2020 Ohio 584
Ohio Ct. App.2020Background
- Relator S.L. is the alleged victim in a Hamilton County domestic-violence prosecution; she and defendant Robert Tepe jointly owned the residence where the incident allegedly occurred.
- S.L. had a civil-protection order from domestic-relations court giving her exclusive possession of the home (which later expired).
- Tepe moved to compel access to the residence for defense preparation; Municipal Judge Fanon Rucker ordered one hour of access for Tepe and his counsel (with police escort) over S.L.’s objections.
- S.L. filed a petition for a writ of prohibition in the court of appeals under Marsy’s Law seeking to prevent enforcement of the order; she also sought an emergency stay, which the court granted.
- Judge Rucker recused; the court substituted the reassigned judge and reached the merits, deciding the controversy was not moot (or was capable of repetition yet evading review).
- The court concluded the trial judge lacked authority to compel a nonparty to permit inspection of a private residence and that S.L. had no adequate remedy at law; it granted the writ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper respondent / exercise of judicial power | Substitute reassigned judge under Civ.R. 25(D)(1); action should not abate | Rucker contends he ceased exercising judicial power by recusing | Civ.R. 25(D)(1) applies; reassigned judge substituted; action continues |
| Authority to compel nonparty to permit inspection of private residence | No authority: Crim.R.16 governs parties only; victim privacy and Marsy’s Law protect refusal | Authority exists in Crim.R.16(L)(1) and broad discovery discretion (citing Myers/McGinty) | Trial court lacked authority to force a nonparty to open private home for defense inspection; order invalid |
| Adequate remedy at law | No: victim should not have to violate order and risk contempt; Marsy’s Law permits direct appeal to court of appeals | Yes: victim can wait and appeal a contempt finding (per McGinty/Burnside) | No adequate remedy at law; writ appropriate |
Key Cases Cited
- State ex rel. Elder v. Camplese, 40 N.E.3d 1138 (Ohio 2015) (lists elements for extraordinary writ of prohibition)
- People in Interest of E.G., 368 P.3d 946 (Colo. 2016) (Colorado Supreme Court held trial court lacked authority to order defense access to nonparty private home)
- State v. Myers, 114 N.E.3d 1138 (Ohio 2018) (discusses trial-court discretion to regulate discovery under Crim.R. 16)
- State ex rel. Thomas v. McGinty, 137 N.E.3d 1278 (Ohio Ct. App. 2019) (Eighth Dist. upheld trial court ordering inspection of nonparty residence; court relied on broad discovery discretion)
- State ex rel. Mason v. Burnside, 881 N.E.2d 224 (Ohio 2007) (discusses remedies following contempt and appellate relief)
- State ex rel. Beach v. Norblad, 781 P.2d 349 (Or. 1989) (writ action holding trial judge lacked authority to order access to victim’s home)