The opinion
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The State ex rel. Johnson, Sheriff, Appellant, v. Talikka,
Special Pros. Atty., Appellee.
[Cite as State ex rel. Johnson v. Talikka (1994),
Ohio St.3d .]
Quo warranto -- Complaint challenges appointment of special
prosecutor -- Denial of writ by appellate court upheld, when.
(No. 94-1021 -- Submitted November 1, 1994 -- Decided
December 7, 1994.)
Appeal from the Court of Appeals for Ashtabula County, No.
93-A-1816.
On or about July 8, 1993, Gregory J. Brown, the Ashtabula
County Prosecuting Attorney, received an anonymous letter
signed "Concerned Taxpayers'" informing him of an alleged
incident occurring on July 7, 1993. The letter indicated that
on that date, the county jail cook and three inmates had
prepared food for a private golf outing held by
relator-appellant, Ashtabula County Sheriff William R. Johnson,
when the cook was being paid by the county to prepare food for
county jail inmates. The letter further alleged that the
inmates transported the beer for the outing and stacked it in
the county jail's cooler.
On July 30, 1993, Brown filed an application with the
Ashtabula County Court of Common Pleas to appoint
respondent-appellee, Leo J. Talikka, special prosecutor, "due
to the fact that an investigation is necessary to ascertain the
truth of allegations concerning improper conduct within the
Ashtabula County Sheriff's Department." The application
further stated that the "close relationship the Prosecution
office must maintain with the Sheriff's Department in handling
continuing criminal investigations makes it necessary and wise
to select an independent prosecutor to review these matters
before [a] Grand Jury." On the same date, the common pleas
court granted Brown's application and appointed Talikka
"Special Counsel to Convene Grand Jury and address those
matters to conclusion." The county commissioners did not
participate in Brown's application to appoint Talikka as
special prosecutor, and the common pleas court held no hearings
on Brown's application.
On August 4, 1993, the grand jury returned an indictment
which charged Sheriff Johnson with three counts of dereliction
of duty in violation of R.C. 2921.44(C)(5), one count of
conveyance of intoxicating liquor onto the grounds of a
detention facility in violation of R.C. 2921.36(A)(3), and one
count of theft in office in violation of R.C. 2921.41(A)(1).
The indictment was signed by Talikka as "SPECIAL PROSECUTOR."
After being granted leave to institute a quo warranto
action by the Court of Appeals for Ashtabula County, Sheriff
Johnson filed a complaint in the court of appeals on December
2, 1993. Sheriff Johnson alleged that Talikka's appointment as
special prosecutor was illegal, and he requested a writ of quo
warranto removing Talikka from his position and pronouncing all
actions taken by him as special prosecutor to be void ab
initio. Talikka filed an answer denying that his appointment
as special prosecutor was illegal. The case was submitted to
the court of appeals upon stipulated facts and the briefs of
the parties. On April 4, 1994, the court of appeals denied the
writ.
The cause is now before this court upon an appeal as of
right.
Thomas L. Sartini, for appellant.
Talikka, Ischie, Talikka & Wilson and Leo J. Talikka,
Special Prosecutor, pro se.
Per Curiam. Sheriff Johnson asserts in his first
proposition of law that quo warranto is the only remedy
available in law or equity to challenge the appointment of
either a special prosecutor or an assistant prosecutor. The
court of appeals denied quo warranto relief on the basis that
Sheriff Johnson "has a remedy at law by way of a motion to
dismiss, which if overruled by the trial court, may be appealed
at the conclusion of the proceedings against him."
Extraordinary writs like quo warranto provide extraordinary,
not alternative remedies, and they will not lie where there
exists an adequate remedy in the ordinary course of the law.
State ex rel. McArthur v. DeSouza (1992), 65 Ohio St.3d 25, 599
N.E.2d 268; State ex rel. Buian v. Kadlec (1978), 53 Ohio St.2d
239, 7 O.O.3d 402, 373 N.E.2d 1260. An alternative remedy is
adequate if it is complete, beneficial and speedy. State ex
rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 178, 631
N.E.2d 119, 121.
Crim.R. 12(B)(2) provides that defenses and objections
based on defects in the indictment, other than failure to show
jurisdiction in the court or to charge an offense, must be
raised before trial. In State ex rel. Jackson v. Allen (1992),
65 Ohio St.3d 37, 599 N.E.2d 696, a criminal defendant filed a
motion to dismiss indictments, alleging that the special
prosecutor who had obtained the indictments had been improperly
appointed. After the trial court denied the motion to dismiss,
the defendant's counsel filed a quo warranto action challenging
the right of the special prosecutor to hold that office. We
denied a writ of quo warranto based on the following:
"*** We conclude that Whitman [the defendant in the
underlying criminal case] is trying to quash the indictments
through this proceeding rather than appeal the trial court's
denial of his motion to dismiss. Since Whitman has an
available appeal remedy, we grant [the special prosecutor's]
motion for summary judgment and deny the writ for quo
warranto." Id., 65 Ohio St.3d at 39, 599 N.E.2d at 697.
Sheriff Johnson contends that Jackson is distinguishable
because, unlike the criminal defendant in Jackson, he has not
yet filed a motion to dismiss the indictment which has been
overruled in the underlying criminal case. However, the mere
fact that Sheriff Johnson has failed thus far to avail himself
of this remedy does not render that remedy inadequate; if that
were true, this criterion for a writ of quo warranto could be
thwarted simply by ignoring it. See State ex rel. Schneider v.
N. Olmsted City School Dist. Bd. of Edn. (1992), 65 Ohio St.3d
348, 350, 603 N.E.2d 1024, 1026, citing State ex rel. Cartmell
v. Dorrian (1984), 11 Ohio St.3d 177, 178, 11 OBR 491, 492, 464
N.E.2d 556, 558.
Pursuant to Jackson, where the appointment of a special
prosecutor like Talikka is challenged by a defendant in an
underlying criminal case, quo warranto relief is precluded
because of the available, adequate remedies of a motion to
dismiss the indictment with an appeal if the motion is
overruled and the defendant is convicted. Other cases have
recognized the propriety of these remedies to challenge the
appointment of a special prosecutor in a criminal proceeding.
State v. Warner (1990), 55 Ohio St.3d 31, 41-45, 564 N.E.2d 18,
29-33; State v. Ross (1982), 6 Ohio App.3d 25, 6 OBR 76, 452
N.E.2d 339. Extraordinary relief is not available to challenge
either the validity or sufficiency of an indictment. See Luna
v. Russell (1994), 70 Ohio St.3d 561, 639 N.E.2d 1168.
Sheriff Johnson further contends that State ex rel.
Williams v. Zalesky (Dec. 8, 1982), Lorain App. No. 3364,
unreported, required him to challenge Talikka's appointment via
quo warranto rather than by motion to dismiss or appeal.
However, Jackson is controlling. Accordingly, Sheriff
Johnson's first proposition of law lacks merit.
Sheriff Johnson asserts in his remaining propositions of
law that the court of appeals erred in holding that the common
pleas court did not abuse its discretion by appointing Talikka
to act as a special prosecutor. However, since Sheriff
Johnson's first proposition is manifestly without merit, his
remaining contentions on appeal are moot and need not be
addressed.
Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.