Summary
In Lovinger, the pivotal issue was status, i.e., whether it was proper to appoint an acting judge to hear the case instead of a duly elected and qualified judge.
Summary of this case from Bobb v. MarchantOpinion
No. 82-1381
Decided July 13, 1983.
Prohibition — Mandamus — Disqualification of acting judge — Affidavit of prejudice filed pursuant to R.C. 2937.20 — Court of appeals improperly dismisses complaint, when.
APPEAL from the Court of Appeals for Cuyahoga County.
Relators-appellants, Frank U. Sowell and Linda J. Sowell, are the plaintiffs in an action pending in the Shaker Heights Municipal Court (the "Sowell case"). Defendants in that action include the city of Shaker Heights and one of its housing inspectors. These defendants were represented by the city's law director, who, at the time the action was commenced, was Paul R. Donaldson. Subsequently, Donaldson was elected judge of the Shaker Heights Municipal Court and currently holds that office.
On February 23, 1982, appellants' attorney filed an affidavit of prejudice against Judge Donaldson, seeking to disqualify him from hearing the matter by reason of his former position as counsel for the city. Judge Donaldson voluntarily disqualified himself by the following order: "By reason of the connection of the Judge of this Court with this litigation prior to Jan. 1, 1982, Acting Judge Daniel Lovinger is hereby appointed to hear this case."
Appellants then filed the first of two actions in mandamus and prohibition in the Court of Appeals for Cuyahoga County. They requested the issuance of a writ to compel the Clerk of the Shaker Heights Municipal Court to forward the affidavit of prejudice to the administrative judge of the court of common pleas for determination pursuant to R.C. 2937.20, and to prohibit Judge Donaldson and Acting Judge Lovinger from proceeding in the Sowell case.
R.C. 2937.20 provides in part:
"When a magistrate or a judge of a court inferior to the court of common pleas is interested in a cause pending before him, or is related to or has a bias or prejudice either for or against a party to such cause or to his counsel, or is otherwise disqualified to sit in such cause, on the filing of an affidavit of such party or his counsel, setting forth the fact of such interest, relationship, bias, prejudice, or disqualification, the clerk or deputy clerk of such court, * * * shall enter the filing of such affidavit on the docket in said cause, and, forthwith notify the presiding judge, or the chief justice of the court of common pleas, * * * who shall proceed without delay to examine into said affidavit, and if he finds from all the evidence that such interest, relationship, bias, prejudice, or disqualification exists, he shall designate another magistrate of the township or county, or another judge of said inferior court, or the court of common pleas to hear and determine said cause. * * *"
On March 10, 1982, the matter was submitted to Judge Leo M. Spellacy, administrative judge of the court of common pleas, and, accordingly, the action in the court of appeals was dismissed as being moot.
On March 12, 1982, Judge Spellacy issued an order assigning the Sowell case to be heard by Acting Judge Lovinger.
On June 23, 1982, appellants initiated this action in prohibition and mandamus against respondents-appellees, Acting Judge Lovinger and Judge Spellacy. The complaint alleged that the appointment of Lovinger as acting judge was unlawful. Appellants requested the issuance of a writ of prohibition to prevent Acting Judge Lovinger from proceeding in the Sowell case and a writ of mandamus to compel Judge Spellacy to appoint a duly elected and qualified judge.
The court of appeals granted appellees' motions to dismiss the complaint finding that appellee Lovinger had at least a colorable appointment as acting judge pursuant to R.C. 1901.10, and that any claimed defects in that appointment were reviewable upon appeal in the underlying action.
R.C. 1901.10 provides, in part:
"When a judge of a municipal court having only one judge is temporarily absent or incapacitated, the judge may appoint a substitute who has the qualifications required by section 1901.06 of the Revised Code * * *. Such appointee shall serve during the absence or incapacity of the incumbent, shall have the jurisdiction and powers conferred upon the judge of the municipal court, and shall be styled `acting judge.' * * *"
The cause is now before this court upon an appeal as of right.
Mr. Albert A. Pottinger, for appellants.
Messrs. Parks, Eisele, Bates Wilsman, Mr. James M. Wilsman and Mr. Edward M. Janis, for appellee Acting Judge Lovinger.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Patrick Carroll, for appellee Judge Spellacy.
The sole issue raised by this appeal is whether appellants have an adequate remedy at law by way of appeal and are thus precluded from seeking relief by way of mandamus and prohibition. See State, ex rel. St. Sava, v. Riley (1973), 36 Ohio St.2d 171, 173-174 [65 O.O.2d 395]; State, ex rel. Woodbury, v. Spitler (1973), 34 Ohio St.2d 134, 137 [63 O.O.2d 229], certiorari denied (1974), 415 U.S. 913 [69 O.O.2d 42].
Appellants' complaint challenges appellee Lovinger's right to hold the office of acting judge. In State v. Staten (1971), 25 Ohio St.2d 107, 110 [54 O.O.2d 235], vacated on other grounds (1972), 408 U.S. 938, this court refused to consider, on appeal, appellant's argument that one of the members of a three-judge panel was ineligible to hold office, stating: "The right of a de facto officer to hold office may not be questioned in a collateral proceeding to which he is not a party. Stiess v. State (1921), 103 Ohio St. 33, [41-42] * * *."
Accordingly, the issue raised in appellants' complaint would not be reviewable upon an appeal from an adverse judgment rendered in the underlying action.
Moreover, we find that the allegations of the complaint, if proven, would present a claim that appellee Lovinger is "without jurisdiction whatsoever to act, [and in such a case,] 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 usurpation of jurisdiction by the inferior court." State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St.2d 326, 329 [59 O.O.2d 387]. See, also, State, ex rel. Rockwell Internatl., v. Ford (1980), 61 Ohio St.2d 234, 235 [15 O.O.3d 250].
Accordingly, we reverse the judgment of the court of appeals dismissing appellants' complaint and remand the cause to that court for further proceedings.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.