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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

PROHIBITION (138)

Nature of the writ

Writ granted

Writ denied

Ohio Constitution, Article IV, Sections 2(B)((1)(d) and 3(B)(1)(d) grant original jurisdiction to the Supreme Court and the Court of Appeals. Lower courts do not have jurisdiction.

Nature of the writ

State, ex rel. La Boiteaux Co., v. Court (1980), 61 Ohio St. 2d 60, 61 -- "Three conditions must exist to support the issuance of a writ of prohibition: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power, (2) the exercise of such power must be clearly unauthorized by law, and (3) it must appear that the refusal of the writ would result in injury for which there is no adequate remedy in the ordinary course of law." Also see State, ex rel. Northern Ohio Telephone Co., v. Winter (1970), 23 Ohio St. 2d 6, 8.

State, ex rel. Niederlehner, v. Mack (1932), 125 Ohio St. 559, 564-565 -- Prohibition does not attempt to direct definite or specific action by a court. It is a supervisory writ to keep the court within the limits of its jurisdiction.

State ex rel. Rogers v. McGee Brown (1997), 80 Ohio St. 3d 408 -- When the petition claims that a judge patently and unambiguously lacks jurisdiction, a prohibition action is not rendered moot by journalization of an entry disposing of the matter the court is said not to have jurisdiction over. Trial court heard a further motion in a divorce case on appeal. Remanded to determine whether petitioner had an adequate remedy at law.

State, ex rel. Williams, v. Brown (1977), 52 Ohio St. 2d 13 - (1) At page 15: "Mandamus and prohibition are extraordinary remedies, to be issued with great caution and discretion and only when the way is clear." (2) At page 16 -- When a public official is vested with both ministerial and quasi-judicial authority, prohibition only reaches exercise of the latter.

State, ex rel. Hughes, v. Brown (1972), 31 Ohio St. 2d 41, 43 -- "The purpose of an alternative writ of prohibition, as issued herein, is to preserve the existing status of a proceeding, to command the person against whom it is issued to show cause to the court why a permanent writ of prohibition should not be ordered, and, in effect, to shorten a respondent's answer date."

State ex rel Russell v. Shaker Heights Municipal Court (1993), 87 Ohio App. 3d 511 -- Pro se filing seeking writ of prohibition in Common Pleas Court, which did not have jurisdiction, was frivolous conduct warranting award of attorney fees.

State, ex rel. Adamo, v. Gusweiler (1972), 30 Ohio St. 2d 326, 329 -- "If an inferior court is without jurisdiction whatsoever to act, the availability or adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction by a superior court to prevent the usurpation of jurisdiction by the inferior court."

State, ex rel. the Mansfield Telephone Co., v. Mayer (1966), 5 Ohio St. 2d 222 -- A court of general jurisdiction has the authority to initially determine its own jurisdiction. Prohibition does not lie to prevent an anticipated erroneous determination. Also see State, ex rel. B.F. Goodrich, v. Griffin (1970), 59 Ohio St. 2d 59 permitting discover to proceed to assist judge in determining whether he has jurisdiction.

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Writ granted

State ex rel. Toledo Blade v. Henry County Court of Common Pleas, 125 Ohio St. 3d 149, 2010-Ohio-1533 – In a small county with a limited number of prospective jurors both the prosecution and defense supported a gag order on news coverage of the first defendant’s trial until a jury had been selected for the codefendant. Later learning of the order, the Toledo Blade initiated a prohibition action in the Supreme Court and prevailed. ¶19: Prohibition is the appropriate remedy in these circumstances. ¶37: A defendant’s Sixth Amendment right to a fair trial is no more important than the media’s First Amendment rights. Opinion does not preclude gag orders in such circumstances but faults the issuing judge for not having conduced a hearing generating evidence in support of the order.

State ex rel Cordray v. Rawlins, 123 Ohio St. 3d 229, 2009-Ohio-4986 – The Attorney General has standing to bring a prohibition action compelling a common pleas court judge to vacate entries granting relief to a defendant on a motion for relief from judgment pursuant to Civil Rule 60(B). Trial court refused to instruct on voluntary and involuntary manslaughter. Court of Appeals affirmed. But without opposition from the county prosecutor the trial court subsequently granted 60(B) relief on the same claim, entered conviction on voluntary manslaughter, imposed a ten year sentence, and ordered release from prison. Writ granted. Law of the case doctrine applies. A trial court may not take action affecting the decision of a reviewing court.

State ex rel. Buck v. Maloney, 102 Ohio St. 3d 250 -- Probate judge barred two attorneys from practice in his court. The Court of Appeals dismissed their prohibition complaint for failing to state a cause of action. Reversed. Only the Supreme Court has authority to control practice before the courts of this state. The superintendence rules did not delegate the authority to suspend attorneys in these circumstances. Instead of remanding, the court exercises its plenary authority to grant the writ.

State ex rel. Gains v. Maloney, 102 Ohio St. 254, 2004-Ohio-2658 -- Disbarred attorney named the judge who sentenced him as respondent in a habeas action. The judge did not want to be represented by the county prosecutor who had represented the county commissioners in budget dispute litigation, so he appointed counsel to represent him in the habeas. Prosecutor brought an action in prohibition and prevailed. Appointment of outside counsel was not within the judge's inherent authority. This required application to the court by the prosecutor and county commissioners.

State ex rel. Kline v. Carroll, 96 Ohio St. 3d 404, 2002-Ohio-4849 -- Common Pleas judge improperly transferred case from one municipal court in the county to another upon the voluntary recusal of the assigned trial judge. Writ of prohibition granted even though counsel for petitioner sought the remedy provided. Also see Parma v. Kline, Cuyahoga App. Nos. 83287, 83427, 2004-Ohio-6091.

State ex rel. Flint v. Dinkelacker, 156 Ohio App. 3d 595, 2004-Ohio-1695 -- An indictment cannot be conditionally dismissed. Plea agreement in 1999 substituted Hustler News and Gifts for the defendant named in the indictment. The company pleaded guilty and remaining charges against individuals were dismissed. In-court agreement that the prosecution could be revived if there were future sales of obscene materials was unenforceable. Writ of prohibition granted. Scheduling a hearing on the state's motion to reinstate constituted exercise of judicial power. While a court may ordinarily determine its own jurisdiction, prohibition lies "where an inferior court patently and unambiguously lacks jurisdiction over the cause."

State, ex rel. Chillicothe Gazette, Inc., v. Court (1982), 2 Ohio St. 3d 24 -- Prohibition lies to attack an unwarranted gag order. Also see State, ex rel Dispatch Printing Co., v. Golden (1982), 2 Ohio App. 3d 370.

State, ex rel. Dayton Newspapers, Inc., v. Phillips (1976), 46 Ohio St. 2d 457 -- Paragraphs one and two of the syllabus: "(1) A writ of prohibition provides an appropriate remedy to prevent the enforcement by a trial court of an order improperly excluding the public and members of the press from pretrial hearings on a motion to suppress evidence. (2) A newspaper has standing to seek a writ of prohibition to prevent a trial court from enforcing an order improperly excluding the public and reporters from pretrial hearings on a motion to suppress evidence." Also see In re T.R. (1990), 53 Ohio St. 3d 6.

State ex rel. Stern v. Mascio (1996), 75 Ohio St. 3d 422 -- Writ of prohibition granted to prevent judge from conducting a hearing on an affirmative defense asserted in conjunction with a no contest plea. At p. 424: "Although the trial court retains discretion to consider a defendant's contention that the admitted facts do not constitute the charged offense, the defendant who pleads no contest waives the right to present additional affirmative factual allegations to prove that he is not guilty of the charged offense."

State ex rel. Koren v. Grogan (1994), 68 Ohio St. 3d 590 -- Defendant and the driver of another car involved in an accident were both charged with aggravated vehicular homicide. The defendant was granted immunity to testify against the other driver. Writ of prohibition properly issued to bar prosecution for OMVI in another court. Though appeal might have furnished a remedy had the trial court determined its jurisdiction, "a writ of prohibition will issue where there is a patent and unambiguous restriction on the jurisdiction of the court which clearly places the dispute outside the court's jurisdiction."

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Writ denied

State ex rel. Mason v. Burnside, 117 Ohio St. 3d 1, 2007-Ohio-6754 – Prosecutor sought a writ of prohibition after judge ordered police reports and witness statements turned over to the defense in a capital case. Same materials had already been provide the defense expert, but were beyond the scope of Crim.R. 16 discovery. Writ denied. Prosecutor had two adequate remedies at law: (1) leave to appeal pursuant to R.C. 2945.67, (2) appeal in the event there is a contempt finding for noncompliance.

State ex rel. Douglas v. Burlew, 106 Ohio St. 3d 180, 2005-Ohio-4382 -- After the state prevailed on a motion to suppress, the defendant pleaded guilty to one count of OMVI and the other was dropped. When the court of appeals reversed, the defendant contended the dropped count could not be revived and sought a writ of prohibition. Writ was properly denied. Following reversal the trial court must proceed from the point at which the error occurred. Here the erroneous ruling preceded dismissal. The court did not patently and unambiguously lack jurisdiction to set aside the dismissal. Appeal is the remedy if revival was in fact erroneous.

State ex rel Kister-Welty v. Hague, 160 Ohio App. 3d 486, 2005-Ohio-1788 -- Judge disqualified an attorney from representing the mother in custody proceedings because that attorney had previously represented the child. (1) Prohibition does no lie as the judge acted within the scope of his jurisdiction. (2) Prohibition does not lie as the mother had an adequate remedy at law in the form of an immediate appeal from the disqualification order.

State ex rel. Wright v. Ohio Bureau of Motor Vehicles (1999), 87 Ohio St. 3d 184 -- Prohibition does not lie to challenge Registrar's suspension of license and registration privileges as the statutory scheme does not establish an exercise of judicial or quasi judicial-power.

State ex rel. Keenan v. Calabrese (1994), 69 Ohio St. 3d 176 -- The trial court granted the prosecution's motion to disqualify retained counsel of choice based upon a claimed conflict of interest. Held that this ruling was not a final appealable order. Nor would a writ of prohibition or mandamus issue, as an appeal after trial would furnish an adequate remedy at law. Also see State v. Keenan (1998), 81 Ohio St. 3d 133, 136-137 upholding disqualification.

State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St. 3d 70, -- Action to have Sam Sheppard declared innocent may or may not have been barred by statute of limitations concerning wrongful imprisonment actions. But since the expiration of a statute of limitations is not a jurisdictional defect, the remedy is appeal following final judgment, not a prohibition action.

State, ex rel Brady, v. Howell (1977), 49 Ohio St. 2d 195 -- Prohibition does not lie to block Mayor's transfer of prosecution from Mayor's Court to Municipal Court after defendant's entry of a not guilty plea. Compare Whitehall v. Wolfe (1986), 27 Ohio App. 3d 357.

State, ex rel. Parker, v. Court of Common Pleas of Cuyahoga County (1980), 61 Ohio St. 2d 351 -- Appeal and not prohibition is remedy for county prosecutor's failure to honor city prosecutor's promise not to prosecute if defendant passed polygraph. Prohibition does not lie against a prosecutor as he does not exercise judicial or quasi judicial power. Also see State, ex rel. Gray, v. Leis (1980), 62 Ohio St. 2d 102.

State, ex rel. Adler, v. Court (1980), 61 Ohio St. 2d 1 -- Notwithstanding discussions between the "police prosecutor" and defendant concerning dismissal for release, upon indictment the Common Pleas Court has jurisdiction and prohibition will not lie. Appeal is the remedy. Also see State, ex rel. Wall, v. Grossman (1989), 61 Ohio St. 2d 4.

State, ex rel. Bell, v. Blair (1975), 43 Ohio St. 2d 95 -- Prohibition does not lie to prevent court from proceeding to trial after overruling motion for discharge on speedy trial grounds.

State, ex rel. Corrigan, v. Griffin (1984), 14 Ohio St. 3d 26 -- Prosecutor may not use a prohibition action to obtain relief from trial judge's order enforcing discovery. Appeal pursuant to R.C. 2945.67 provides an adequate remedy at law. Also see State, ex rel. Lighttiser, v. Spahr (1985), 18 Ohio St. 3d 234.

State, ex rel Kynard, v. Court of Common Pleas of Lucas County (1980), 62 Ohio St. 2d 308 -- Prohibition does not lie to prevent court from proceeding to trial on indictment returned in allegedly irregular grand jury proceedings.

State, ex rel. Shoop, v. Mitrovich (1983), 4 Ohio St. 3d 220 -- Syllabus: "The Court of Common Pleas has jurisdiction to supervise aspects of the grand jury as enumerated in R.C. 2939.01, et. seq. and Crim. R. 6, and prohibition does not lie to control the court's discretion in the exercise of these powers."

DuBose v. Court (1980), 64 Ohio St. 2d 169 -- Appeal and not prohibition is the remedy when the state seeks to prosecute a juvenile in adult court on a charge he has already been found delinquent of in juvenile court.

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