*1 ORDER RE: COMPENSATION pated hours and costs for the next six

FOR SPECIAL MASTER months.2 DOWD, Judge. District Mr. Nathan has already filed a motion seeking leave to employ graduate On March the Court assis- appointed tant at (Doc. a rate of Vincent M. 110). $25/hour. Nathan Special as No. Master un- That request 3626(f)(1)(B) § der 18 is granted. U.S.C. to assist amounts paid to graduate Court with the phase remedial assistant part of this shall be liti- gation. of the See Doc. “costs” permitted, No. with the WL under- 5569488, 495 F.Supp.2d standing all Compensa- 693. such costs will subject be tion for the Special monthly governed Master is review and approval by the 3626(f)(4),1 § which provides: Court.

The compensation to be allowed to IT IS SO ORDERED. special master under this section shall be based an hourly on rate not greater

than hourly rate established under

section for payment 3006A of court-ap- pointed counsel, plus costs reasonably

incurred by the special master. Such

compensation and costs shall paid be with funds appropriated to the Judicia- Nathaniel ROBERTS, Individually

ry. on Behalf of the Class, Certified The current hourly rate approved by the al., et Plaintiff(s), Judicial Conference § under 3006A is $125.00. v. Accordingly, the Court determines that COUNTY OF MAHONING,

Mr. Nathan’s hourly rate shall not exceed al., Defendant(s). et $125.00, plus costs reasonably incurred. No. 4:03 CV 2329. Mr. Nathan shall required be to submit a monthly bill on or near the day first United States Court, District every month during appointment his Ohio, N.D. Special Master, beginning May 2005. Eastern Division. Each monthly bill will then be reviewed and approved by the Court prior May pay- ment.

Since the funds payment of the Spe- cial Master come from the Administrative

Office of the United Courts, States in or- der that the might AO be able to obligate an appropriate amount, Mr. Nathan is asked to submit to the April 8, 2005, his reasonable estimate as to antici- (see

1. In another 112), Doc. No. convinced the Court that Hadix does ap- suggested compensation that the might ply- also subject interpretation of Hadix Johnson, (6th Cir.2005). F.3d 863 3626(f)(5) Section requires that this Court However, more careful consideration has review appointment every six months.

695 D. Prosecutor, Gina Gains, Paul J. Prosecutor, Youngs- Bricker, Assistant OH, town, for Relator. Law Guglucello, Torres

Attorney Iris Respon- OH, Director, Youngstown, dent.

ORDER Judge.

DOWD, District issued this Court March On (Doc. 2005 No. Opinion Memorandum 670), including F.Supp.2d 5569487,495 WL of Law. and Conclusions of Fact Findings members Class found This Court constitutional their (1) denied being are pro- without due punished to be rights not subjected to to be of law and/or cess (2) are punishment, unusual cruel constitutionally-protect- their being denied courts. of access right ed in this remedy found This of 18 provisions subject case 3626(a). appointed This § U.S.C. (Doc. Master Special Nathan Vincent F.Supp.2d 108, 2005 WL No. of 18 provisions 693) with consistent (C). (B) 3626(f)(2)(A), § U.S.C. defendants deference Recognizing first in the plan a remedial develop the United is consistent instance Lewis decision Court’s Supreme States 362-63, S.Ct. U.S. Casey, (1996), this Court L.Ed.2d to assist Master Special directed Defendants, in at- specifically parties, problems a solution to find tempting condi- the unconstitutional created in his Master Special jail. at tions (Doc. Report 132) Fourth No. formally its April 7, (Doc. Order of 117). No. recommended that the Defendants form Thereafter, due to the Common Pleas working group develop plan remedial Court Ordered (“Re- Release Mechanism to deal with the constitutional issues raised lease Mechanism”), the population cap was *3 regarding the and to examine jus- the implemented. See CJWG First Interim tice system in Mahoning County to see (Doc. Report 142, No. G). Exhibit After how changes in system the could alleviate implementation of the Mechanism, Release the overcrowding component of the uncon- the population crept from upwards stitutional conditions jail. in the There of 400. During this period, interim the being objection no to this recommendation, parties attempted to regain control of the this Court’s Order of 10, August 2005 population by implementing pro- additional (Doc. 132) No. adopted the recommenda- cedures. See CJWG Second Interim Re- tions of Special the Master’s Fourth Re- (Doc. port No. pp. 12-13 and Exhibit port. This Court’s August 2005 Order K). These procedures short, fell in part as constituted an order a less intrusive a result of judicially imposed “Do Not relief in compliance with 18 U.S.C. (“DNR”) Release” Orders by the misde- § 3626(a)(1) of the Prison Litigation Re- meanant, county, and common pleas courts form Act. for certain inmates who would have other- Pursuant to (Doc. this Court’s Order No. wise been pursuant released to provisions 133), the Criminal Justice Working Group of the Release Mechanism. This left the (“CJWG”) was formed and began meeting in Sheriff a predicament of violating such in August of 2005. Over the next ten orders, DNR the Common Pleas Court months, the CJWG met and made multiple Ordered Release Mechanism, and/or reports of its progress. (See, Doc. Nos. parties’ agreed population limit in this 142, 154, 175). 166 and On May case. the CJWG submitted its Final Report to The (Doc. reported this Defendants 191). that, Court. No. on Janu- This Court ary 10, 2006, appreciates the great Sheriffs Department of amount effort work leased an inmate gone has with a into the DNR formation Order of is- this final sued report a Youngstown and the CJWG’s Municipal attempt to solve Judge those problems who then sought outlined in to have the Sheriff Memorandum Opinion held in of contempt. March Such action prompted Further, the Defendants have reported Defendants to file a writ that progress has been made in the toward re- Seventh District Court of Appeals a solving number of the findings in seeking to have the appellate court deter- Memorandum Opinion including legal ac- mine jurisdiction of the lower courts to cess, maintenance, outdoor recreation, and issue “Do Not Release” Orders violation training. However, the central issue of of the Mahoning County Common Pleas population control to prevent future over- Court Ordered Release Mechanism. The crowding remains unresolved. Seventh District Court of Appeals granted By way agreement the writ of prohibition between the Plain- on May 2006 by tiffs and Defendants, a vote May of 2005 to l.1 decision, favorable to population at the Mahoning County Defendants, gives Jail the Sheriff the abili- was limited to no more than 296 ty to inmates control the population using the during the remedial phase of this action. Common Pleas Court Ordered Release This Court recognized this agreement in Mechanism prohibits the individual 1. A copy of Opinion and Dissent are at- tached Appendix hereto as the Common Pleas and affecting the courts from

misdemeanant However, in DNR orders. have to an Judges agreed with Court Order population Vindicator, article in The newspaper Overcrowding Release Mechanism. See City May counsel for dated (Doc. Report Final No. Exhibit CJWG City was indicated Youngstown E). to the Ohio filing appeal contemplating Since the Sheriff redirected seeking prohi- or writ Supreme Court training staff hired relief for Emergency Release regarding the

bition security open pods maintain additional Therefore, the possibility Mechanism.2 DNRs, at point accommodate the some abil- challenge to Sheriffs continuing pods the Com- and reduce population he will to close ity control *4 Thus, Release Mechanism accomplish training. mon Pleas Court to population troubling to the Court.3 mains to inmates to without a mechanism release accomplish training popu and to maintain maintain a consti- attempt to to caps lation based on the number of staff facility remedy population the and tutional the adequate staffing, to DNRs, provide available by the Sheriff created issue jail additional are unable to control the open made the decision two Defendants Report. Fourth Interim pods. See CJWG population prevent unconstitutional B). (Doc. The Sheriff No. Exhibit overcrowding. that these two represented to this Court May jail population As of run in the same pods being are additional this Consequently, 463 inmates.4 stood at the tower which fashion as constitutional unlikely plan finds that is that the Impera- to hold 296 inmates. agreed was population levels to maintain constitutional control is population the issue of tive to will be without some jail at the effective However, increasing due to the staffing. form of a by intervention this Court training has been

jail population, in-service prisoner release mechanism. that delayed in 2006 in order to insure adequate staffing being properly are levels Court, compli this Accordingly, maintained. Litigation Reform ance with the Prison Defendants, CJWG, have through the holding in of 1995 and the Lewis Act implement plan to deal with attempted to 343, 362-63, 116 S.Ct. Casey, 518 U.S. plan but this remains overpopulation; finds 135 L.Ed.2d beyond the dependent parties’ on factors given oppor an have been the Defendants population In order to maintain control. tunity problem correct the over levels, ability must Sheriff so been unable do crowding and have overcrowding prevent inmates to release by intervention this Court. further without staffing available on on his levels based ordered, with in accordance hereby It is com- day. requires This any particular 3626(a)(3)(D), § the matter 18 U.S.C. municipal, pleas, all common mitment from prisoner release order determining county agreed- to maintain judges date, three-judge panel in due But, to a only referred cap. upon population article, challenge opinion taken Youngstown to copy obtained from the 2. A website, as set majority action Appendix newspaper’s is as attached editorial, Appendix copy A forth in 1. 2. digital of the clipped the online version from Appendix newspaper, attached published May on 2006 in 3. An editorial Vindicator, major newspaper in Ma- Appendix encouraged City attached honing County, 4. See course in accordance with 28 U.S.C. § 2284.5 OPINION AND JOURNAL ENTRY Notwithstanding this decision pend- PER CURIAM.

ing the convening of a three-judge district Relator, {¶ court, 1} Randall this Court A. Wellington, encourages the CJWG to Mahoning Sheriff, continue its has filed efforts a Com- to achieve a resolution plaint for Writ of of all Prohibition issues in this this lawsuit without further Court against respondent, Hon. intervention Elizabeth this Court. A. Kobly, Judge of the Youngstown Munic- IT IS SO ORDERED. ipal Court. Relator, APPENDIX 1 Sheriff of Mahoning County, Ohio, along with the Mahoning OHIO, STATE OF MAHONING County Commissioners, were sued in fed COUNTY eral district court under Section Title 42, U.S.Code alleging that the Mahoning IN THE COURT OF APPEALS County Jail was unconstitutional due in SEVENTH DISTRICT part to overcrowding and inadequate staff *5 ing levels State in OHIO, of Roberts v. County ex rel. Randall A. Mahon WELL- ing, 4:03 INGTON, CV 2329. 10, On Mahoning 2005, March County Sheriff, Rela- federal district tor court declared that condi at jail

tions were unconstitutional. vs. In {¶ 3} order to bring jail into Hon. Elizabeth A. KOBLY, constitutional compliance, Judge, the Mahoning Youngstown Municipal Court, Respondent. Common Pleas Court issued an 30, 2005, March in put place a

Case No. 05-MA-228 new release mechanism for inmates based on the prioritizing of offenses. Character of Proceedings: Writ On 29, {¶ 4} 2005, November Prohibition respon- dent, a Youngstown Municipal Court Judgment: Writ of Prohibition Granted judge, sentenced (Tomlin) Ronald Tomlin Civ. R. 19 Motion Denied to seven days in the Mahoning County Jail APPEARANCES: on a conviction for domestic violence in For v. Tomlin, Relator: State Paul Gains, J. 15 CRB Prosecutor, 2054. In a sec- tion Gina D. Bricker, journal entry of Assistant Prosecutor, sentence cap- tioned Youngstown, orders,” “Other OH respondent specifi- cally noted, “Sheriff not to release early.” For Respondent: Iris Torres Guglucello, Tomlin was released from that Director, Law Youngstown, OH 44503 day same pursuant to the release mecha- Judges: nism adopted by the Mahoning County Hon. Gene Donofrio Common Pleas Court. Hon. Joseph J. Vukovich The following day, on November Hon. Mary DeGenaro 30, 2005, respondent ordered relator 22, Dated: May appear and show why cause he should not 5. The responsibility to appoint three-judge judge. circuit The process Court is in the panel rests with the Judge Chief of the Sixth requesting Judge Chief Boggs appoint Circuit, Danny Boggs. law, Under the panel by 30, Friday, June three-judge panel must include at least one 46; 73, Civ.R. 66, 375 N.E.2d 8 O.O.3d releasing for contempt of court be held 56(C). “do not of her in contravention Tomlin hearing was order. early” release judgment appropriate Summary {¶ 8} 2005, 28, December for any scheduled issue as to genuine there is no when Municipal Court. Youngstown depends fact” fact. A “material material being law the claim on the substantive 2005, 23, relator December On {¶ 6} Assoc., v. & Hoyt, Inc. Gordon litigated. contemporane- awith along writ filed this (1995), App.3d 104 Ohio Inc. alternative expedited for an ous motion Liberty v. citing Anderson N.E.2d 27, 2005, this Court December writ. On 247-248, (1986), 477 Lobby, Inc. U.S. that and ordered motion granted 91 L.Ed.2d 106 S.Ct. conducting from restrained spondent a writ of In order to be entitled hearing. {¶ 9} contempt the December (1) that must establish relator prohibition, an time, filed respondent has Since judicial or to exercise is about respondent join indispens- a motion answer (2) the exercise power, quasi-judicial alternative, a motion in the party, or able (3) law, and is unauthorized power opposi- a brief filed Relator to dismiss. injury for cause writ will denial of the joint stipulations filed parties tion. Both ordinary remedy in the other which no Additionally, both 3, 2006. February on ex rel. law exists. State course of summary filed motions parties Cty. Probate Mahoning Goldberg essence, argues relator judgment. 161-162, St.3d 93 Ohio Pleas County Common Mahoning *6 192. N.E.2d over jurisdiction exclusive unless not lie will Prohibition 10} {¶ as manifest- jail, operation Sheriffs juris- has no the court appears that clearly mech- of the release implementation ed attempt- it is the cause over diction ju- lacks respondent anism, that the its to exceed or is about adjudicate to ing that to relator violate to order risdiction v. McCabe rel. Ellis ex jurisdiction. State from a su- derived that order since order (1941), 20 O.O. Ohio St. contrast, respondent In tribunal. perior sylla- of the 571, paragraph three N.E.2d jurisdiction to it has exclusive that argues bus. with a “do order sentencing enter pre- not issue to writ will “The relator {¶ 11} and cite early” stipulation release to serve or judgment, an erroneous vent that failing to execute contempt for in mis- correct to appeal, or purpose order. ques- deciding in lower court takes of the rel. State ex jurisdiction.” OF REVIEW its tions within STANDARD Cty. Darke Juvenile Sparto properly judgment is Summary 7}{¶ 64, 65, 41 O.O. (1950), Ohio St. (1) genuine is no there when: granted N.E.2d 598. (2) fact; mov- any to material issue summary judg- as a judgment to for is entitled her motion ing party {¶ 12} (3) ar- minds three main law; ment, reasonable respondent advances matter that conclusion, argues First, that respondent guments. to but one can come she because granted against not be party the writ should adverse is conclusion sen- to enter the jurisdiction judgment had exclusive summary for motion whom the early” release a “do not tencing Day Ware- order v. Willis Harless is made. contempt in to cite relator stipulation and (1976)[1978], St.2d 54 Ohio housing Co. failing to execute the order. Respon- understood that respondent has power goes great dent lengths to outline persons hold contempt in of her orders. statutory scheme which a municipal details Turning to {¶ the three 16} elements for jurisdiction court’s over matters general of prohibition issue, writ the first and, with specificity more as it relates to requirement for the issuance of a writ of ease, this sentencing misdemeanants her prohibition is respondent is about to court. judicial exercise or quasi-judicial power. Second, respondent {¶ 13} argues Respondent sentenced Tomlin to seven the writ should not be granted because she days in the county jail with a “do not did not patently and unambiguously lack early” stipulation release and to commence jurisdiction in this matter and that relator on November 2005. Tomlin was re- has other remedies at law. As mentioned leased later that day same as a result of above, generally, in be entitled to the Mahoning County Common Pleas a writ of prohibition, one of the elements Court’s ordered release mechanism. On relator must establish is that denial of the November respondent attempted writ will cause injury for which no other judicial exercise power when or- she remedy in the ordinary course law ex- dered relator appear before her ists. Goldberg, 161-162, Ohio St.3d at Youngstown Municipal Court and show 753 N.E.2d However, as acknowl- why cause he should not be held in con- edged by respondent, there is an exception tempt for releasing (i.e., early Tomlin prior to this requirement where the tribunal to the expiration sentence). of his Conse- against whom the writ sought is patently quently, relator has established the first and unambiguously jurisdiction lacks to ex- requirement for the issuance of a writ of power ercise the sought to prohibited. prohibition. ex State rel. Rogers v. McGee Brown requirement second for the 80 Ohio St.3d 686 N.E.2d issuance of a writ is that the exercise of power unauthorized Respondent {¶ 14} maintains that she law. Respondent argues that the writ *7 jurisdiction had to sentence Tomlin and should not granted be because neither the jurisdiction to hold contempt proceed- Mahoning County Common Pleas Court

ings to enforce result, order. aAs nor relator had the authority to divest her respondent concludes that relator can jurisdiction raise or to prisoners release sen- the jurisdiction issue of her as a defense at tenced in her court. Relator argues that any stage of the pending contempt pro- respondent patently and unambiguously ceedings or during any appeal of an order jurisdiction lacks to order him to violate a issued therefrom. superseding order of the common pleas court made in accordance with R.C. 341.02. Respondent’s

{¶ 15} first two main ar- guments can readily be resolved before pleas Common {¶ 18} courts are courts addressing her third argument main which general jurisdiction. First Natl. Bank goes to larger the and more relevant issue (1921), v. Smith 102 Ohio St. 130 N.E. at hand here. As to her argument, first 502, paragraph one of syllabus; the State relator does not take issue with nor is ex rel. Houk v. Court Common Pleas any there dispute that respondent (1977), has the Ohio 334-335, St.2d requisite jurisdiction to sentence misde- O.O.3d 364 N.E.2d 277. “Municipal meanants that come before her in her courts are creatures of statute and have court. As to her second argument, it’s jurisdiction.” limited Cowan, State v. as void and by the court rules made such 2004- N.E.2d St.3d Ohio per questions all for himself determine ¶ Ohio-1583, at the prisoners. On the diet taining to in relevant provides, R.C. 341.02 19} {¶ the sheriff duty of plain contrary, it is the part: his and to command obey and enforce to jail administrator or “The sheriff the rules obey and enforce subordinates policies operational written prepare shall Id., 115 Ohio by the court.” established con- rules of prisoner and procedures and 422, 154 at N.E. St. prescribed records duct, maintain and the Court conclud- syllabus, In its {¶ 24} in accor- procedures and by policies these section (predecessor that G.C. 3162 ed for standards the minimum dance with 341.02) the common upon “confers R.C. depart- by the promulgated in Ohio jails exclusive full, complete, and court pleas and correction. rehabilitation ment of regula- rules and authority promulgate shall pleas common court of “The {¶ 21} and control management tions policies jail’s operational review per- jail and the county the sheriff conduct. rules prisoner procedures therein[.]” confined sons proce- policies, approves If the court R.C. argues that Respondent {¶ 25} conduct, be they shall dures, rules of pleas common give not does 341.02 adopted.” sentencing modify her authority to court Kohler v. Powell rel. ex State {¶ 22} However, Mahoning order. N.E. St. 115 Ohio implementing order Common Pleas relator, Supreme the Ohio cited modify not does release mechanism exclusive court’s pleas common noted the sentencing order. respondent’s county aof control regulate authority to furlough relator allows mechanism lease dealt Kohler Specifically, by sheriff. jail there is room time as until such inmates in- jail the diet of over with control brought individuals for those analogous examined The Court mates. their sentences. to serve back provided provision code general that R.C. argues also Respondent {¶ 26} R.C. 341.02. authority as contained same relator give construed cannot be 341.02 stated: The Court authority to court pleas the common or provisions are foregoing “The {¶ 23} R.C. because mechanism a release or They not need ambiguous. do sense no con- shall the sheriff provides 341.12 interpretation. strained any admit of if jails there to other vey prisoners read, applying there- to be They only need space. sufficient *8 of the words meaning common plain to the part: in provides, R.C. 341.12 27} {¶ difficulty in reach- no We have employed. having a suffi- county “In {¶ 28} Legislature conclusion ing the convey staff, shall the sheriff jail or cient by these intended definitely and clearly of the commission charged with any person of com- the court to commit provisions in imprisonment offense, sentenced promulgat- matter the entire pleas mon civil custody upon in jail, or county county government for the ing rules county which any a jail process, confined, therein persons jail and se- and most convenient considers sheriff diet, to be carried matter including the cure.” and deputies and his by the sheriff out relate statutes “[A]ll not sustain {¶ 29} law does The employes [sic]. read must be subject matter general same may he treat of the sheriff the claim pari materia. See v. Brooks until such time as there is room for them Maxfield (1924), St. 566, 725; Ohio 144 N.E. to serve the remainder of their sentences State, Bigelow, (1936) ex rel. v. and to bring into constitutional Butterfield 5, 490, Ohio St. 6 O.O. 4 N.E.2d 142. compliance. And, in reading such statutes in pari Additionally, we {¶ 31} should note that materia, and construing together, them under Title 7 of the Revised govern- Code this must give court such a reasonable ing municipal corporations, cities have an give construction as to the proper force alternative to sending their offenders to and effect to each and all such statutes. the county jail. R.C. provides: 753.03 Brooks, v. supra. interpre The Maxfield “A municipal legislative {¶ authority 32} tation application of statutes must be may, by ordinance, provide for the keeping viewed in a manner to carry legis out the of persons convicted and sentenced for lative intent of the sections. Benja See misdemeanors, during the term of their min v. (1957), Columbus 104 Ohio App. imprisonment, at place such legisla- 293, 439, 4 O.O.2d 695, 148 N.E.2d af authority determines, tive provided that (1957), firmed 103, 167 Ohio St. 4 O.O.2d place selected inis compli- substantial 113, 146 854; N.E.2d In (1915), re Hesse ance with the minimum standards for jails 230, 93 Ohio St. 112 N.E. 511. provi All in Ohio promulgated by department sions of the Revised Code bearing upon rehabilitation and correction. legisla- subject same matter should be con tive authority may enter into a contract strued harmoniously. State v. Glass under section 9.06 of the Revised Code for (1971), 27 Ohio App.2d 56 O.O.2d private operation and management of 893; N.E .2d State v. Hollenbacher any municipal correctional facility, only but (1920), 101 Ohio St. 129 N.E. 702. if facility only used house misde- This court the interpretation of related meanant inmates.” and co-existing statutes must harmonize give application full sum, to all such we acknowledge {¶ statutes 33} a munic they unless ipal are irreconcilable and in court’s hope authority sentence misde- less conflict. Couts v. (1950), Rose 152 meanants come before However, it. Ohio St. 40 O.O. N.E.2d Assembly 139.” General upon conferred Markets, Johnson’s Inc. v. common New Carlisle pleas courts the exclusive authori Dept. (1991), Health ty Ohio “to St.3d promulgate rules and regulations 1018, 1025. 567 N.E.2d the management and control the sheriff of the county jail the persons confined Applying these principles to the therein.” 341.02; R.C. State ex rel. Kohler bar, case at although R.C. 341.12 would Powell 418, 154 115 Ohio St. N.E. require the sheriff to convey inmates to 340, syllabus. Respondent can point to no jails, other that presupposes that there is such statutory or that gives caselaw a mu no other common pleas court order giving nicipal court specific such identical authori him a mechanism furlough inmates un- ty. Therefore, under the circumstances of der'R.C. 341.02. That also presupposes case, this the order of the Mahoning Coun that other counties willing are and able to *9 ty Common Pleas Court takes precedence accept inmates from Mahoning County and over respondent’s sentencing order. that Mahoning County is willing and able to it. afford The release mechanism or- Accordingly, this grants Court dered by the pleas common provides court the writ prohibition of against respondent, a logical mechanism furlough Judge inmates Kobly. Additionally, respondent’s

703 orders its own to enforce power A court’s par- indispensable join 19 motion Civ.R. it is since powers basic of most is one its is denied. ties judicial of the exercise the necessary to respon- against assessed Costs {¶ 35} Turner, Albin v. ex rel. State function. upon to serve is directed clerk The dent. 792, 527, 161 (1928), N.E. Ohio St. 118 and its judgment this of notice parties the court’s syllabus. the A one of paragraph R. Civ. journal. the entry upon of date “con punish it to allow contempt powers 58(B). of administration brings the which duct tends to or which disrespect, VUKOVICH, justice concurs. into J. in embarrass, a court or obstruct impede DEGENARO, See J. dissents. Wind its functions.” of performance opinion. dissenting (1971), 27 Ohio Tomaszczyk v. ham Bank Donofrio Gene /s/ of 815, one 55, paragraph 271 N.E.2d St.2d Donofrio, Presiding Judge Gene municipal court a Although syllabus. Joseph J. Vukovich 1901.13(A)(1) statute, /s/ R.C. of is a creature Joseph J. Vukovich Judge orders authority to enforce its it gives State contempt proceedings. See through /s/ Perry County v. ex rel. Johnson Mary DeGenaro Judge of 53, 54, 495 (1986), 25 Ohio St.3d DEGENARO, J., dissenting. 16. N.E.2d grant writ us has asked The relator recognized long have courts Ohio 1) respondent preventing prohibition of rule, people forces collateral bar 2) hearing and contempt conducting from issuing the court until obey orders court issuing from respondent prohibiting says other reviewing court aor the order is the relator one like the orders further (1958), Dota Beil v. ex rel. State wise. See major- The violating. of currently accused 634; 319, 315, 154 N.E.2d St. relief, 168 Ohio I must but both forms ity grants (1961), 172 Ohio St. Petition Green We its decision. from dissent respectfully for 59; Title Equity Natl. 274, 175 N.E.2d exer- respondent from prohibit cannot Rivera, App.3d 147 Ohio if v. Agency, even Inc. powers, contempt lawful cising her 2001-Ohio-7095; In re the re- unlikely 770 N.E.2d that it is we believe (1978),60 Ohio White Contempt the relator to find be able spondent will 499; Ohio 62, 64-65, N.E.2d 395 App.2d believed If the relator contempt. Intern. v. Local authority to Ass’n Contractors did not have spondent Carriers’, Union Bldg. and C.L. then he should question, Hod issue order App. (1959), he Ohio before a writ of America sought have words, person Further- other that order. to follow 162 N.E.2d decided not pro- a court jurisdiction violate more, do not we is not entitled beyond making similar from was believes respondent party hibit the because Accordingly, we v. cases. authority in future to issue. Collins orders the court’s judgment summary App.3d grant Ohio should Collins writ of deny the relator’s true especially respondent This 746 N.E.2d someone prohibition. to hold court seeks when the trial Co. contempt. Citicasters in criminal is accused case, the relator In this Riverbend, Inc., No. 7th Dist. Stop respondent’s one of to follow failing ¶ 41-53, 2002-0hio-5197, at CA to hold seeks respondent orders excep- only *8-10. at violation. WL contempt this the relator *10 tion to this rule is when ders, the order at issue someone “should not be held con transparently invalid or only has a frivo- tempt in acting in disobedience to either of ¶ pretense lous to validity. Rivera at error, courts. The any, if was not citing Walker v. Birmingham (1967), upon part [person subject to the 307, 315, U.S. 87 S.Ct. competing L.Ed.2d orders].” Boone v. Riddle (Ky. App.1905), Thus, S.W. if the relator acting was in accordance with an case, In this respondent’s order was order from the court of pleas, common neither transparently only invalid nor had then he should raise this as a defense a pretense validity. frivolous The re- within the contempt proceeding before the spondent clearly had authority to sen- municipal court. tence Tomlin after he was convicted violence, domestic offense, misdemeanor If the relator wished to challenge the respondent’s court. validity R.C. of the trial court’s order without 1901.20(A)(1);2919.25. The respondent did subjecting himself to the possibility that he obviously not authority lack the to order might be held in contempt, then he should the Sheriff not to release early, Tomlin as have sought prohibition writ of before he discussed below. Accordingly, the relator chose disobey respondent’s order. was bound to respondent’s follow the order We cannot eviscerate the respondent’s respondent power has the to hold ability to enforce its orders in an effort to a contempt if hearing it believes the rela- excuse the delay relator’s in protecting his tor comply did not with its order. rights. The issues the majority raises in its Finally, we grant cannot relator’s re

opinion are all defenses to a contempt quest prohibit that we respondent action, not why reasons the trial court from issuing any “do not release” orders in lacks authority to enforce its own orders. the future. A writ prohibition only For example, the majority noted the prohibits rela- a court from proceeding where tor’s claim that Tomlin was furloughed, there is a case pending particu before that released, rather than and that this did not lar court and we cannot issue a writ of violate the order. Whether an order to prevent some future action been violated is one of the central issues to that a court is not about to take. Com in any resolved contempt proceeding. mercial Sav. Bank Wyandot We prevent cannot the trial court from Court Common Pleas 35 Ohio holding a contempt hearing merely be- St.3d 519 N.E.2d 647. cannot We cause we suspect that it cannot factually enjoin respondent from issuing this find the relator in contempt. kind of order in the future because we do not original jurisdiction in injunction. Likewise, the fact the court of com- Id. pleas mon has issued a contradictory order does not respondent divest the of its ability above, As stated relator has asked for to enforce its own Instead, order. this is two forms relief and we grant cannot good cause for obeying the respon- either of those. We prohibit cannot dent’s order which should be raised at a respondent from holding a contempt hear- show cause hearing. There are no Ohio ing, even if suspect we that it cannot hold cases dealing with this issue directly but as the relator in contempt for various fact- a Kentucky long court ago explained in reasons, a based enjoin we cannot case involving circumstances, similar when from entering particular type of order in two courts have issued contradictory or- the future. If the relator believes that the *11 re- was not instructions “do not release” it order which' has issued respondent jail personnel. by ceived issue, then authority to the have does before of prohibition writ county’s a seek he should also concerned case order. ignore mechanism, violate com- which he decides release emergency violat- jail he has after to limit seeking prohibition judges devised By pleas court mon are too actions order, judge declared relator’s A federal population. ed the March unconstitutional little, jail to late. too staffing overcrowding of because re- reasons, grant should we these For shortages. judgment. summary for motion spondent’s done is How this prohi- writ entitled is not Relator on depending he seeks. qualify, who bition Inmates crimes, either serve of their seriousness Mary DeGenaro /s/ have or space is available jail when time DeGENARO, JUDGE MARY suspended or converted sentences their APPENDIX judges. sheriff sides release that the argued Kobly Judge had or- May modifying sentence her was Date mechanism ders. a will discuss county City and officials and Jo- space. county jail Donofrio judges Gene to share Appellate today plan re- “The ruled otherwise. seph Vukovich SHAULIS By DEBORA common by the ordered mechanism lease WRITER STAFF VINDICATOR mechanism logical provides pleas court District 7th YOUNGSTOWN—The as time until such inmates furlough municipal that has ruled Appeals re- them to serve for is room there aren’t pleas courts and common courts bring sentences their mainder of managing comes to when equals compliance,” constitutional jail into and its inmates. county jail majority opin- in the Donofrio wrote Judge ion. appel- Monday, issued opinion 2-1 In a Assembly a writ granted Furthermore, judges

late General County Sheriff Mahoning courts exclu- pleas sought common ago gave long Eliza- Judge There against operations. Wellington A. authority over Randall sive Municipal gives law that Youngstown statutory or case Kobly A. “no such beth identical specific such municipal court Court. Donofrio wrote. Judge authority,” order Kobly cannot Judge means That Mary Judge hearing opinion, dissenting attend a show-cause In her Wellington court appellate contempt-of-court said led to DeGenaro could exercis- Kobly “from Judge stop shouldn’t charge. if we even contempt powers, her lawful ing whom Youngstown, Tomlin Ronald bewill unlikely [she] it is believe November last Kobly sentenced Judge contempt.” [Wellington] to find able misdemeanor county jail days seven Gains, who Paul J. County Prosecutor emergency violence, received domestic behalf, Wellington’s on motions filed court the con- judge’s despite the lease appeals surprised that he wasn’t said part said Wellington trary. favor. county’s in the ruled court handwritten her entry with journal judge’s *12 weighing “We are options our at the municipal judges right to create their moment,” Atty. Anthony Farris, said own J. release mechanism over city’s por- tion city’s jail. of the prosecutor. chief assistant The says city city will pay for defendants who are charged could file an appeal with Supreme Ohio breaking municipal ordinances but not Court or seek a writ regard- state statutes. ing the mechanism, emergency release he said. “We would really like to work this out city,” with the Gains said. path

Neither will need to be if taken city and county can come to terms on “We’ve never been adverse to agree- bed allocations. supposed That’s to be the ment,” Farris said. “It’s the terms that topic of a meeting today between county are at issue.” Ssh Mayor officials and Jay Williams. @vindy.com

shaulis The county Criminal Working Justice © Vindy.com. All rights reserved. Group proposed reserving beds for A service of The Vindicator. 103 Vindica- city prisoners at a rate of per day, plus $25 tor Square. Youngstown, OH 44503 meals and expenses, medical giving

APPENDIX *13 70

APPENDIX 4 *14 ROBERTS, Nathaniel et Court, United States District al., Plaintiff(s), Ohio, N.D. Eastern Division. June COUNTY, etc.,

MAHONING Armbruster, Robert P. Thomas Kelley, Defendant(s). al., et Armbruster, Kot, Kelley, Baker, Honeck & OH, Akron, for Plaintiffs. No. 4:03 CV 2329.