Lead Opinion
{¶ 3} Mr. McCloud was indicted in July 2005 for multiple offenses, including aggravated murder with a death specification. His case is unrelated to Mr. Rivera's case, except that they both face the death penalty. In July 2007, Mr. McCloud moved to join Mr. Rivera's motion challenging the death penalty. The trial court denied the motion to join Mr. Rivera's motion, but considered the motion as one requesting the same relief Mr. Rivera sought. The court ordered that both defendants would participate in hearings and appointed one of Mr. Rivera's attorneys to also represent Mr. McCloud.
{¶ 4} As relevant to this appeal, the two cases proceeded together, with Mr. Rivera's case and counsel taking the lead. For clarity of discussion, this Court will refer to Mr. Rivera singularly, although the analysis applies to both cases.
{¶ 5} The trial court held multiple hearings on the motion, and the parties briefed the issue extensively. In June 2008, the trial court held that, to the extent Section
{¶ 6} In July 2008, after the appeals were filed, the trial court entered another order to clarify that the June order will only apply if the defendants are convicted and the death sentence imposed. The July order has no effect on this Court's analysis because it simply restates explicitly what the June order concluded less clearly. Because the July order makes no substantive changes to the June order on appeal, this decision only refers to the June order.
{¶ 7} The State moved for leave to appeal the trial court's order, and the defendants cross-appealed. This Court granted the State's motion, subject to further review by the panel assigned to the case. Mr. Rivera argued in his brief that this Court should not have granted the State's motion for leave to appeal because the trial court's order is not a final appealable order. At oral argument, Mr. Rivera's counsel repeated this argument and added that the defendants' cross-appeals relied upon the validity of the State's appeal. In other words, he agreed that if this Court dismisses the State's appeal as taken from a non-final order, the cross-appeals should also be dismissed.
{¶ 9} Under Section
{¶ 10} By statute, the State may appeal specific orders. Section
{¶ 11} Section
{¶ 13} A court cannot enter a declaratory judgment in a criminal case because the indictment invokes the trial court's jurisdiction over a criminal matter, not to issue a declaratory judgment. Not surprisingly, the parties have not cited any case that has considered whether a trial court, sitting in a criminal case, could grant a declaratory judgment. The closest decisions have held that a "declaratory judgment action is simply not part of the criminal appellate process." Moore v. Mason, 8th Dist. No. 84821,
{¶ 14} Attempting to apply declaratory judgment procedure in this case demonstrates the problem with this argument. Three years after he was indicted, Mr. Rivera filed a pleading captioned "Motion to declare the death penalty unconstitutional due to lethal injection constitutes cruel and unusual punishment." (Docket number 207). While the caption used the word "declare," the body of the motion asked the trial court to dismiss the part of the indictment that elevated the potential penalty from life in prison to death. The motion did not cite either the declaratory judgment statute or the Ohio Rules of Criminal Procedure as authority for the trial court to act. Over the following months, pleadings and orders were filed that referred to Defendant's motion to declare the death penalty unconstitutional. But neither a party nor the trial court can create a declaratory judgment simply by assigning that title to a motion.
{¶ 15} Notwithstanding the name Mr. Rivera assigned to his motion, the relief he requested was not a declaration that the death penalty is unconstitutional. Instead, he sought an order that dismissed the death penalty specifications from the indictment because, he argued, Ohio's lethal injection protocol was unconstitutional. The Ohio Rules of Criminal Procedure provide a procedure to settle controversies between the parties, and the large number of motions Mr. Rivera filed demonstrated that he was well acquainted with those rules. Rule 12(C) of the Ohio Rules of Criminal Procedure authorizes a party to "raise by motion any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue." This is precisely what Mr. Rivera did. The trial court's ruling on the motion could not convert Mr. Rivera's common pretrial motion into a declaratory judgment. Mr. Rivera made this point clear in a Reply Memoranda he filed in July 2007, in which he argued:
"Mr. Rivera does not ask this Court for a declaration that Ohio's current method of carrying out executions is cruel and unusual punishment in violation of the
Eighth andFourteenth Amendments to the United States Constitution and of Article 9, Section I of the Ohio Constitution and that, therefore, any death *7 sentence he might receive cannot be carried out under the current protocol. That is essentially the position of Richard Cooey and the other death row inmates who are part of the lethal injection litigation in federal court, but it is not his. Rather, he asks this Court to remove death as a sentencing option in this case because the only current method of executing prisoners in Ohio is by a punishment which is unconstitutional and, therefore, imposing a death sentence would [be] imposing the infliction of a cruel and unusual punishment."
(docket number 239) (footnote omitted). The memorandum continues by noting that there are a number of other pretrial motions defendants in capital cases routinely file in an effort to remove the death penalty as a possible sentence (for example, arguing that the death penalty violates international law). If this Court accepted the State's argument — that the trial court's order in this case was a declaratory judgment — the same analysis would apply to every pretrial decision on one of these routine motions challenging the death penalty. Each of these orders would constitute a declaratory judgment because the order would declare the rights of the parties regarding the death penalty. The State certainly could not intend that result by its argument. And the trial court's ruling on each of these motions would not be a declaratory judgment.
{¶ 16} In addition, a declaratory judgment may be filed only to decide "an actual controversy, the resolution of which will confer certain rights or status upon the litigants." Mid-American Fire and Cas. Co. v.Heasley,
{¶ 17} At the time the trial court made its decision, there was no actual controversy. The June 2008 order was drafted so that it applied only "if defendants herein are convicted and sentenced to death by lethal injection. . . ." Mr. Rivera has yet to be tried. At the time of the order, there existed only the possibility that he would be tried, found guilty of aggravated murder *8 and the death specification, receive a recommendation of death from the jury, and have the trial court enter a sentence of death. In the context of a declaratory judgment, there exists no present actual controversy, only a contingent future event. If this Court were to find that this action constitutes a declaratory judgment, it would be akin to allowing an insured to bring a declaratory judgment action against his automobile insurer seeking an order that the insurer would be liable for damages should the insured at some later date be involved in an automobile collision and found at fault. Again, this result is unreasonable.
{¶ 18} The trial court's order is not a declaratory judgment. Accordingly, the order is not a final, appealable order based on the State's declaratory judgment theory.
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
Section
{¶ 20} The first prong asks whether the proceeding is a provisional remedy. Section
{¶ 21} In In re A.J.S.,
{¶ 22} The trial court's proceeding in this case is not of the same character as other hearings determined to be ancillary and, therefore, provisional remedies. Here the trial court created a proceeding when none was authorized by law. The bindover hearing reviewed inA.J.S. arose from a statutory scheme as part of a comprehensive juvenile court process. A bindover hearing — like the appointment of a receiver or the forced medication of an incompetent criminal *10 defendant — allows the case to proceed in an orderly manner. The trial court's hearing on the constitutionality of Ohio's death penalty had no effect on whether or how the underlying case would continue, except that it interrupted the orderly administration of justice. Upon review of the trial court's decision, and the extensive record created to allow the trial court to enter its judgment, this Court must conclude that the trial court's proceeding was not ancillary to the underlying criminal case. Accordingly, there exists no provisional remedy in this case.
{¶ 23} If there is no provisional remedy, this Court need not review the second and third prongs of the test, both of which require the existence of a provisional remedy for further analysis. Sinnott v.Aqua-Chem Inc.,
{¶ 25} Section
{¶ 26} A criminal case is not a special proceeding. "Any ordinary proceeding in a court of justice, by which a party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, involving the process and pleadings, and ending in a judgment is an action. Criminal actions existed at common law and were not established by special legislation."State v. Myers,
{¶ 27} "Turning to R.C.
{¶ 28} In its Statement of Jurisdiction, the State focused more narrowly on Section
{¶ 29} There is no "action" for a quick and painless death. Section
does not provide for a remedy to be sought through "an original application to a court for a judgment or an order" (Ely,
, 56 Ohio St. at 407), it does not authorize "a special application to a court to enforce" a right (Schuster, 47 N.E. at 538, 84 Minn. at 407), and it does not provide for what is "essentially an independent judicial inquiry" (Wyckoff, 87 N.W. at 1015, 166 Ohio St. at 358, 2 O.O.2d at 260). 142 N.E.2d at 664
Stevens v. Ackman,
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the *13 period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to appellants.
Concurrence Opinion
{¶ 31} I concur with the conclusion that the order appealed is not a final, appealable order. I write separately to address the conduct of the trial court judge in his handling of this case.
{¶ 32} The version of Canon One of the Ohio Code of Judicial Conduct in effect at the time of these proceedings provided:
"An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and personally shall observe those standards so that the integrity and independence of the judiciary will be preserved."
In my opinion, Judge Burge failed to meet these standards during this case. My review of the record leads me to question whether he personally observed the high standards of conduct necessary to preserve the integrity and independence of the judiciary.
{¶ 33} Three specific instances highlight my concerns. First, Judge Burge acted as Defendant Rivera's interpreter during the crucial hearing that set the lethal injection challenge in motion. The procedures for the use of interpreters were clear at the time of the hearing. But Judge Burge did not wait for an interpreter to appear so that Defendant could understand the proceedings. Instead, he forged ahead, occasionally stopping to fill-in the defendant on what *14 was going on. Whether the translation was accurate or not is not the issue. Judge Burge's conduct relegated the defendant to the role of a non-participant. His decision to hold the hearing without an interpreter is even more appalling in light of the fact that Judge Burge, prior to taking the bench, had served as an interpreter for Defendant in an earlier criminal hearing. Judge Burge had to have known that Defendant required an interpreter and, rather than hearing this matter without one, he should have continued it so that Defendant could actively participate in his case independently from the judiciary.
{¶ 34} Second, Judge Burge appeared to be personally vested in the matter before him. Defendant Rivera moved to dismiss the death penalty specification from the indictment. Rather than address this narrow issue, Judge Burge presided over a hearing to broadly consider whether the death penalty in Ohio is unconstitutional. This is not what Defendant wanted, as noted by the majority decision. But Judge Burge took control and lead the parties where he wanted to go.
{¶ 35} Third, Judge Burge allowed his personal feelings to interfere with the orderly administration of justice. In July 2007, Defendant McCloud moved to join Rivera's motion regarding the death penalty. The state responded to the motion and argued that the only thing the two cases shared in common was a capital specification. It then argued that allowing McCloud to participate "is inviting potential reversible error in future appellate litigation. This Court would then be responsible for purposely creating potential reversible error in a death penalty case effectively sandbagging any attempt by the State of Ohio to seek, impose, and carry out a death sentence on either defendant." (McCloud Docket No. 111). On July 26, 2007, Judge Burge denied Defendant McCloud's motion, as the State urged, but treated it as a request to receive whatever relief Defendant Rivera received. *15
{¶ 36} Later that day, after denying Defendant McCloud's motion, Judge Burge entered an order finding the prosecutor in direct contempt of court simply for the argument he made in the State's response. (McCloud Docket No. 113). While Judge Burge later modified the contempt order, it was only after the Sheriff served the summons and the State responded to the order. Judge Burge's failure to hold his emotions in check wasted more time and resources and created questions about the integrity and independence of the judiciary.
{¶ 37} Judges must maintain and enforce high standards of conduct to preserve the integrity of the judiciary. There are times it is not easy to do this. But we do these things not because they are easy, but because they are necessary. Our choices as judges have grave consequences for the parties before us, for the justice system, and for all people.
{¶ 38} But all is not lost. The record reflects that Defendant Rivera's case has been assigned to a new judge. When his case returns to the trial court, the judge now assigned can provide the parties with fair hearings, revisit those issues already decided where necessary, and hold himself and the parties to the high standard required to preserve the integrity of the judiciary. A fair and honorable judicial system benefits not only the parties who appear in court, but all citizens who must have confidence in the decisions reached by our nation's courts.
{¶ 39} This is an important time. I encourage all involved to reflect on how they handle themselves as these cases move forward through the system.
Dissenting Opinion
{¶ 40} I respectfully dissent from the majority's dismissal of this appeal. The trial court entered a declaratory judgment and this Court has jurisdiction to review it because it is a final appealable order. *16
{¶ 41} Rivera, and later McCloud, asked the trial court to declare the death penalty unconstitutional. That was the name assigned to the motion and the language used at hearings. In its order, the trial court declared that the death penalty, as administered, was unconstitutional. The order declared the rights and obligations of parties to the action. Although the majority concludes that the trial court could not enter a declaratory judgment in a criminal case, the trial court's order did precisely that.
{¶ 42} "A declaratory judgment action provides a means by which parties can eliminate uncertainty regarding their legal rights and obligations." Mid-American Fire and Cas. Co. v. Heasley,
{¶ 43} The majority concludes that a trial court cannot enter a declaratory judgment in a criminal case. I agree that a trial court cannot do so, but that merely constitutes error; it does not render the order non-final. The motion before the trial court was "an ill-disguised request for . . . a declaratory judgment," State ex rel. Leslie v. OhioHous. Fin. Agency,
{¶ 44} I would conclude that the order on appeal is a final appealable order. I would reverse the trial court's decision because the matter was not ripe for decision. See, e.g., Neville *17 v. Johnson,