THE STATE EX REL. HECK ET AL., v. KESSLER, JUDGE.
No. 94-1831
SUPREME COURT OF OHIO
April 26, 1995
72 Ohio St.3d 98 | 1995-Ohio-304
Prоhibition to prevent judge from exercising jurisdiction in an aggravated menacing case—Mandamus to compel judge to vacate prior decisions and to try defendant on an ethnic intimidation charge—Writs granted, when.
(No. 94-1831—Submitted February 21, 1995—Decided April 26, 1995.)
IN MANDAMUS AND PROHIBITION.
{¶ 1} In cases arising from separate incidents, James B. May, Jr. and Mark J. Staton were charged with ethnic intimidation,
{¶ 3} The cases in Wyant I, including May and Staton, were remanded to this court by the Supreme Court of the United States for the purpose of “further consideration in light of Wisconsin v. Mitchell, 508 U.S. 476 [113 S.Ct. 2194, 124 L.Ed.2d 436] (1993).” See (1993), 509 U.S. 917, 113 S.Ct. 2954, 125 L.Ed.2d 656. In State v. Wyant (1994), 68 Ohio St.3d 162, 624 N.E.2d 722 (”Wyant II“), we vacated Wyant I and held in the syllabus that ”
{¶ 4} Although May and Staton did not file a motiоn for rehearing, this court sua sponte denied rehearing. Other defendants in Wyant II filed motions for rehearing, which argued, in part, that this court had not decided other constitutional issues raised regarding
{¶ 5} On remand from this court, May and Staton filed motions to dismiss the ethnic intimidation charges. On June 30 and July 1, 1994, Judge Kessler dismissed those charges and further ordered that the cases be set for trial on the
{¶ 6} On August 23, 1994, relators, Montgomery County Prosecuting Attorney Mathias H. Heck, Jr., and then-Ohio Attorney General Lee Fisher, filed a complaint in this court seeking (1) a writ of mandamus ordering Judge Kessler to vacate his June 30 and July 1, 1994 decisions and set the matter for trial on the ethnic intimidatiоn charges, and (2) a writ of prohibition preventing Judge Kessler from requiring the state to proceed against May and Staton on the aggravated menacing charges. On October 19, 1994, we overruled Judge Kessler‘s motion to dismiss and granted an alternative writ. The Court of Appeals for Montgomery County granted leave to the state to appeal Judge Kessler‘s decisions, but later stayed further appellate proceedings pending the outcome of relators’ action in this court. On January 18, 1995, we denied a request for oral argument.
{¶ 7} The cause is now before this сourt for a consideration of the parties’ arguments and submitted evidence.
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Carley J. Ingram, Assistant Prosecuting Attorney; Betty D. Montgomery, Attorney General, and Simon B. Karas, Deputy Chief Counsel, for relators.
David H. Bodiker, Ohio Public Defender, and Susan Gellman, Assistant Public Defender, for respondent.
Per Curiam.
{¶ 8} Initially, relators note that Staton has died and that the action is moot as to him. Accordingly, that portion of relators’ complaint for extraordinary relief
{¶ 9} As to their claim for a writ of mandamus, relators must establish a clear legal right to have Judge Kessler try May on the ethnic intimidation charge, a corresponding clear legal duty on the part оf Judge Kessler, and the absence of a plain and adequate remedy at law. State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490, 633 N.E.2d 1128, 1129. Mandamus may not be employed as a substitute for appeal from an interlocutory order. State ex rel. Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate Div. (1992), 65 Ohio St.3d 323, 328, 603 N.E.2d 1005, 1009; see, generally,
{¶ 10} Generally, the availability of a discretionаry appeal is an adequate remedy that will preclude a writ of mandamus. State ex rel. Birdsall v. Stephenson (1994), 68 Ohio St.3d 353, 356, 626 N.E.2d 946, 949. In other words, extraordinary remedies like mandamus and prohibition may not be employed before trial on the merits as a substitute for appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court having proper jurisdiction. State ex rel. Levin v. Sheffield Lake (1994), 70 Ohio St.3d 104, 109, 637 N.E.2d 319, 324.
{¶ 11} Nevertheless, in Ohio, it is recognized that a writ of mandamus is an appropriate remedy to require a lower court to comply with an appellate court‘s mandate directed to that court. State ex rel. Potain v. Mathews (1979), 59 Ohio St.2d 29, 13 O.O.3d 17, 319 N.E.2d 343; State ex rel. Schneider v. Brewer (1951), 155 Ohio St. 203, 44 O.O. 170, 98 N.E.2d 2. This view сomports with the holdings of the Supreme Court of the United States, as well as other federal and state courts. Vendo Co. v. Lektro-Vend Corp. (1978), 434 U.S. 425, 427-428, 98 S.Ct. 702, 703- 704, 54 L.Ed.2d 659, 662-663; In re Sanford Fork & Tool Co. (1895), 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414, 416; Casey v. Planned Parenthood of Southeastern Pennsylvania (C.A.3, 1994), 14 F.3d 848, 856-857; Hartford Acc. & Indemn. Co. v. Gulf Ins. Co. (C.A.7, 1988), 837 F.2d 767, 774; Cleveland v. Fed. Power Comm. (C.A.D.C.1977), 561 F.2d 344; Ex Parte Ufford (Ala.1994), 642 So.2d 973; see, generally, 52 American Jurisprudence 2d (1970), Mandamus, Section 355.
{¶ 12} The Supreme Court of the United States has held:
“When a case has been once decided by this court on appeal, and remanded to the Circuit Court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The Circuit Court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. That court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded. *** If the Circuit Court mistakes or misconstrues the decree of this court, and does not give full effect to the mandate, its action may be controlled, either upon a new appeal (if involving a sufficient amount) or by a writ of mandamus to execute the mandate of this court. *** But the Circuit Court may consider and decide any matters left open by the mandate of this court; and its decision of such matters can be reviewed by a new appeal only. *** The opinion delivered by this court, at the time of rendering its decree, may be consulted to ascertain what was intended by its mandate; and, either upon an application for a writ of mandamus, or upon a new appeal, it is for this court to construe its own mandate, and to act accordingly.” In re Sanford Fork & Tool Co., supra, 160 U.S. at 255-256, 16 S.Ct. at 293, 40 L.Ed. at 416; Vendo Co., supra, 434 U.S. at 427-428, 98 S.Ct. at 703-704, 54 L.Ed.2d at 662-663.
“[E]ven an interlocutory appeal wоuld be an inadequate alternative to mandamus in these circumstances. The purpose of an appeal is to establish legal rights. In contrast, the purpose of mandamus is to enforce legal rights that have already been established. Mandamus proceeds on the assumption that the petitioner has the legal right asserted. In this case [the petitioner‘s] position was that the court of appeals had already decided that the stock did not need to be valued. If he were to appeal he would be asking the court of appеals to say again what he maintained the court had already said. Mandamus was the only means available to him to put teeth into that adjudication. If he were wrong in his interpretation of the decree he would not be entitled to mandamus, but if he were right mandamus was the appropriate remedy. ***” Hewitt v. Ryan (Iowa 1984), 356 N.W.2d 230, 234.
{¶ 14} Based upon the foregoing authorities, the availability of an appeal for the state, from Judge Kessler‘s decision dismissing the ethnic intimidation charge against May and ordering May to stand trial on the underlying aggravated menacing charge, does not preclude rеlators’ action for a writ of mandamus to compel Judge Kessler‘s compliance with the mandate in Wyant II. To hold otherwise might lead to the result of a lower court perpetually refusing a superior court‘s mandate, necessitating repeated, ineffective appeals.
{¶ 16} Judge Kessler contends that mаndamus will not lie because he merely ruled on the constitutionality of
{¶ 17} Judge Kessler further contends that his dismissal of the ethnic intimidation charges did not exceed this court‘s mandate in Wyant II because the dismissal was on grounds other than free speech rights of the
{¶ 18} Furthеr, under S.Ct.R.Rep.Op. 1(B), “[t]he syllabus of a Supreme Court opinion states the controlling point or points of law decided in and necessarily arising from the facts of the specific case before the Court for adjudication.” (Emphasis added.) See, also, Worrell v. Athens Cty. Court of Common Pleas (1994), 69 Ohio St.3d 491, 495, 633 N.E.2d 1130, 1134. The vagueness issue was raised in Wyant I and II, as well as in some of the motions for rehearing.
{¶ 19} On remand from this court, Judge Kessler again dismissed the ethnic intimidation charges against May based upon the prior court of appeals’ decision because he found that he was “constrained to follow the unreversed decision of [the court of appeals in Wyant I].” Judge Kessler now concedes that the court of appeals’ decision was reversed by this court in Wyant II. Since the issue of the alleged unconstitutional vagueness of
{¶ 20} As to relators’ claim for a writ of prohibition, they must establish that (1) Judge Kessler is about to exercise judicial or quasi-judicial power, (2) the exercise of that pоwer is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Keenan, supra, 69 Ohio St.3d at 178, 631 N.E.2d at 121. While
“The doctrine of law of the case is necessary, not only for consistency of result and the termination of litigation, but also to preserve the structure of the judiciary as set forth in the
Constitution of Ohio .Article IV of the Ohio Constitution designates а system of ‘superior’ and ‘inferior’ courts, each possessing a distinct function. The Constitution does not grant to a court of common pleas jurisdiction to review a prior mandate of a court of appeals.” (Emphasis added.)
{¶ 21} Consequently, relators are entitled to a writ рrohibiting Judge Kessler from proceeding to try May on the lesser aggravated menacing charge alone. State ex rel. TRW, supra.
{¶ 22} Accordingly, we grant the requested writs of mandamus and prohibition to relators as to May‘s criminal case and dismiss as moot that portion of the complaint relating to Staton‘s criminal case.
Writs granted in part and dismissed in part.