to issue the order permitting Counts and the defense team to have access to appellants' residence.

{¶ 8} The Eighth District granted Judge McGinty's motion to dismiss the prohibition action. The Eighth District held that a trial court "has broad discretion, and thus the jurisdiction, over discovery matters, such that the writ of prohibition will not lie." 2019-Ohio-5129, 137 N.E.3d 1278, ¶ 26. And to the extent that Judge McGinty's order granted discovery beyond that required by Crim.R. 16, the Eighth District found that to be within the trial court's discretion.

{¶ 9} The Eighth District further determined that appellants' status as nonparties to State v. Counts did not undermine Judge McGinty's discretion. The court explained that "the court of common pleas may order non-parties to assist in criminal investigations." Id. at ¶ 27, citing State ex rel. Ohio Bell Tel. Co. v. Williams , 63 Ohio St.2d 51, 407 N.E.2d 2 (1980). And the court found further support in Crim.R. 17, governing subpoenas issued to nonparties in criminal cases, for the general proposition that a trial court's authority can reach third parties in discovery. Id. at ¶ 29.

{¶ 10} Having concluded that Judge McGinty "has the jurisdiction" to issue the discovery order in this case as a matter of Ohio discovery law, the Eighth District next examined whether Marsy's Law "deprives him of that power." Id. at ¶ 30. The court held that a crime victim's right to privacy "does not unilaterally deprive the trial court of jurisdiction" to order an inspection of a private residence that is also the crime scene. Id. at ¶ 31. Relying on cases from other jurisdictions to inform its decision, the Eighth District determined that a third party's privacy rights "must be weighed against a criminal defendant's rights to due process, to confront witness[es], to have compulsory process to obtain evidence, and to effective assistance of counsel." Id. at ¶ 42. The Eighth District therefore concluded that a trial court has jurisdiction to order an inspection of a crime scene, even if it is a private residence. Id.

{¶ 11} As an additional ground for dismissal, the Eighth District concluded that appellants had an adequate remedy at law precluding extraordinary relief in prohibition. Specifically, the Eighth District observed that appellants could disobey Judge McGinty's order, be found in contempt, and appeal a resulting contempt order. Relying on State ex rel. Mason v. Burnside , 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, the Eighth District determined that "appealing a contempt order is an adequate remedy at law that precludes a writ of prohibition." 2019-Ohio-5129, 137 N.E.3d 1278, at ¶ 43.

{¶ 12} Appellants have timely appealed to this court as of right. They have also requested oral argument.

II. Request for Oral Argument

{¶ 13} In exercising our discretion to grant oral argument under S.Ct.Prac.R. 17.02(A), this court considers "whether the case involves a matter of great public importance, complex issues of law or fact, a substantial constitutional issue, or a conflict among courts of appeals." State ex rel. Davis v. Pub. Emps. Retirement Bd. , 111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 15.

{¶ 14} Appellants' request for oral argument is one sentence long and does not include any discussion of the above factors. But even if the existence of one or more of these factors is self-evident, oral argument is not warranted in this case. Although there is little case law interpreting the scope of a crime victim's constitutional rights under Marsy's Law, this case turns on familiar principles governing writs of prohibition. See State ex rel. Sponaugle v. Hein , 153 Ohio St.3d 560, 2018-Ohio-3155, 108 N.E.3d 1089, ¶ 31 ; State ex rel. Chester Twp. v. Grendell , 147 Ohio St.3d 366, 2016-Ohio-1520, 66 N.E.3d 683, ¶ 18. We therefore deny the request for oral argument.

III. Writ of Prohibition

{¶ 15} This court reviews de novo a lower court's dismissal of an extraordinary-writ action under Civ.R. 12(B)(6). State ex rel. Zander v. Judge of Summit Cty. Common Pleas Court , 156 Ohio St.3d 466, 2019-Ohio-1704, 129 N.E.3d 401, ¶ 4. To be entitled to their requested writ of prohibition, appellants must establish that (1) Judge McGinty exercised or is about to exercise 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. State ex rel. Elder v. Camplese , 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. Although a relator need not show the lack of an adequate remedy in the ordinary course of law when the absence of jurisdiction is patent and unambiguous, State ex rel. Vanni v. McMonagle , 137 Ohio St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243, ¶ 6, appellants do not argue that there is a patent and unambiguous lack of jurisdiction in this case.

A. Judge McGinty Acted within His Judicial Power

{¶ 16} In arguing that Judge McGinty's discovery order is unauthorized by law, appellants first rely on Crim.R. 16, which provides:

Upon receipt of a written demand for discovery by the defendant * * * the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or

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