# In Re Proceedings to Compel McAuley > Ohio Court of Appeals · April 12, 1979 · 63 Ohio App. 2d 5 URL: https://www.frixlaw.com/law-library/cases/3747354 ## Case - **Full name:** In the Matter of Proceedings to Compel Robert J. McAuley as a Witness in a Criminal Proceeding in California. - **Court:** Ohio Court of Appeals - **Decided:** April 12, 1979 - **Citations:** 63 Ohio App. 2d 5; 17 Ohio Op. 3d 222; 408 N.E.2d 497; 1979 Ohio App. LEXIS 8404 - **Precedential status:** Published - **Opinion:** Dissent by Krupansky - **Judges:** Krenzler, Day, Krupansky - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3747354 ## How later opinions describe it (automated extraction) - applying balancing test to determine whether a reporter may be compelled to reveal confidential information or the identity of a confidential source ## Opinion text Krupansky, J., dissenting. I respectfully dissent from the majority for the reasoning contained in the following opinion. Appellant, John Monica, who designates himself the real party in interest in the notice of appeal, contends the trial court erred in denying the application of the California court *25 to compel Robert J. McAuley, appellee, to attend criminal discovery proceedings in California as a necessary and material witness. The majority reaches the merits of this claim. However, a preliminary issue is presented. On November 8,1978, Robert McAuley, appellee, filed a motion to dismiss the appeal on the grounds that appellant is not a proper party to take this appeal from the trial court’s judgment. The majority overrules this motion. I find the motion is meritorious and would dismiss this appeal. Therefore, I must respectfully dissent from the judgment and the reasoning of the majority. The application to compel Robert J. McAuley to attend the criminal proceedings in California was filed by the California court in the Cuyahoga County Court of Common Pleas. This action, taken by the California court, is governed by the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (Act), codified in R. C. 2939.25 through R. C. 2939.29. Under the Act, a state is empowered to request another state to compel a witness to attend criminal proceedings in the former state only if both states have enacted the Act. “It has been held that the Uniform Act does not extend the jurisdiction of the local courts beyond the territorial limits of the state, but depends upon principles of comity and adoption of the same act by the other state.” 81 American Jurisprudence 2d Witnesses § 8. See State v. Jordan (1958), 83 Ariz. 248 , 320 P. 2d 446 , certiorari denied 357 U.S. 922 , rehearing denied 358 U.S. 859 ; State v. Blount (1953), 200 Ore. 35 , 264 P. 2d 419 , certiorari denied 347 U.S. 962 ; 44 A.L.R. 2d 732 . The statutory language supports this finding. Thus, the fact that Robert McAuley is located in Ohio does not extend the jurisdiction of the California court (in which the criminal proceedings against John Monica were instituted) to the state of Ohio. Necessarily, since the application to the Ohio court is not an extension of the criminal proceeding in the California court, this application must be considered as a separate and distinct action to which appellant was not a party. R. C. 2939.26 provides in pertinent part as follows: “If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state, certifies under the seal *26 of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution or grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in this state in which such person is, such judge shall fix a time and place for a hearing and shall make an order directing the witness to appear at a time and place certain for the hearing.” (Emphasis added.) R. C. 2939.26 requires the judge of the court in which the criminal proceedings are pending to present a certificate (application) to the Ohio court. There is no provision in the statute for the defendant to make application to the Ohio court. He is not contemplated as a party to the interstate action. Rather, a two-step process is provided in order to protect the rights of the defendant and the prospective witness. The defendant’s right to compulsory process has been extended by the Act to all other states where the Act has been enacted. To protect and expand a defendant’s right to compulsory process, the defendant may petition the court in which the charges against him will be prosecuted to obtain a witness outside of the court’s jurisdiction. If the court then finds the witness is necessary and material to defendant’s case, the judge of that court will make an application to a court in the county where the witness is located to subpoena the witness to attend the criminal proceedings. The second court holds a hearing at which the witness is required to attend. R. C. 2939.26 then provides as follows: “If ata hearing such judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence, and of any other state through which the witness may be required to pass by ordinary course of travel, will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court *27 where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence, at a time and place specified in the summons. In any such hearing the certificate is prima-facie evidence of all the facts stated therein.” (Emphasis added.) It should be noted the summons to appear is issued from the state where the witness is located and not from the state where the defendant is located. Thus, the state in which defendant is located (California) cannot issue the summons. Rather, the state in which the witness is located (Ohio) has the prerogative to direct the witness to attend the proceedings as a matter of comity. This is a necessary result since, under the Act, the jurisdiction of the California court has not been extended to Ohio. Clearly, the criminal proceedings brought by the state of California against appellant in California and the original proceedings brought by the state of California in Ohio to compel a witness to attend the California criminal matter are two separate and distinct proceedings. Appellant’s status as a defendant in the California criminal proceedings does not confer upon him the status of a party in the original proceedings brought in Ohio by the state of California. Furthermore, appellant has never attempted to obtain party status by intervening in the original proceedings brought in Ohio. Certainly, appellant is a very interested party. His defense could be adversely affected by Ohio’s refusal to send appellee to California. However, appellant’s recourse is in the California courts. His original petition was to the California court. If he feels he has been denied his right to compulsory process, he should have taken action against the California court for its failure to appeal the Ohio decision. In State, ex rel. Jones, v. Wilson (1976), 48 Ohio St. 2d 349 , the prosecuting attorney brought a mandamus action to compel a judge to apply the required sentence in the Ohio Revised Code against a defendant who had been improperly sentenced. The Court of Appeals issued a writ of mandamus and the trial judge complied. The defendant attempted to appeal from the issuance of the writ by the Court of Appeals. The Ohio Supreme Court dismissed the appeal because the defendant was not a party to the action and he had not intervened in the action. *28 In the instant matter, the appellant was not a party to the action in Cuyahoga County Court of Common Pleas and has not attempted to intervene in that action. It is true the Common Pleas Court allowed appellant to make an appearance and to present a brief in support of issuing the subpoena; however, this alone does not make him a party to the action. In City of Cincinnati v. Kellogg (1949), 86 Ohio App. 518 , affirmed (1950), 153 Ohio St. 291 , a taxpayer had requested the City Solicitor to bring suit against certain city officials. The taxpayer’s motion to intervene was denied. The Ohio Supreme Court stated the following: “Furthermore, the record discloses that the Court of Common Pleas instructed the taxpayer to be present at the hearing. He did attend, and the court invited him to participate in the presentation of the case. This invitation was accepted, and the taxpayer expressed his views at length. ” 153 Ohio St., at 293 . (Emphasis added.) Nevertheless, the court found he was not a party and was not entitled to appeal. The judgment of the Court of Appeals was affirmed. The Court of Appeals had held as follows: “There is no right independent of statute to appeal in any case by anyone. There is no authority, certainly, justifying an appeal by one who was not a party to the action in the trial court, and thus the trial court having committed no prejudicial error in refusing the taxpayer the right to intervene, he stands as an outsider to the appeal from the final judgment dismissing the action. ” 86 Ohio App., at 523 . (Emphasis added.) Clearly, only a party to an action can appeal the decision of the court. State, ex rel. Jones, v. Wilson, supra; Village of Amherst v. Wragg (1941), 72 Ohio App. 303 , affirmed (1942), 139 Ohio St. 371 . In the instant matter, appellant did not attempt to intervene in the proceedings in the trial court. He was allowed to submit a brief in support of the application. Further, he was indeed the real party in interest. However, he was not a party to the proceedings in the Ohio court. Only the California court was. As such, he had no right to appeal in his own name. Comity is given between Ohio courts and the courts of other states under the Act; by no means should the principles of comity extend to a citizen of one of these other states who acts in his own name under the Act. *29 Appellant’s recourse was against the California court’s failure to appeal the decision. The procedural requirements of the Act to institute this action in an Ohio court were adhered to by the courts of both states. There is nothing within the Act which extends any right of appeal to the defendant in the criminal proceedings (nor, for that matter, is the right of appeal specifically extended to the state of California under the Act). It is clear appellant could not bring this action in the Court of Common Pleas in his own name; only the state of California could institute the action in Ohio. It follows, the appellant cannot now take the place of the only proper party, the state of California, on appeal from the judgment of the Court of Common Pleas. Since appellant was not a party to the proceedings in the Cuyahoga County Court of Common Pleas, this court has no jurisdiction over the person of John Monica, therefore, the appeal taken in his name should be dismissed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3747354. Public record. Not legal advice.