THE STATE EX REL. SUWALSKI, APPELLEE, v. PEELER, JUDGE; EWING, APPELLANT.
No. 2020-0755
Supreme Court of Ohio
Submitted April 27, 2021—Decided November 18, 2021
Slip Opinion No. 2021-Ohio-4061
APPEAL from the Court of Appeals for Warren County, No. CA2019-05-053, 2020-Ohio-3233.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Suwalksi v. Peeler, Slip Opinion No. 2021-Ohio-4061.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
Prohibition—Marsy‘s Law,
{¶ 1} Appellant, Roy Ewing, was convicted in Warren County of misdemeanor domestic violence for assaulting his then-wife, appellee, Jamie Suwalski. As a result
{¶ 2} Suwalski sought a writ of prohibition in the Twelfth District Court of Appeals, seeking to prevent Judge Peeler‘s order from being effective and invoking
{¶ 3} We agree that a writ of prohibition is warranted, but our rationale for that conclusion differs from that of the court of appeals. Because Suwalski has established the elements necessary for a writ of prohibition, we affirm the judgment of the court of appeals.
I. Relevant Background
A. Ewing Is Convicted of Domestic Violence for Assaulting Suwalski
{¶ 4} In April 2017, Ewing was convicted in Warren County of domestic violence under
B. Relevant Firearms-Disability and Restoration Statutes
{¶ 5} Ewing‘s conviction for misdemeanor domestic violence triggered his firearms disability under the federal Gun Control Act,
It shall be unlawful for any person * * * who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.2
{¶ 6} The firearms restrictions imposed by
A person shall not be considered to have been convicted of such an offense for purposes of [
18 U.S.C. 921 et seq. ] if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
(Emphasis added.)
{¶ 7} The law of the jurisdiction in which a person was convicted determines whether the person has had his “civil rights restored” within the meaning of the Gun Control Act. See Caron v. United States, 524 U.S. 308, 312-313, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998). Governing such a determination under Ohio law is
C. Ewing Applies for Relief from His Firearms Disability
{¶ 8} In February 2019, Ewing filed in the Warren County Court of Common Pleas an application for relief under
{¶ 9} Judge Peeler granted Ewing‘s application and ordered that he be “restored to all civil firearm rights to the extent enjoyed by any citizen.” The state did not appeal Judge Peeler‘s ruling.
D. Suwalski Seeks Relief in Prohibition
{¶ 10} One month after Judge Peeler granted Ewing‘s application, Suwalski filed a complaint for a writ of prohibition in the Twelfth District. Suwalski alleged that Judge Peeler lacked jurisdiction to relieve Ewing of his federal firearms disability and that Judge Peeler‘s order doing so violated her rights, as a crime victim, to safety and protection under Marsy‘s Law,
{¶ 11} The court of appeals granted Ewing‘s motion to intervene, and the case
{¶ 12} Ewing appealed to this court as of right.
II. Analysis
{¶ 13} In an appeal of right from a court of appeals’ judgment in an extraordinary-writ action, we review the judgment as if the action had been originally filed in this court. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 166-167, 364 N.E.2d 1 (1977).
A. Marsy‘s Law
{¶ 14} Marsy‘s Law was established on February 5, 2018, when
(1) to be treated with fairness and respect for the victim‘s safety, dignity and privacy;
(2) upon request, to reasonable and timely notice of all public proceedings involving the criminal offense or delinquent act against the victim, and to be present at all such proceedings;
(3) to be heard in any public proceeding involving release, plea, sentencing, disposition, or parole, or in any public proceeding in which a right of the victim is implicated;
(4) to reasonable protection from the accused or any person acting on behalf of the accused;
(5) upon request, to reasonable notice of any release or escape of the accused;
(6) except as authorized by section 10 of Article I of th[e] constitution, to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused;
(7) to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim;
(8) to proceedings free from unreasonable delay and a prompt conclusion of the case;
(9) upon request, to confer with the attorney for the government; and
(10) to be informed, in writing, of all rights enumerated in this section.
Id.
{¶ 15} Marsy‘s Law additionally provides victims with the ability to vindicate those rights in the courts:
The victim, the attorney for the government upon request of the victim, or the victim‘s other lawful representative, in any proceeding involving the criminal offense or delinquent act against the victim or in which the victim‘s rights are implicated, may assert the rights enumerated in this section and any other right afforded to the victim by law. If the relief sought is denied, the victim or the victim‘s lawful
representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition.
B. Ewing‘s Exhaustion Argument
{¶ 16} In his first proposition of law, Ewing argues that Suwalski failed to “exhaust” her claim in the trial court before she sought relief in the court of appeals.
{¶ 17} We do not find Ewing‘s argument persuasive.
{¶ 18} We hold that Suwalski sufficiently asserted her rights in the common pleas court. And having done so, she did not fail to exhaust her claim and had the right to petition the court of appeals for relief after Judge Peeler granted Ewing‘s application over her objection.
C. Suwalski Invoked Rights Protected by Marsy‘s Law
{¶ 19} In his second proposition of law, Ewing challenges the notion that Marsy‘s Law is applicable in this case. Ewing contends that an application for relief from a firearms disability does not implicate any of the victims’ rights enumerated in Marsy‘s Law and that Suwalski therefore had no right to petition the court of appeals for relief under Marsy‘s Law.
{¶ 20} We reject Ewing‘s argument. At least two rights under Marsy‘s Law are applicable here—the right “to be treated with fairness and respect for the victim‘s safety” and the right “to reasonable protection from the accused.”
{¶ 21} In determining the meaning of the phrase “involving the criminal offense” in
D. Res Judicata
{¶ 22} In his third proposition of law, Ewing posits that Suwalski‘s prohibition action is barred by res judicata. Under the doctrine of res judicata, a prior valid judgment on the merits bars a subsequent action between the same parties, or their privies, as to all claims that were or might have been litigated in the prior action. See Grava v. Parkman Twp., 73 Ohio St.3d 379, 381-382, 653 N.E.2d 226 (1995). Without citing any applicable legal authority, Ewing argues that Judge Peeler‘s order, which the state did not appeal, is a prior valid judgment on the merits that has the effect of res judicata on Suwalski‘s prohibition action.
{¶ 23}
E. The Merits of Suwalski‘s Prohibition Action
{¶ 24} In his final proposition of law, Ewing argues that prohibition does not lie under the facts of this case. He argues that even if Judge Peeler had “debatable jurisdiction” over the proceeding involving his application for relief from his federal firearms disability, jurisdiction was not patently and unambiguously lacking. He also argues that the trial court‘s grant of his application was proper. And Ewing contends that even if that ruling was incorrect, Judge Peeler erred only in the exercise of his jurisdiction—an error for which a writ of prohibition will not issue.
{¶ 25} To be entitled to a writ of prohibition, Suwalski must establish that (1) Judge Peeler is about to or has exercised judicial power, (2) his exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Shumaker v. Nichols, 137 Ohio St.3d 391, 2013-Ohio-4732, 999 N.E.2d 630, ¶ 9. Suwalski need not satisfy the third requirement if Judge Peeler “patently and unambiguously” lacked jurisdiction. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15.
1. Judge Peeler‘s Exercise of Judicial Power in Granting Ewing‘s Application Was Unauthorized by Law
{¶ 26} There is no question that Judge Peeler exercised judicial power in considering Ewing‘s application and granting him relief under
{¶ 27} Ewing is subject to a firearms disability under
{¶ 28} Ewing‘s interpretation of
{¶ 29} Ewing is thus ineligible to have any firearms rights restored as a matter of Ohio law. In order for an Ohio court to grant relief from a firearms disability, the applicant must not be “otherwise prohibited by law from acquiring, having, or using firearms.”
{¶ 30} In arguing that Judge Peeler had the statutory authority to relieve him of his federal firearms disability, Ewing asserts that this court must give weight to an uncodified section of 2011 H.B. No. 54, which amended
It is the intent of the General Assembly in amending section 2923.14 of the Revised Code to apply the amendments to that section retroactively to any restoration of rights granted previously to any applicant under section 2923.14 of the Revised Code or under any previous version of that section. The General Assembly is explicitly making this amendment to clarify that relief from a weapons disability granted under section 2923.14 of the Revised Code restores a person‘s civil firearm rights to such an extent that the uniform federal ban on possessing any firearms at all, 18 U.S.C. 922(g)(1), does not apply to that person, in correlation with the
U.S. Supreme Court‘s interpretation of 18 U.S.C. 921(a)(20) in Caron[, 524 U.S. 308, 118 S.Ct. 2007, 141 L.Ed.2d 303].
(Emphasis and brackets added.) 2011 H.B. No. 54, Section 3.
{¶ 31} Ewing overstates the reach of Section 3. That provision expressly refers to a court‘s authority to relieve a person of a disability that was imposed under
{¶ 32} We hold that Judge Peeler‘s grant of Ewing‘s application to remove his federal firearms disability was not authorized by law.
2. No Adequate Remedy Exists in the Ordinary Course of the Law
{¶ 33} The final requirement for a writ of prohibition is whether denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of the law, Shumaker, 137 Ohio St.3d 391, 2013-Ohio-4732, 999 N.E.2d 630, at ¶ 9, or if that element is not satisfied, whether Judge Peeler “patently and unambiguously” lacked subject-matter jurisdiction. Sapp, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, at ¶ 15. Although Judge Peeler erred in granting relief to Ewing, we hold that he did not lack subject-matter jurisdiction over Ewing‘s application.
{¶ 34}
{¶ 35} Nonetheless, we hold that denying the writ in this case would result in injury to Suwalski for which no other adequate remedy exists in the ordinary course of the law. Judge Peeler‘s order grants Ewing relief from his firearms disability—relief to which he is not entitled as a matter of law. And absent an extraordinary writ, Suwalski would be without a forum in which or a method to challenge the erroneous order and assert her rights under Marsy‘s Law.
{¶ 36} The availability of an appeal typically constitutes an adequate remedy. See State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 245, 248, 594 N.E.2d 616 (1992). But an appeal was not available to Suwalski. She was not a party to the application proceeding in the common
{¶ 37} Additionally, unlike the circumstances involved in State ex rel. Thomas v. McGinty, 164 Ohio St.3d 167, 2020-Ohio-5452, 172 N.E.3d 824, ¶ 38-49 (lead opinion), in which the lead opinion determined that assault victims who had invoked Marsy‘s Law had an adequate remedy in the ordinary course of the law to challenge the trial court‘s discovery order in the underlying case, Suwalski was not the subject of a discovery order that required some action or acquiescence on her part. Judge Peeler‘s order is also unlike a discovery order in general, which is an exercise of a court‘s broad discretion for which a writ of prohibition generally will not issue to correct even an abuse of that discretion. See State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 11. The error here is not that Judge Peeler abused his discretion in applying
{¶ 38} This case presents the type of extraordinary circumstances in which there is no clear path in the ordinary course of the law by which Suwalski may seek redress. Marsy‘s Law gives Suwalski the ability to assert her rights in the trial court and to petition the court of appeals if relief is denied.
III. Conclusion
{¶ 39} For the reasons set forth above, we affirm the judgment of the court of appeals insofar as it granted a writ of prohibition invalidating Judge Peeler‘s grant of Ewing‘s application for relief from his federal firearms disability.
Judgment affirmed.
DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by FISCHER and DEWINE, JJ.
KENNEDY, J., dissenting.
{¶ 40}
{¶ 41} Relying on Marsy‘s Law, appellee, Jamie Suwalski, filed a complaint for a writ of prohibition in the Twelfth District Court of Appeals against Warren County Court of Common Pleas Judge Robert W. Peeler, asserting that he violated her rights under Marsy‘s Law when he purported to relieve her ex-husband, appellant, Roy Ewing, of a federal firearms disability. The court of appeals granted the writ. 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24-25. However, based on the plain language of the enumerated rights established in Marsy‘s Law, the rights that Suwalski has asserted are not implicated in the underlying relief-from-disability matter. Suwalski has not claimed to have been treated without fairness and respect for her safety in the matter, and Ewing is no longer an accused person. Because she asserts no other grounds establishing a right to the relief that she seeks in prohibition, I would reverse the judgment of the Twelfth District and dismiss the action. Because the majority does not, I dissent.
Facts and Procedural History
{¶ 42} In April 2017, Ewing was convicted of a misdemeanor count of domestic violence. Suwalski was the victim of the offense. Because of that conviction, it is a federal crime for Ewing to possess a firearm or ammunition. See
{¶ 43} Ewing sought relief under
Law and Analysis
Constitutional Construction
{¶ 44} “The purpose of our written Constitution is to define and limit the powers of government and secure the rights of the people. It controls as written unless changed by the people themselves through the amendment procedures established by
{¶ 45} In discerning the meaning of a constitutional provision, we give undefined words in the provision their usual, normal, or customary meaning. Toledo City School Dist. Bd. of Edn. v. State Bd. of Edn., 146 Ohio St.3d 356, 2016-Ohio-2806, 56 N.E.3d 950, ¶ 16. “[W]e may go beyond the text to consider other sources of meaning, such as the purpose of an amendment, the history of its adoption, or its attending circumstances, only ‘when the language being construed is “obscure or of doubtful meaning.” ’ ” Cleveland at ¶ 17, quoting State ex rel. Wallace v. Celina, 29 Ohio St.2d 109, 112, 279 N.E.2d 866 (1972), quoting Cleveland v. Bd. of Tax Appeals, 153 Ohio St. 97, 103, 91 N.E.2d 480 (1950).
{¶ 46} The people of Ohio adopted Marsy‘s Law “[t]o secure for victims justice and due process throughout the criminal and juvenile justice systems.”
{¶ 47}
The victim, the attorney for the government upon request of the victim, or the victim‘s other lawful representative, in any proceeding involving the criminal offense or delinquent act against the victim or in which the victim‘s rights are implicated, may assert the rights enumerated in this section and any other right afforded to the victim by law. If the relief sought is denied, the victim or the victim‘s lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition.
Lastly,
{¶ 48} Suwalski maintains that ”
{¶ 49} Suwalski maintains that Marsy‘s Law grants victims of crime “constitutional rights to safety and protection.” However, that is not what Marsy‘s Law says. Marsy‘s Law grants crime victims the right “to be treated with fairness and respect for the victim‘s safety, dignity and privacy,”
{¶ 50} A person becomes the accused when the prosecution of the person commences by indictment, complaint, or arrest. See Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). And a person ceases to be “the accused” once he or she is convicted. Joseph v. State, 236 Ind. 529, 538, 141 N.E.2d 109 (1957); Steele v. State, 52 Del. 5, 9, 151 A.2d 127 (1959); see also Burnett v. State, 514 S.W.2d 939, 941 (Tex.Crim.App.1974) (“a person remains accused until his conviction becomes final“). Ewing was convicted of the misdemeanor-domestic-violence offense against Suwalski, but he is not currently accused of any crime against Suwalski. Therefore, he is not “the accused” for purposes of Marsy‘s Law.
{¶ 51} We have also recognized that a person “has standing in a prohibition case if it ‘is either a party to the proceeding sought to be prohibited * * * or demonstrates an injury in fact to a legally protected interest.’ ” (Ellipses added in Chesapeake Exploration, L.L.C.) Chesapeake Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204, 2013-Ohio-224, 985 N.E.2d 480, ¶ 7, fn. 1, quoting State ex rel. Matasy v. Morley, 25 Ohio St.3d 22, 23, 494 N.E.2d 1146 (1986). But Suwalski was not a party to Ewing‘s relief-from-disability proceedings before Judge Peeler, and in this court, she has not pointed to any specific facts showing that she has suffered any injury based on the order. As the majority explains, although Judge Peeler had subject-matter jurisdiction over Ewing‘s application, he lacked the authority to remove Ewing‘s federal firearms disability. Consequently, Suwalski has not been injured by the order purporting to restore Ewing‘s rights to keep and bear arms. A writ of prohibition, then, is of no benefit to her. See State ex rel. Thomas v. Nestor, 164 Ohio St.3d 144, 2021-Ohio-672, 172 N.E.3d 136, ¶ 9 (“a court need not grant extraordinary relief in mandamus when the relator would receive no benefit from such an order“).
{¶ 52} Lastly, even if Suwalski had standing to commence the prohibition action at issue, she would not be entitled to the writ. This court has indicated that intervention into a pending action may provide an adequate remedy in the course of the law. See State ex rel. Schroeder v. Cleveland, 150 Ohio St.3d 135, 2016-Ohio-8105, 80 N.E.3d 417, ¶ 18. The denial of a motion to intervene itself may be a final, appealable order. Southside Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209, 2007-Ohio-6665, 878 N.E.2d 1048, ¶ 6. And if Suwalski had been allowed to intervene in the relief-from-disability proceedings, she would have had the right to appeal the approval of Ewing‘s application, affording her an adequate remedy in the ordinary course of the law that precludes extraordinary relief in prohibition.
{¶ 53} For these reasons, I would reverse the judgment of the court of appeals and dismiss Suwalski‘s prohibition action. The majority does not, so I dissent.
FISCHER and DEWINE, JJ., concur in the foregoing opinion.
Ohio Crime Victim Justice Center and Elizabeth A. Well; and Ohio Domestic Violence Network and Micaela Deming, for appellee.
Christopher Pagan, for appellant.
Benesch, Friedlander, Coplan & Aronoff, L.L.P., Gregory J. Phillips, Addisah Sherwood, and James J. Walsh Jr.; and Pillsbury Winthrop Shaw Pittman, L.L.P., Bruce A. Ericson, Julia E. Judish, Jeetander T. Dulani, Charrise L. Alexander, Alton L. Hare, and Katherine T. Danial, urging affirmance for amici curiae Domestic Violence Legal Empowerment and Appeals Project, Aequitas, The Legal Aid Society of Cleveland, Advocates for Basic Legal Equality, Inc., and Legal Aid of Western Ohio, Inc.