IN RELATION OF STATE OF OHIO, KIMBERLY KENDALL CORRAL v. DOMINIC VITANTONIO
No. 108880
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
January 8, 2020
[Cite as State ex rel. Corral v. Vitantonio, 2020-Ohio-36.]
PATRICIA ANN BLACKMON, J.
Writ оf Quo Warranto. Motion Nos. 532007 and 530875. Order No. 530875.
JUDGMENT: DENIED
DATED: January 8, 2020
Appearances:
Kimberly Kendall Corral, pro se.
Argie, D‘Amico & Vitantonio, Dominic J. Vitantonio, for respondent.
PATRICIA ANN BLACKMON, J.:
{¶ 1} On August 6, 2019, the relator, Kimberly Kendall Corral, filed a motion for leave to file an action in quo warranto with a proposed complaint for quo warranto. The gravamen of the matter is that Corral is seeking to remove the
{¶ 2} As gleaned from the filings in this case, on August 12, 2017, city of Euclid Police Officer Michael Amiott arrested Richard Hubbard. A video recording of the arrest appears to show Amiott using excessive forcе against Hubbard.1 Subsequently, in December 2018, seven citizens of Euclid filed affidavits in Euclid Municipal Court, pursuant to
{¶ 3} Corral, who is alleged to be Amiott‘s defense counsel, claims that Vitantonio wrongfully holds the office of Special Prosecutor for the city of Euclid and should be removed through quo warranto. First, she alleges that he was improperly appointed to the office. Euclid Municipal Ordinance 139.01 provides in pertinent part as follows: “In the office of the Director of Law, there shall be such assistants and special counsel as shall be authorized by Council. * * * One of the assistants shall be the Police Prosecutor and the other an Assistant Law Director, both of whom shall perform such duties as shall be delegated to them by either the Mayor or the Director of Law.” Corral concludes that beсause the director of law, and not council, appointed Vitantonio, he holds the position unlawfully.
{¶ 4} Corral further claims that conflicts of interest also disqualify Vitantonio as Special Prosecutor. Vitantonio is counsel for the Ohio Patrolmen‘s Benevolent Association. At some unspecified time in the past, Amiott was a member of the Ohio Patrolmen‘s Benevolent Association and “sought and was denied representation by the OPBA.” Thus, “Vitаntonio is not in a position to prosecute a person which his concurrent client refused to defend.” (Pg. 2 of memorandum of law in support of motion for leave.)
{¶ 6} Corral argues that Ohio Rules of Professional Conduct prohibit any conflict of interest that may arise out of private practice when a lawyer is working on behalf of the government.
{¶ 8} The exception is stated in
{¶ 9} Moreover, quo warranto, like the other extraordinary writs, will not lie if there exists an adequate remedy аt law. State ex rel. Johnson v. Talikka, 71 Ohio St.3d 109, 1994-Ohio-260, 642 N.E.2d 353.
{¶ 10} Corral has not convinced this court that it should, in the exercise of its discretion, allow her or another private attorney to seek Vitantonio‘s ouster. First, the court is not convinced that the prerequisite of the prosecuting attorney being absent, disabled, or interested in the quo warranto action has been fulfilled. By its plain wording, the statute envisions that the county prosecuting attorney, as the representative of the statе, would bring the action protecting state sovereignty. The statute does not extend this ability to municipal law directors. Corral seizes upon the language of “local prosecutor” in State ex rel. Kohl v. Dunipace, 56 Ohio St.2d 120, 382 N.E.2d 1358 (1978), as the Supreme Court of Ohio‘s acknowledgement that
{¶ 11} Next, the court is not convinced that Vitantonio was improperly appointed. Euclid Municipal Ordinance 129.03 provides in pertinent part as follows: “When approved by the Mayor, the Director of Law shall be authorized to
{¶ 12} In any event, there are adequate remedies at law in the trial court to contest the appointment. In Talikka, 71 Ohio St.3d 109, the defendant in a criminal case sought to remove the special prosecutor through a writ of quo warranto. The Supreme Court of Ohio аffirmed the denial of the writ, because the defendant had the adequate remedy at law of filing a motion to dismiss the indictment for lack of authority and then appealing if the motion was overruled and the defendant cоnvicted. Similarly, in State ex rel. Jackson v. Allen, 65 Ohio St.3d 37, 1992-Ohio-27, 599 N.E.2d 696, the Supreme Court denied a writ of quo warranto to remove a special prosecutor, because the defendant had an adequate remedy at law by means
{¶ 13} The claims of conflict of interest may and should be reviewed by the trial court. In State v. Gillard, 64 Ohio St.3d 304, 595 N.E.2d 878 (1992), syllabus, the Supreme Court of Ohio ruled that when a trial court knows or reasonably should know of an attorney‘s conflict of interest, it has an affirmative duty to inquire whether the conflict of interest actually exists. Although Gillard concerned a defense attorney‘s conflict of interest, there is no reason why a prosecutor‘s conflict should not be examined first by the trial court and then the decision appealed if necessary. In the present case, defense counsel would be at liberty to file an аppropriate motion raising the conflict of interest issue.
{¶ 14} Accordingly, this court denies the motion for leave to file a writ of quo warranto. The court also denies the respondent‘s motion for attorney feеs. Relator to pay costs. This court directs the clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as required by
{¶ 15} Motion for leave denied.
PATRICIA ANN BLACKMON, JUDGE
SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR