*1 254 syllabus paragraph of the second had the arrest trial court not ordered (1967), 12 2d 38 Kay
of State v.
Ohio
presence
in the
of the
Pappola
jury, the
91], is as
O.O.2d
follows:
jury verdict would be the same and that a
[41
state-
questions
“Where
asked and
will
the
change
new trial
result of this
judge
ments made
a trial
the
say
case.
we cannot
progress of a criminal trial within the
not prevented
having
defendant was
hearing
jury may
of the
construed as
subject
a fair
misconduct. See
opinion
part
of the
2945.83(E)
and
v.
State
Thomas
concerning
credibility
of a defendant
(1973),
above rule to a where a case witness presence
arrested jury in the assigning any without reason therefor. City Kettering, Appellee, See Snodgrass Hazen v. Morrison & Co. Appellant. Berger, (N.S.) 483, 14 O.C.C. subject We hold that conduct it was a serious error because right
violated trial as defendant’s to a fair
provided by the Due Process Clause
Fourteenth Amendment to the United
States error Constitution that such prejudice
had to defendant some
extent. are impressed
We with the efforts of prosecuting attorney attempt
repair damage to his case caused
subject of the trial misconduct
apologizing presenting as a Pappola directing
witness the attention jury to other evidence in this case. opinion probabilities
our if the are that Montgomery jury before a Pleas. On
County Court of Common 13,1981 filed motion for appellee March *2 summary judgment supported law, affidavits, deposi- of memorandum the pleadings. April tions and On his that Judge opinion rendered Grigsby material genuine there was no issue of fact; he found as a matter of law that performing for appellant monies to fees, granted marriages were in fact judgment. appellee’s summary motion for appellant from It is that decision that brings this appeal.
I Supreme “The Chief Justice assuming of erred in he had Court Ohio upon to discretion rule issue prejudice assigned to judge bias and January (No. 7289 Decided man- violating this hear case thus 1982.) procedural provisions Section datory of of Revised Code.” Ohio Authority upon the dis- pass Newberry, appellee. F. for Mr. J. of judge of the court qualification of pro Berger, Mr. se. Jack H. pleas vested in the Chief common is of 5(C), under Article IV Justice Defendant-appellant J. Brogan, Constitution, which reads the Ohio the Ketter- judge served as an elected of follows: 1,1966 Municipal January from Court supreme justice chief During his tenure January until or any judge marriage judge performed he designated by pass upon him shall the dis- 1901.14, ceremonies, pursuant to R.C. qualification any judge the courts accepted money performing such appeals pleas common or divi- courts of Appellant did turn these ceremonies. not may adopted pro- sion thereof. Rules re- monies over to the clerk of courts as hearing for the of disqualification vide quired 1901.14. involving judges matters of courts February plaintiff-appellee established law.” seeking to filed this action recover those or his only Since the Chief Justice accepted by appellant per- may designee disqualification hear mat forming marriages. case was ters, without appeals Judge ultimately assigned visiting pass disqualification authority upon Joseph Grigsby. B. void the conferences, pretrial After that basis. Beer v. Griffith prejudice an affidavit of bias and filed St. 2d Ohio 440 O.O.3d against Judge Grigsby; this affidavit assignment error first was denied Chief prejudice bias and without merit. January Frank D. Celebrezze on Justice II 5, 1981. April “In event this court finds that on The matter was set provisions 2701.03 of the of Section Ohio clearly judgment entry defined in its on mandatory, then Revised Code are appellant’s protective order motion for alleges defendant-appellant releasing his amended federal Supreme Chief Justice of the Court of the years come tax returns for ruling state of Ohio that even erred formed ceremonies in his though party a trial refers to a as a capacity as a judge. ‘goddamned ‘goddamned or a thief Judge Grigsby page 3 of the stated demonstrating any crook’ he is still not judgment entry, my opinion, “In a mar- prejudice bias or would mandate riage money, fee is an certain amount hearing removal from issues uncertain, judge acting cause.” official witness for the state when For the stated in reasons our review the persons marriage prom- make their error, of the first this ises. That such fees are income and anot assignment is without merit. also gratuity law is so far as tax concerned has year been settled after the In- since III *3 come (Emphasis Tax Amendment.” in erred his un- “The added.) 8, 1980, September opinion solicited of explained The trial court further its the defendant called that no matter what position interpretation its concerning of him money received incident to the word “fee.” It reasoned that to claim ceremonies, it was still forming wedding only statutory word “fee” refers to a purview ‘fees’ of Section within the charge ignores usage the common of that Revised Code and Ohio term in compensation relation to for pro- paid been should therefore have services, physicians fessional particularly city to the clerk of courts for transmittal and word “fee” in attorneys. The R.C. Kettering.” of 4731.22(B)(4) (B)(14)referring and to fee meaning The can find no to this splitting compensation. can refer to only but will address the of error The word “fee” in Canons of Ethics in the interpretation issue of of “fees” and Judicial can only Canons refer to assignment of error. The third fourth money recompense ser- is without assignment of error merit. vices. It is in that the term sense “mar- IV riage 1901.14, fees” is used in R.C. it and inis or perquisites” sense “fees erred in granting trial court used in Section Article IV of the Con- summary judgment plaintiff to the stitution of Ohio. word “fee” is also appellee reality were in when there compensation used in the sense of when required several issues deter- of fact referred to in the Code Professional mination by jury.” Responsibility. summary entered a city Kettering seeks to recover the appellee on the motion of 1901.14, “fees” under read as having pleadings, after considered the follows during question: the period deposition appellant, affidavit and personnel. and other of court affidavits “Municipal judges have further The court indicate its reason for did not powers and duties as follows: finding no fact or its issues of conclusions “(A) To perform marriage judgment. said Ap- of law in entering ceremonies, acknowledgment take pellant contended in his affidavit and instruments, deeds and other administer deposition that he received for oaths, monies perform any and other duties marriage charges and which are upon judges conferred or “fees.” courts; county position appears The trial court’s fees, including fees, “All municipal judge when not by a further defined as collected “fee” has been proceeding cause or charge such as a student imposed connected court, shall municipal in the a fee for the use pending for an incidental such as municipal laboratory, to the clerk of a student union paid library over of a city treasury; fee, to the fee. 15A American court to be or matriculation 2d, and revise adopt, publish, To and Univer- “(B) Jurisprudence Colleges practice and regulation sities, Roget’s for the Thesaurus rules Section 19. courts, and procedure respective money of their “fee” as a fixed amount defines selection, manner of summon- for the charged privilege for a or service. jurors in said to serve as persons contends he did not Appellant court; marrying them but received anyone and revise
“(C) adopt, publish, To gratuitously parties from the relating “gratuity” rules administration married. Webster’s defines court; voluntarily or over and something given day the last
“(D) usually On or before in return for or above what is due year, the court shall Third January anticipation of each of service. Webster’s operation its complete report Dictionary render International defines New year during preceding “given freely “gratuitous” something to the board of legislative authority granted without recompense; ór without county of each county commissioners claim merit.” pay, or without territory. report Such A “fee is a of the fees to within bill” schedule court, courts, sheriffs, by the performed charged by show the work clerks of expenditures officers, receipts particular statement other for such service branches, respec- the civil and criminal their duties. Farris the line of heard, 466, 166 of cases de- tively, Smithpeter (1914), the number 180 Mo. cided, settled, and such other data as S.W. 655. state, court, secretary supreme how costs establishes R.C. 1901.26 courts, legislative authority, and the board of and fees shall be fixed *4 county requires.” reads, commissioners follows: part, in as pertinent charge by law for the
A fee is a fixed be municipal in a court shall “Costs for the use of public service of a officer or and taxed as follows: fixed rule, court, control of the privilege a under “(A) term “costs” government whereas the costs a schedule of fees and may establish sense, means, expense in- in a any proceeding, taxed in action or be litigation. criminal, curred in ex- either civil or which shall not 56-59; 2d, Judges, Sections Jurisprudence provided by the fees and costs law ceed see, also, Co. v. Wiseman proceeding Ft. Smith Gas similar action or in the for a 675, 74 pleas.” 189 Ark. S.W.2d common court of Goulding (1936), 275- People judice, v. In the matter sub there is no 378, 379, 353, Kettering Municipal the court Mich. N.W. evidence that charge per- “a fixed fees for held a “fee” was Court established rule Indeed, quisite charged recompense marriages. marriages as for labor if * * * reward, trouble, compensa- a Kettering formed tion, wage given” person Court, to a “for- appear it would no fee Municipal something (Em- done or to be done.” there no rule could be collected as added.) phasis authorizing its collection. (3 Ed. Dictionary Law a
Ballantine’s 2303.20 establishes fee “charge a made 1969), pleas, “fee” as common defines for the courts of schedule man, reads, such professional part, a in as follows: pertinent for services of A or abstracter.” lawyer, physician, of the court of common a “The clerk pleas following fees and receipt advantages gratui- of financial no more: tously.’ Helvering v. American Dental
“(A) Fifteen dollars
Co.,
for each cause
322, 330,
318 U.S.
63 Ct.
S.
which shall include:
577, 581,
“(1) Docketing
docket;
in appearance
tipping,
advantage
“In
the financial
“(2) Filing
documents,
necessary
conferred on the basis of a consideration
noting
filing
documents,
of such
ex- which is related to service. This makes it
cept subpoena,
appearance
docket
clearly income. United States v. McCor
* *
(Emphasis added.)
mick, Cir., 1933,
pro
259 see, (And Davis v. the statute.’ within pellant regarding gifts amd donative in- 137, Commissioner, Cir., 1936, 81 F. 2d 6 clearly inapposite tent are to the issue at 138). hand. while are considered problem if the be
“But they may may come not be “fees” as recipient, standpoint from the contemplated legislature in by the Tips are ‘income.’ result is the same. 1901.14. has a broad
“The word ‘income’ apparently placed The trial court em- legislation. Its meaning in income tax 6(B), Article phasis on Section IV of definition is still the all-inclusive states, classic Constitution of Ohio which capital, from from ‘gain one of derived “Judges shall receive no fees or * labor, combined.’ Eisner v. or from both quisites* appears The trial court Macomber, 189, 207, 1920, 252 40 S. U.S. equate “perquisites” the term with the 521, 189, 193, 64 L. Ed. 9 A.L.R. Ct. word “fees.” It is the word is known ‘income as “per- All of the definitions of the term speech of men.’ United the common quisite” contemplate profit to be Lighting Safety Heating Car & States v. out of the office he by secured the officer 353, Co., 1936, 88, 99, 56 U.S. S. Ct. compen- occupies, in addition to his fixed 358, applying Ed. 500. And in these 80 L. A “perquisite” something sation. criteria, ‘the laws of United revenue gained place employment from a over over-squeamish.’ Sibley, States are or fixed ordinary salary and above the in Alexandria Co. v. Commis- C.J. Gravel rendered, wages especially a for services sioner, Cir., 615, 95 F. 2d 616.” fee allowed to an officer for a law (C.A. Burdick United States v. Hence, specific service. the reimburse- court, 1954), pages F. 2d legislature ment of a for member 771-772, held: his actual does not fall within expenses “* * gifts receipts *whether the are “perquisite.” the definition of the word re- primarily question of fact be State, Ferguson (1941), Harbage, ex rel. peculiar circumstances of solved 139], 68 Ohio O.O. case, payments the mere fact that the clear, noted, ap- It is the trial court as voluntary does not them as were establish pellant would not have received .gifts; payments if the were made without money marriage couples but compensation for a donative intent and as solemnizing judicial his role officer in as they constitute income. services taxable marriage. appellant To the extent that ‘gift’ The term as in the revenue used kept any having performed * * * receipt ‘denotes of marriages, violating the constitu- advantages gratuitously.’ financial tional Article mandates of Section IV testimony fully established the Ohio Constitution. which he unreported receipts, defendant’s In Manuel v. Manuel ‘gifts’ compensation treated 458, 464, St. the court held: rendered, services rendered or to even be statutes, construing “In courts are or- though voluntarily the payments were dinarily governed plain to be mean- could, least, They broadly made. at the legislature, of the words used ‘gratuities’ ‘tips’ identified as and it is apparently plain, and if the sense it is receipts well-settled that such are not not to be varied construction without gifts, but taxable income.” strong reason.” judice, In the matter sub agree ap- We are constrained to given clearly regarded money him pellant given that the “fee” its or- word income, marriage couples as he dinary meaning conveys a fixed tax reported them as such on his amended opposed given voluntarily or to “monies Thus cited ap- returns. the cases gratuitously in reward for services.” *6 keep any office or to of- may appellant moneys payable to the * * to him for his role in given gratuitously (Emphasis ficer of the *.” marriages? think not. To added.) We Mr. his role as a performing Berger permit he appellant municipal judge decide otherwise would when received monies performing of office and the Con- office held said judicial to violate his oath his city, sums a for the and he fiduciary stitution of this state. as clearly spoken has as legislature pay- must now be held accountable responsibilities municipal of other ment. employees. R.C. 705.25 reads: The fourth of error is thus an elective officer shall salary overruled. during the term for changed not be V such officer was elected. perquisites appertaining
“All fees and in concluding “The trial court erred or any municipal defendant-appellant officer shall be office was because treasury municipal into the of the position a of trust and was a corporation, be credited to the right and shall he therefore had no to assert limitations, officer or employee fund. No defense of the Sec- shall receive municipal corporation Code, or any tion 2305.07 Ohio Revised representative than otherwise applicable other statute of limitations municipal corporation pur- and for the brought against actions him.” pose paying treasury any it into such limitations can run statute of fee, emolument, present, gift, or or share against corporation. municipal Smith v. services, therein, for other than App. 511 Reed O.O. [21 official regular compensation. or salary Any brought In taxpayer Smith a suit on officer section shall violating thereby this municipality behalf of a recover fines forfeit his No office. member of the which had and retained been collected authority or legislative other officer or city during mayor his term of employee compensa- thereof shall receive mayor office. The asserted defendant any tion for services rendered in other city defense that the could not recover the department municipal corporation, money from him the statute of because officer, they any clerk, nor shall or other applicable limitations to such action had or employee municipal corporation run therefore city and the was barred agent attorney act as for any person, proceeding further. Hamilton company, State, corporation, relation to County Appeals Court of cited ex any matter Edn., to be affected action of the rel. Bd. v. Gibson legislative any department, other or by 352], controlling. Ohio St. 318 O.O. the action of municipal Gibson, officer the court held board of educa- corporation. district, The violation of this section tion or school clothed (Emphasis is cause for added.) removal.” sued, capacity thereby to sue or be section highly
We believe this governing rendered to the laws amenable structive of legislature the intent litigants, including plea of the statute regarding position an official Gibson, use of court in limitations. Also the advantage. Thus, obtain financial stated, while paragraph syllabus, three of R.C. regarding “fees” is not the does expressly a statute “[w]here appropriate collecting vehicle exempt political a subordinate subdivision “gratuities” by appellant, operation from its statute of limita- [the right city has to recover these tions], monies. exemption therefrom does not 1901.31(F) provides: “The clerk of exist.” The in Smith stated if the against receive and col- statute of limitations runs a board fines, all.costs, fees, bail, education, lect parity reasoning and other it If can overcome appellant however against municipal corpora- run law. should *7 city of- presumption by proof that tion, sub- this being political both subordinate marriage pocketing he 67 512. ficials knew was of the state. Ohio divisions nothing the statute gratuities and did agree reasoning Smith We with on may depending have of limita- limitations run so hold the statute decision and Therefore, mat- discovery. this municipal corpora- the date of against can run tions court be remanded to the trial ter should tion. ever, if of when determination appellee appellant contends should have discovered marriage city discovered or fees fraudulently converted or “gratuities” collecting was to clerk were to be turned over failing make he to “fees” for which was court. The statute re- accounting the clerk of courts an to for fraud specifies that cause action the statute. quired by not is accrue until the fraud is well The fifth of error Hence, discovered. R.C. 2305.09. taken. to begin of limitations does not for fraud against run a cause action VI discovery. savings until the This clause ruling on erred in is a embodiment of the statute substantial the defense that summary equity in suits applied the rule courts was not available to the defendant- laches fraud, ground of for relief on the Combs appellant in this case.” (1877), 32 Watson Ohio St. years is action not barred until four defined as Laches has been date, (1875), right that v. Bush cir- neglect to assert a under such Loffland grounded cumstances, time, is so length St. 559. The doctrine not and for such that the act of the principle much not fraud or other- as when induced running, the statute from lead a stops justified, debtor to will wise shown be principle that the defendant is not equity to refuse its aid. Russell v. permitted to avail himself of his own 102 (1921), Fourth Natl. Ohio St. Bank (1878), wrong. upon Kilbreath v. Fosdick 6 Dec. founded general principle 248. The 629. laches not Rep. policy imputable is public "discovery”? is is It actual invoked government may What sov- discovery, might municipal corporations strictly what the exercise or where Mt. diligence ereign public rights of due have been discovered that are involved. to-begin (1919), cause 100 will the statute to run. Vernon v. Berman & Reed not although ordinarily Stivens v. 68 Ohio St. where Summers Ohio St. degree prudence ordinary right 421. If is in nature. proprietary discovered, the fraud could have been although equitable In addition opportunity to equivalent such distinguishable clearly defense of laches is knowledge. Duhme v. Mehner limitations, it from that of the statute of 266; Republic Corp. N.P. Warner v. Steel many has similar character- nonetheless (S.D.N.Y. 1952), F.Supp. 998 O.O. istics, where a fraud particularly wrongful fraudulent concealment of acts Appellant contends the clerk of memorable involved. most Kettering Municipal city or the ad- Court every first equitable maxim learned ministration have known that should student is “he who comes seek- year law unlawfully retaining marriage must come with clean hands.” equity taken prior action 1977. standing suc- order have principle It is however well-established i.e., defense, cessfully equitable assert an presumed public of law that officials are laches, hands, clean one must come with properly to have acted and followed good if conscience or he has violated equitable fraudulently, there years faith or has acted those were tax as to before are available depositions release in defenses returns which to base him. a conclusion.” acted alleges appellant city Appellee’s summary motion judg- marriage fees converting fraudulently in ment established the existence of the his own Appellant by to his own benefit. following material facts: accepted gratuities admission (A) Appellant judge awas solemnizing forming role in judicial his Kettering Municipal from January Court marriages. acceptance This violates through December obligation the Con- constitutional under (B) During his tenure hardly he can be said stitution of Ohio and Montgomery County records of He thus clean hands. appellant performed showed four standing has to assert the doctrine no sixty-eight marriages. hundred *8 laches. (C) deposition Appellant’s assignment is over- The sixth of error federal amended tax returns indicated ruled. approximately eighty percent in VII marriages these money. had received prejudice erred to the average (D) That the payment for him defendant-appellant by of the denying such services was $25. wherein, in day other members None (E) money appellant of the judiciary of the would have established marriages received performing was usage in of the the custom the area turned over to the clerk of the court. term ‘fees’ is used in as it (F) Four sixty-eight hundred and of the Ohio Code.” Revised marriages percent eighty equals times summary judgment A motion for seventy-four. three hundred Three Nothing disposition. before seventy-four marriages hundred and submitting prevented appellant from $9,350. per marriage equals times $25 municipal judges as to affidavits of other appellee’s These facts as in set forth term “usage” their “custom” for summary motion judgment being However, the “fees” under R.C. 1901.14. established, only remaining question independent judgment trial court made an i.e., law, to be decided was one of were in meaning word “fees” the monies “fees” statute, interpreted it include all and he and therefore required to be into the including forms compensation, clerk of courts under R.C. 1901.14. law, “gratuities.” question was a This We have previously addressed the fact, need of surely was not in and he issue of “fees” vis-a-vis earlier advisory opinions from other opinion. in this Ap- judges meaning as to the of “fees.” The damages determination of to be any case pellant was free to submit $9,350 is consistent with the evidence authority question of law before before court. no in We find error the court. computation of damages. eighth error seventh assignment of error is overruled. overruled. judgment of the trial court VIII reversed remanded to that determination of if whether at all the “The trial court deter- erred limitations ran the action damages mination of the amount of suf- pending before the court. taking fered plaintiff-appellee by of the plaintiff-appellee’s calculations Judgment reversed hearing considering counsel and not and cause remanded. any evidence the defendant-appellant Phillips Wilson, JJ., concur. Wilson, J., sustaining concurring. In January 42 Decided (No. 81 CA summary judgment motion for appellee’s 1982.) trial court in effect held that under “gratuities” are “fees”
facts of this case my I view disagree.
as matter of law. preclude dispute the material facts McCallister, Gibney & Messrs. summary judgment. I concur granting of Stephan, for ap- Stephan and Mr. D. Peter reversal and remand. pellees. Cole,Acton, Harmon & Dunn
Messrs. Cole, for George appellants. and Mr. W. Brogan, from a appeal J. This is Municipal. Court of al., Appellees, v. Amole et Hines Appellants. below, the action was In the court al., Xenia. et dwelling aof purchasers filed damages in Xenia to house recover sustained because they claimed have pest control certification made a false Initially the sellers of house company. defendants, they but were joined The trial before the trial. was to dismissed referee, finding who made a court house, purchasers of the favor of the against pest control com- appellees, *9 appellants, and its pany employees, $2,600. Although appellants ob- referee, report judg- jected on the basis ment awarded judgment. appeal This is from that report. April appellees, Jef- On Hines, made Hines and frey Theresa through Evergreen Realty, Inc. to offer 1006 North Detroit purchase dwelling at Xenia, Street, Amolé from James Marguerite Amolé. The offer was condi- satisfactory report termite tioned expense. April 20 the buyers’ at the On Hartley accepted by offer was Robert Realty, whom Hartley broker for sale. property had been listed Subsequently Realty, acting Hartley sellers, ordered a agent ter- inspection Pest mite from Able Control. 24,1979 Pest Control made May On Able part parts. in three The first is a report “Conventional”; labeled report, brief drawing showing part is a second part third dwelling; and the outlines