2022 Ohio 1932
Ohio Ct. App.2022Background
- Relator Brandon Hare was tried in Hamilton County Municipal Court before Judge Heather S. Russell on an assault charge; at the May 3, 2021 bench proceeding Judge Russell orally recused herself and declared a mistrial after a dispute with defense counsel. The judge’s contemporaneous “Judge’s Sheet” stated only: “Court recuses – rerolls.”
- The case transferred to Judge Gwen Bender. Hare moved to dismiss on double-jeopardy grounds; Judge Bender denied the motion, finding Judge Russell had declared a mistrial.
- The prosecutor moved for a nunc pro tunc entry to clarify that a mistrial had been declared; on June 1, 2021 Judge Russell entered a nunc pro tunc journal entry stating she had declared a mistrial, recused, and requested the case be re-rolled.
- Hare filed a verified complaint for a writ of prohibition asking this court to vacate the June 1 nunc pro tunc entry and to restrain Judge Russell from further action in the case; both parties moved for summary judgment.
- The majority granted Hare’s motion: it held Judge Russell lost jurisdiction after recusing and therefore patently and unambiguously lacked authority to issue the June 1 nunc pro tunc entry; the court vacated that entry and issued a peremptory writ forbidding further action by Judge Russell. A dissenting judge would have denied the writ.
Issues
| Issue | Hare’s Argument | Russell’s Argument | Held |
|---|---|---|---|
| Whether Judge Russell had authority to enter the June 1, 2021 nunc pro tunc entry after she recused on May 3 | The June 1 entry was unauthorized because Russell lost jurisdiction when she recused; any further orders were voidable/void | The nunc pro tunc merely clarified and related back to Judge Russell’s May 3 oral declaration and therefore was proper | Held for Hare: Russell lacked jurisdiction to issue the June 1 nunc pro tunc entry and it was voidable/void as a jurisdictionally unauthorized act |
| Whether a writ of prohibition is an appropriate remedy to vacate the nunc pro tunc entry | A writ is appropriate to correct a patently and unambiguously unauthorized exercise of judicial power and to prevent usurpation of the successor judge’s authority | Russell argued the entry only clarified her relinquishment and that a writ was unnecessary | Held: writ granted because Russell patently and unambiguously lacked jurisdiction; prohibition may vacate prior unauthorized acts |
| Whether Crim.R. 36/nunc pro tunc doctrine permits retroactive correction after recusal | Hare: Crim.R. 36 does not confer jurisdiction where none exists; nunc pro tunc cannot supply jurisdiction after the judge recused | Russell: Crim.R. 36 allows correcting clerical omissions at any time; nunc pro tunc related back to when she still had authority and merely made the record speak the truth | Held: majority sided with Hare — nunc pro tunc cannot cure a judge’s lack of jurisdiction after recusal |
| Whether Hare has an adequate remedy at law (i.e., appeal) so prohibition should be denied | Hare: exception applies where the lack of jurisdiction is patent and unambiguous, so an appeal is not an adequate remedy | Russell: Hare can raise the issue on direct appeal of denial of his dismissal motion; prohibition is unnecessary | Held: majority applied the exception for patent and unambiguous lack of jurisdiction and found no adequate remedy; writ appropriate |
Key Cases Cited
- State ex rel. Fiser v. Kolesar, 164 Ohio St.3d 1 (establishes three-element test for prohibition: exercise of judicial power, unauthorized, and lack of adequate remedy)
- State ex rel. Durrani v. Ruehlman, 147 Ohio St.3d 478 (writ granted where trial judge patently and unambiguously lacked authority and usurped assignment/consolidation power)
- State ex rel. Thomas v. McGinty, 164 Ohio St.3d 167 (recognizes exception that writ may issue despite available appeal when lack of jurisdiction is patent and unambiguous)
- State ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326 (supports supervisory relief where inferior court is without jurisdiction)
- State ex rel. Stern Pros. Atty. v. Mascio, 81 Ohio St.3d 297 (orders after judge’s recusal can be void; prohibition may lie to prevent post-recusal acts)
- State v. Lester, 130 Ohio St.3d 303 (explains nunc pro tunc corrects clerical omissions and must reflect what the court actually decided)
- Ohio High School Athletic Assn. v. Ruehlman, 157 Ohio St.3d 296 (emphasizes extraordinary nature of prohibition and distinguishes subject-matter jurisdiction from other jurisdictional concepts)