State ex rel. Triplett v. Ross

• Decision Date: 13 September 2006
• Docket Number: No. 2006-0742.,2006-0742.
• Citation: 111 Ohio St.3d 231,2006 Ohio 4705,855 N.E.2d 1174
• Parties: The STATE ex rel. TRIPLETT v. ROSS, Judge.
• Court: Ohio Supreme Court

855 N.E.2d 1174

111 Ohio St.3d 231

2006-Ohio-4705

The STATE ex rel. TRIPLETT v. ROSS, Judge.

No. 2006-0742.

Supreme Court of Ohio.

Submitted August 8, 2006.

Decided September 13, 2006.

Jeffrey M. Gamso, Legal Director, ACLU of Ohio Foundation, Inc., for relator.

Daniel L. Bennett, Assistant Bellefontaine Municipal Prosecuting Attorney, for respondents Judge John L. Ross, Clerk Marty Carmean, and Bellefontaine Municipal Court.

Jim Petro, Attorney General, and Frank M. Strigari, Assistant Attorney General, for intervening respondent Attorney General of Ohio.

David H. Bodiker, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender; Charles B. Clovis, urging granting of writ for amici curiae Ohio Public Defender and Ohio Association of Criminal Defense Lawyers.

PER CURIAM.

{¶ 1} This is an action for a writ of prohibition to prevent a municipal court and its judge and clerk from ordering attorneys who seek court appointments to complete and return a declaration specified by the Ohio Patriot Act to certify that they do not provide material assistance to a terrorist organization. Because the Ohio Patriot Act does not require that the declaration be completed when the attorney makes less than $100,000 annually from these appointments, we grant the writ in part.

{¶ 2} On December 14, 2005, the General Assembly enacted the Ohio Patriot Act, Am.Sub.S.B. No. 9 ("S.B. 9"), to implement the provisions of the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001," Pub.L.No. 107-056, 115 Stat. 272, as amended. One of the purposes of the act, according to its title, is "to establish requirements for state and local compliance with federal homeland security authorities and laws pertaining to terrorism and homeland security." See, also, R.C. 9.63. Another purpose of the Ohio Patriot Act is "to limit licensing, employing, and doing business with persons who have provided material assistance to an organization on the United States Department of State Terrorist Exclusion List." Governor Taft signed the Ohio Patriot Act on January 11, 2006, and the act became effective on April 14, 2006. S.B. 9.

{¶ 3} The Ohio Patriot Act requires the Director of Public Safety to prepare a document to serve as a declaration of material assistance/nonassistance, which includes six questions to determine whether applicants for certain identified licenses, persons doing business with a government entity, or applicants under final consideration for government employment have provided material assistance to an organization on the United States Department of State Terrorist Exclusion List. R.C. 2909.32, 2909.33, and 2909.34. The declaration requires that the persons answer the following questions:

{¶ 4} "(1) Are you a member of an organization on the U.S. Department of State Terrorist Exclusion List?

{¶ 5} "(2) Have you used any position of prominence you have within any country to persuade others to support an organization on the U.S. Department of State Terrorist Exclusion List?

{¶ 6} "(3) Have you knowingly solicited funds or other things of value for an organization on the U.S. Department of State Terrorist Exclusion List?

{¶ 7} "(4) Have you solicited any individual for membership in an organization on the U.S. Department of State Terrorist Exclusion List?

{¶ 8} "(5) Have you committed an act that you know, or reasonably should have known, affords `material support or resources' to an organization on the U.S. Department of State Terrorist Exclusion List?

{¶ 9} "(6) Have you hired or compensated a person you knew to be a member of an organization on the U.S. Department of State Terrorist Exclusion List or a person you knew to be engaged in planning, assisting, or carrying out an act of terrorism?" See R.C. 2909.32(A)(2)(b), 2909.33(A)(1), and 2909.34(A)(1).

{¶ 10} An affirmative answer or a failure to answer "no" to any of the questions on the declaration serves as a disclosure that the person provided material assistance to an organization listed on the terrorist exclusion list, which would generally result in the denial of a state license, or the denial of a contract or employment with the state, its instrumentalities, and its political subdivisions. R.C. 2909.32(C); 2909.33(B), (C), and (D); and 2909.34(B) and (C).

{¶ 11} On April 10, 2006, four days before the effective date of the Ohio Patriot Act, respondent Bellefontaine Municipal Court Clerk Marty Cremean issued a memorandum on the letterhead of respondent Bellefontaine Municipal Court directed to all counsel who seek or obtain court appointments to represent indigent persons in the municipal court. Carmean instructed these attorneys to immediately complete and return, pursuant to S.B. 9, the "Declaration Regarding Material Assistance/Nonassistance to a Terrorist Organization" prepared by the Ohio Department of Public Safety, Division of Homeland Security. The declaration included the six questions specified in the Ohio Patriot Act. The form is titled "Government Business and Funding Contracts" and notes that "[i]n the event of a denial of a government contract or government funding due to a positive indication that material assistance has been provided to a terrorist organization, or an organization that supports terrorism as identified by the U.S. Department of State Terrorist Exclusion List, a review of the denial may be requested." The certification at the end of the declaration specifies that "if this declaration is not completed in its entirety, it will not be processed and [the person] will be automatically disqualified" from doing business with the state government.

{¶ 12} Relator, Marc S. Triplett, is an attorney licensed in Ohio who has sought and obtained court appointments to represent indigent persons in the Bellefontaine Municipal Court. Triplett remains interested in obtaining municipal court appointments but does not want to complete the declaration. Triplett did not fill out, sign, and return the declaration to Carmean. Notwithstanding Triplett's refusal to complete the declaration, the municipal court has appointed him to represent an indigent person after the April 14, 2006 effective date of the Ohio Patriot Act. Triplett does not make $100,000 or more per year from his court appointments.

{¶ 13} On April 14, 2006, Triplett filed this action for a writ of prohibition against respondents, Bellefontaine Municipal Court, municipal court Judge John L. Ross, and Carmean. In his complaint, Triplett requests a peremptory writ to order respondents (1) "to cease efforts to have attorneys who seek court appointments from Bellefontaine Municipal Court to represent the indigent accused in that court complete and return the Form," (2) "to cease declaring that failure of an otherwise licensed, willing, and eligible attorney to complete and return the Form will be a disqualification from obtaining court appointments in the Bellefontaine Municipal Court," and (3) "not to remove his name from the list of those who are eligible to receive and do receive court appointments in Bellefontaine Municipal Court."

{¶ 14} In his initial pleadings, Triplett acknowledged the applicability of the Ohio Patriot Act to court appointments of attorneys to represent indigent persons. For example, in his complaint, Triplett asserted that a failure to answer questions in the declaration would disqualify a person from any government contract, including, specifically in this case, from receiving court appointments to represent indigent persons charged with crimes who were subject to the jurisdiction of the Bellefontaine Municipal Court. And in Triplett's brief in support of his complaint, Triplett specified that "the General Assembly, through the Ohio Patriot Act, has declared that only persons who attest that they are not terrorists, do not employ terrorists, and do not provide material support to terrorists may represent indigent persons on appointment in the courts of Ohio" and that "by sending the form to `All Court Appointed Counsel,' the Bellefontaine Municipal Court, its Clerk, and its Judge have implemented that requirement."

{¶ 15} Triplett claimed he was entitled to the requested extraordinary relief in prohibition because the pertinent portions of the Ohio Patriot Act, i.e., R.C. 2909.32 and 2909.33, unconstitutionally usurped the Supreme Court of Ohio's exclusive authority to regulate the practice of law. Respondents submitted an answer and a motion to dismiss. Because Triplett challenged the constitutionality of R.C. 2909.32 and 2909.33, Ohio Attorney General Jim Petro filed a motion to intervene as a respondent, and an answer.

{¶ 16} Based upon Triplett's complaint and the parties' pleadings, we granted an alternative writ, granted the Attorney General's motion to intervene, and issued a schedule for the presentation of evidence and briefs. State ex rel. Triplett v. Ross, 109 Ohio St.3d 1492, 2006-Ohio-2762, 848 N.E.2d 856. The parties stipulated to the evidence. The Ohio Public Defender and the Ohio Association of Criminal Defense Lawyers filed amicus curiae briefs in support of Triplett.

{¶ 17} This cause is now before us for a consideration of the merits.

Prohibition: Court Appointments

{¶ 18} Triplett asserts that no court, court clerk, or judge can condition court appointments or other matters of the practice of law upon completion of the "Declaration Regarding Material Assistance/Nonassistance to a Terrorist Organization." In order to be entitled to the requested extraordinary relief in prohibition, Triplett must establish that (1) the municipal court, its judge, and its clerk are exercising judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio...