State ex rel. Russo v. McDonnellState ex rel. Russo v. McDonnell
Lead Opinion
{¶ 1} On November 14, 2005, relator, Cuyahoga County Court of Common Pleas Judge Nancy Margaret Russo, filed this action seeking a writ of prohibition to prevent Judge Richard J. McMonagle, who was then the administrative judge of the Cuyahoga County Court of Common Pleas, from facilitating jury trials in civil cases referred to private judges pursuant to
Court Policy on Private Judging
{¶ 2} Under Sup.R. 4(B), the administrative judge has “full responsibility and control over the administration, docket, and calendar of the court or division” and
{¶ 3} “1) Notification to the Clerk of the Court of Common Pleas must be made at least six weeks prior to the date of trial;
{¶ 4} “2) Notice to the Administrative Judge must be made contemporaneously with notice to the Clerk of Courts;
{¶ 5} “3) The Administrative Judge will then order an additional 50 jurors to be called by the Jury Commissioner to help alleviate any possible burden on other judges’ jury trials;
{¶ 6} “4) Trials by a private judge may only commence on a Wednesday; and
{¶ 7} “5) The Court will endeavor to make courtrooms available, but cannot guarantee the use of a County courtroom.
{¶ 8} “6) No Court staff except court reporters will be made available to the private judge. The private judge must supply their own bailiff etc. Court reporters will be made available and only Official Court Reporters may be used to transcribe proceedings.”
{¶ 9} The administrative judge cited
Peffer v. Cleveland Clinic Foundation
{¶ 10} Relator is the judge assigned in Peffer v. Cleveland Clinic Found., Cuyahoga C.P. case No. CV-03-496855. The parties in Peffer entered into an agreement to refer the case in its entirety for a jury trial under
{¶ 11} The Court of Appeals for Cuyahoga County subsequently granted the plaintiffs in Peffer a writ of prohibition to prevent relator from proceeding in the case because the administrative judge’s orders “unambiguously terminated [relator’s] authority over the underlying case and she is without power or authority to act further on that case.” State ex rel. Peffer v. Russo, Cuyahoga App. No.
Austin v. MetroHealth Medical Center
{¶ 12} Austin v. MetroHealth Med. Ctr., Cuyahoga C.P. case No. CV-04-538701, a case initially assigned to Judge John D. Sutula, is one of several other cases in the Cuyahoga County Common Pleas Court in which the parties agreed to refer the case to a retired judge for a jury trial under
{¶ 13} The Court of Appeals for Cuyahoga County granted the parties in Austin an alternative writ of mandamus on their claim to compel the trial court judge to refer the case to a retired judge for jury trial and prohibited the trial court judge from taking any further action while the mandamus case was pending.
{¶ 14} On November 23, 2005, the court of appeals dismissed the complaint because “
Use of Public Jury Pool and Public Resources
{¶ 15} Relator claims that the administrative judge directed the assignment of juries to private proceedings under
{¶ 16} The administrative judge also permitted common pleas courtrooms and other rooms operated and funded by the county to be used for proceedings under
(¶ 17} In addition, the administrative judge allowed the use of other court personnel and resources, e.g., security, copying, and utilities, for these proceedings.
Prohibition Action
{¶ 18} On November 14, 2005, relator filed this action for a writ of prohibition to prevent the administrative judge from “compelling or facilitating jury trials in
{¶ 19} On December 28, 2005, we ordered oral argument for January 24, 2006. On January 5, 2006, we received notification that Judge Nancy R. McDonnell has now succeeded Judge McMonagle as the administrative judge of the common pleas court. Pursuant to S.Ct.Prac.R. X(2) and
S.Ct.Prac.R. X(5) Determination
{¶ 20} In accordance with S.Ct.Prac.R. X(5), we must determine whether dismissal, an alternative writ, or a peremptory writ is appropriate. If the pertinent facts are uncontroverted and it appears beyond doubt that relator is entitled to the requested writ, we will grant a peremptory writ. State ex rel. Morenz v. Kerr,
Prohibition: General Standards
{¶ 21} In order to be entitled to the requested extraordinary relief in prohibition, relator must establish that (1) the administrative judge is about to exercise judicial power, (2) the exercise of this power is not authorized by law, and (3) denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. State ex rel. Brady v. Pianka,
{¶ 22} As to the remaining writ requirements, “ ‘[i]f a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions.’ ” State ex rel. Columbia Gas of Ohio, Inc. v. Henson,
Prohibition: Proceedings under
{¶ 23} The administrative judge authorized jury trials before retired judges under
{¶ 24}
{¶ 25} Consistent with this general practice,
{¶ 26}
{¶ 28} “(a) Designates the retired judge to whom the referral or submission is to be made;
{¶ 29} “(b) If a submission is to be made, describes in detail the specific issue or question to be submitted;
{¶ 30} “(c) Indicates either of the following:
{¶ 31} “(i) That the action or proceeding in its entirety is to be referred to, and is to be tried, determined, and adjudicated by that retired judge;
{¶ 32} “(ii) Indicates that the issue or question is to be submitted, and is to be tried and determined by that retired judge.
{¶ 33} “(d) Indicates that the parties unit assume the responsibility for providing facilities, equipment, and personnel reasonably needed by the retired judge during his consideration of the action or proceeding and will pay all costs arising out of the provision of the facilities, equipment, and personnel;
{¶ 34} “(e) Identifies an amount of compensation to be paid by the parties to the retired judge for his services and the manner of payment of the compensation.” (Emphasis added.)
{¶ 35} The parties must file a copy of the agreement with the clerk of courts.
Prohibition: Jury Trials in Private-Judging Cases
{¶ 36} The administrative judge relies on
{¶ 37} “In construing a statute, our paramount concern is legislative intent.” State ex rel. Musial v. N. Olmsted,
{¶ 38}
{¶ 39} Similarly, Gov.Jud.R. VI(1)(A) provides, “Parties to a civil action or proceeding pending in a court of common pleas, municipal court, or county court who agree to have their action or proceeding referred or issue or question submitted to a voluntarily retired judge pursuant to
{¶ 40}
(¶ 41} In specifically limiting referrals and submissions to a private judge in accordance with
{¶ 43} “In contrast to appellant’s claim,
{¶ 44} Similarly, we have held that other statutory provisions specifying a determination by the court exclude a jury determination. Hoops v. United Tel. Co. of Ohio (1990),
{¶ 45} Thus, our own precedent supports the conclusion that the requirement in
{¶ 46} Further, when the General Assembly intends that a case may be tried by a jury, it has manifested its intent with appropriate language. See, e.g.,
{¶ 47} The administrative judge nevertheless asserts that jury trials are permissible in private-judge referrals in accordance with
{¶ 48} Nor does the
{¶ 49} In this regard,
{¶ 50} In effect, the administrative judge requests that we add language to
{¶ 51} The administrative judge further contends that because
{¶ 52} There is no right to a jury trial, however, unless that right is extended by statute or existed at common law prior to the adoption of the Ohio Constitution. Kneisley,
{¶ 53} Moreover, the right to a jury trial may be waived. “ ‘Section 5 of Article I of the Ohio Constitution does not prevent a court from giving effect to a waiver of a jury trial by a party who has a right to a jury trial.’ ” Shimko v. Lobe,
{¶ 54} As with other alternative-dispute-resolution techniques, parties entering into an agreement to refer a case or issues to a private judge under
{¶ 55} Indeed, the Court of Appeals for Cuyahoga County recently reached a similar conclusion in State ex rel. MetroHealth Med. Ctr. v. Sutula, Cuyahoga App. No. 87184,
{¶ 56} Based on the foregoing, we conclude that the administrative judge patently and unambiguously lacks jurisdiction to compel or facilitate jury trials for civil actions or issues submitted to a retired judge pursuant to
Prohibition: Use of Court Resources
{¶ 57} Relator also requests a writ of prohibition to prevent the administrative judge from directing or permitting the use of the common pleas court’s facilities, equipment, resources, utilities, and personnel in
{¶ 59} Moreover, as relator seeks the writ to prevent the use of court resources for all
Conclusion
{¶ 60} “Ohio’s leadership in recognizing the benefits of alternative dispute resolution has been evident throughout the state * * *.” DeRolph v. State (2001),
{¶ 61} Therefore, we grant a peremptory writ of prohibition to prevent respondent from compelling or facilitating jury trials in
Writ granted in part and denied in part.
Notes
. As used in Gov.Jud.R. VI, “voluntarily retired judge” generally means “any person who was elected to and served on an Ohio court without being defeated in an election for new or continued service on that court.” Gov.Jud.R. VI(1)(C)(2).
Dissenting Opinion
dissenting.
{¶ 62} The majority opinion’s interpretation of
{¶ 63} The majority opinion states that “
{¶ 64} Section 5, Article I of the Ohio Constitution states, “The right of trial by jury shall be inviolate * * See, also,
{¶ 65} Finally, the majority opinion gratuitously (because it is not necessary to resolve the case) states, “There is no right to a jury trial, however, unless that right is extended by statute or existed at common law prior to the adoption of the Ohio Constitution. Kneisley [v. Lattimer-Stevens Co. (1988) ], 40 Ohio St.3d [354] 356,
{¶ 66} The Internet had not been invented when the Constitution of the United States was ratified. Yet no rational jurist would suggest that the right to free speech does not apply to articles, blogs, or mere musings posted on the Internet. The religions of the Seventh Day Adventists, the Church of Jesus Christ of Latter-Day Saints (the Mormons), and the Church of Christ, Scientist, to name just a few, were not practiced when the Constitution of the United States was ratified. Yet no rational jurist would suggest that the right to freedom of religion does not extend to the practitioners of these religions. Why is the constitutional right to a trial by jury different? For no rational reason. I dissent.