Petition — Berger v. McMonagle

83-588

No.

Office -Supreme Court, U.S.

FILED

OCT 11 1983

oe ae 2 oe STEVAS,

CLERK

Supreme Court of the United States

October Term, 1983

SANFORD J. BERGER,

Petitioner,

-Vs-

McMONAGLE, JUDGE, ET AL.,

Respondents.

On Writ Of Certiorari To The Supreme Court

Of The State Of Ohio

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Ohio

SANFORD J. BERGER (Pro Se)

Counsel of Record

1836 Euclid Ave., Room 305

Cleveland, Ohio 44115

Phone: (216) 781-5950

Of Counsel:

ROBERT M. FERTEL

1836 Euclid Ave., Room 305

Cleveland, Ohio 44115

QUESTIONS PRESENTED

1. Can a state constitution guarantee-

ing an elected judiciary, and mandating that

all judges who reach the age of seventy must

retire: by constitutional amendment then

provide the Chief Justice of the state supre-

me court with authority to appoint those same

retired judges for perpetually renewable

terms at his pleasure without the state amend-

ment violating the Equal Protection Clause of

the Fourteenth Amendment?

2. %In a suffrage state, can the Chief

Justice of the state supreme court unilater-

ally set up his own private state-wide

judicial system, totally independent of the

Ohio electorate, comprised of elderly private

citizens who are only accountable to the Chief

Justice, and whose tenure in office is total-

ly dependent upon their being in good favor

with the Chief Justice?

3. Can a state supreme court, by its

promulgated Rules 2f Superintendence govern-

ing multi-judge trial courts, create three

classes of litigants: one class being enti-

tled to an elected judge chosen by random

public lot; a second class assigned an elect-

ed judge by secret choice of the administra-

tive trial judge, and a third class assigned

a non-elected retired judge by arbitrary

decision of the administrative trial judge?

4. Does unconstitutional state depriva-

tion of property occur when a state supreme

court promulgates a rule governing multi-

judge trial court procedures which mandates

that elected judges be assigned by random

public lot to all new cases unless removed

or disqualified for justifiable cause, while

simultaneously giving license to the admin-

istrative judge thereof to arbitrarily

deprive a litigant of such due process right

without predeprivation procedures?

5. Subsidiary question. Can the Chief

Justice of a state supreme court act in a

legislative capacity by arbitrarily appoint-

ing retired judges to various home rule

entities in a state, and by virtue of such

appointments, compel those governmental

entities to pay the state established com-

pensation owing, when those governmental

entities have not agreed beforehand to assume

those liabilities?

TABLE OF CONTENTS

Quest ions Presented *“eeteenereenrees#8# # eeeeoeeee?

Opinions BElOw ....seeesseeeceees bene e eens

SIP ESPCICCION cccveccccccccccsccscecceses °

Constitutional and Other Provisions

Involved *eenwreeese eo*eeoeeeeee 8 @ *eeeeoeeee’e e*eneee

Statement of the Case Including the

Raising of the Federal Questions ......

Argument ....cseeeeee ccoeccces coccece ccccce

CONCIUSION .cccccccccsecs eo coceceseses oeee

Appendix:

Order of the Supreme Court of en ee

Journal Entry and Opinion of the

Court of Appeals for Cuyahoga

County, ORIO ccccvccsccsvcces see ent

Provision of the Constitution of

the United States ........ cccceceseve

Provisions of the Constitution of

the State of Ohio ........6.6. aveneoee

Ohio Revised Code Sec. 141.16 .........A23

Rule 15 of Court of Common Pleas,

Cuyahoga County, Ohio ....seeeeeeeee A2h

iv

TABLE OF AUTHORITIES

Cases

Baker v, Carr, 369 U.S. 186, 207-208

CUED cc cb shes snehe ceeds tanebeees 9

Berger v, Berger, (8th App. Dist.),

S Ohta tee. 36-326 CIS) cecccaces 2,4,10

Cherrington v, Hutsinpiller,

112 Ohio St. 468, 475 (1925) ...... 7

Flynt v, Leis, 574 F. 2d 874, 877

(C.A., 6, 1978), vacated on other

grounds, 439 U.S. 438 (1979) ...... 1]

Giceccio v, Pennsylvania,

$62 U.S. 399,. 902 (1966) ccaccccess 1]

Hadley v, Junior College District,

367 U.S, 50, SS (ISTO) ccccnccvcces 9

Hilton v, Bell, 108 Ohio St. 233, 238

LEE? beGacaehes cketbucestseetheeees 7,9

Hortonville District v, Hortonville

Education Ass., 426 U.S. 482, 496

PUREST cdvcecwcétncececehéw'enecopes 9

Ingraham v, Wright, 430 U.S. 651, 678

SSUES cegvbexubavesd ves covets nenaee 10

James v, Strange, 408 U.S. 128, 140

PoE? cbshenvess ba bbe ones 0eeeew ees 8

Logan v, Zimmerman Brush Co,, et al.,

OOS UB. BIS CIGRS) cpwccvcvvesnens 8,10,12

Marshall vy, Jerricho Inc., 446 U.S.

298, 2h2Z (19GO). wcvcceccecs ecsnonke 1

Mathews v. Eldridge, 424 U.S. 319,

ree a kk eek weed ween ae 12

Neimotko v, Maryland, 340 U.S. 268

SUE 2UUU ce bpueeetaeae ea cs 6 eeeo neue 9

North Georgia Finishing Inc, v,

Di-Chem, Inc., 419 U.S. 601 (1975) .. 1]

Parratt v, Taylor, 451 U.S. 527, 539

PPE ccs eh tcdhetéteones 6s ete eeenna eh 1]

Pyler v, Doe, 457 U.S. 202, 216 nI&

De culGkstctwesebaddaudecoventeetews 8

Reynolds v. Sims, 377 U.S. 533,

Pee Cee, and ccaveawnved veeseeene 9

Rosenberg v, Gattarello, (8th App. Dist.)

49 Ohio App. 2d 87 (1976) ......+00-- 2,10

Santosky v. Kramer, Com'r,

WSS U.S. FOS, 755 (19S2Z) ccccsccsere 12

Schweiker v, Wilson, 450 U.S. 221, 230

PENNE b4d0 be brevdun ks oe 000%e paces 8

State ex rel, Berger v, McMonagle,

eS ee Ot | eee re ]

State ex rei, Graves v, Brown,

PS Gite St, 26: Gl (ISEB) ce cccvucccee 7

State ex rel, Winn v. Galvin,

De Gree. St. BB.SE CUGFS) — 00 cv awcnieces 6

U.S. v, August and Bozoff, No.82-80156

Unreported, (£.D., Mich., S.D0.,

PR Et Ee chee uw he eheeene atheh 9

Vitek v, Jones, 445 U.S. 480,

490-491 mn. 6 (1980) ...c cece eeeeceees 12

Williams v, lilinois, 399 U.S. 235

[eet Uebkos ca knd caholeweus bia aaens 8

Williams v, Rhodes, 393 U.S.

eee Sen E SE Veen s ben cewemees Pe 9

Constitutional Provisions,

Statutes and Rules

U.S. Constitution:

meen: FIG, SeG. } 020 cr'ecsvs 8,10

Ohio Constitution:

Sees Demeter, Or ciGte. IV ocencdas 5,14

Se, GIG), Article 1¥-s06ccdeasee 4,5,6,14

Ohio Revised Code:

ee ee) eee rore rr eer eee veeas 6

PE SES Oe kc actnenes anne ences 10

De BOE t Cee bs 66 -b0cncnceptnes nee 10

Ohio Supreme Court Rules of Superintendence:

i eee ee seewevervesseeen 3,7,10,14

Rules of Court of Common Pleas, Cuyahoga

County, Ohio:

cee Were: 8S. voces sessed es cscncn nels tae

Texts

1984, George Orwell ..... ‘askew emce 13

Ohio State Bar Ass. Report,

eet E. T9GS vccccccscens homme 7

THE OPINIONS DELIVERED BELOW

The Opinion of the Supreme Court of

Ohio is entitled State ex rel. Berger v,

McMonagle, 6 Ohio St. 3d 28 (1983) and is

appended as Al-A9, The Opinion of the Court

of Appeals, Eighth Appellate District, Cuya-

hoga County, Ohio is unreported and appended

as Al0-A21.

JURISDICTION

The Opinion of the Supreme Court of

Ohio was rendered on July 13, 1983, and this

petition for certiorari was timely filed.

This Court's jurisdiction is invoked under

28 U.S.C. Sec. 1257(3).

CONSTITUTIONAL, STATUTORY AND REGULATORY

PROY'SIONS INVOLVED

Fourteenth Amendment to the United

States Constitution.

Sec. 6, Article IV of the Ohio Constitu-

tion.

Ohio Revised Code Sec. i41.16.

Ohio Revised Code Sec. 2921.44.

Ohio Revised Code Sec. 2921.45

Common Pleas Superintendence Rules 3

and 4,

Local Rule 15 of Court of Common Pleas,

Cuyahoga County, Ohio.

All appear in the Appendix; set forth

verbatim or in pertinent text.

STATEMENT OF THE CASE INCLUDING THE

RAISING OF THE FEDERAL QUESTIONS

Petitioner, Sanford J. Berger, has a

history of being '"steered'' to judges by the

administrative judges of the Court of Common

Pleas and the administrative judge of the

Division of Domestic Relations thereof, of

Cuyahoga County, Ohio, after he had been

assigned an elected judge by random public

lot.

In 1976, the law in Ohio was clear that

any action taken by a non-assigned intruding

judge was void. Rosenberg v, Gattarello,

(8th App. Dist.), 49 Ohio App. 2d 87 (1976).

In essence, the Court of Appeals said that

trial judges are not allowed to break the law,

Relying on Rosenberg, petitioner took an

appeal to the same Court of Appeals in 1981,

resulting in the decision in rger_v rger,

(8th App. Dist.), 3 Ohio App. 3d 125 (1981)

stating that actions taken by non-assigned

intruding judges, were now voidable only:

"The administrative judge for a

multi-judge division of the Common

Pleas Court has authority to deter-

mine preliminary matters in the

case when the assigned judge is

unavailable or to reassign any

case to himself or any other

judge of that court, by a jour-

nalized order stating a justifi-

able reason for transferring

responsibility for the case to

himself or to another judge.

Absent a journalized order by the

administrative judge --- explain-

ing his need for his action ...,

any other judge assuming to act

has no authority and his rulings

are voidable on timely objection

by any party." ¥*

In essence, the Court of Appeals now

said that trial judges were still not allowed

to break the law, but that there was now a

thirty day statute of limitations (time of

appeal) to challenge the illegality.

Sometime prior thereto, petitioner had

filed another action in the Court of Common

Pleas; lost on a summary judgment motion,

appealed and prevailed, and the case was

remanded. The administrative judge of the

Court of Common Pleas thereupon assigned it

by secret lot to an elected judge in contra-

vention of C.P, Sup. R.4& (A8) and Local Rule

15(A24) which mandate that only the Clerk of

Courts can have a sealed deck of elected

judges' names - no provision being made for

the administrative judge to also have a deck

of cards. The names of retired judges

assigned by the Chief Justice of the Ohio

4

Supreme Court, by virtue of Sec, 6(C),

Article IV (A22), are never contained in the

sealed deck.

Subsequently, the administrative judge,

without benefit of a journalized order, had

the case removed from the assigned elected

judge, and again without benefit of a journal-

ized order, assigned the case to retired

judge, George McMonagle. Judge McMonagle

thereupon called the matter for pre-trial,

whereupon petitioner filed objections to

Judge McMonagle sitting on the basis of

Berger v. Berger, supra, and the fact that

opposing counsel was the nephew of Judge

McMonagle. At the pre-trial hearing, peti-

tioner made demand that Judge McMonagle dis-

qualify himself, which demand was overruled,

as were petitioner's written objections.

Petitioner raising the federal constitutional

questions in his written and oral objections.

Petitioner then filed an action in the

Court of Appeals seeking a writ of prohibi-

tion preventing Judge McMonagle from hearing

the case and a writ of mandamus ordering the

administrative judge to have the Clerk of

Courts assign the proceeding by random

public lot to a duly elected judge, raising

the federal constitutional questions therein.

The Opinion of the Court of Appeals in

Berger v, Berger, supra, and the Opinion of

5

the Court of Appeals herein were both written

by the same judge, the Hon. Richard M, Markus.

The Court of Appeals denied the request -

ed writs (Al0O to A21), whereupon petitioner

appealed as of right to the Supreme Court of

Ohio, again raising the federal constitution-

al questions, wherein the requested writs

were again denied (Al to AQ).

In essence, the Opinions of both the

Court of Appeals and the Ohio Supreme Court

now hold that it is proper for trial judges

to knowingly and intentionally violate the

law and procedures promulgated to assure a

fair and unbiased trial, before trial, and

the only recourse is appeal and the hope of

success so that you can be sent back to the

same merry-go-round of injustice.

ARGUMENT

Sec, 6(A)(3), Art, IV of the Ohio

Constitution (A22) states that common pleas

judges shall be elected by the electors,

while Sec, 6(C), Art, IV (A23), states that

they cannot hold judicial office if they have

attained the age of seventy. In contradic-

tion of the age limitation, Sec C), Art. IV

then grants the chief justice of the Ohio

Supreme Court authority to appoint retired

judges with no limitation as to length of

mor.

appointment. For example: the following

front page items from Cleveland's only news-

paper, The Plain Dealer:

"Judge illegal for aan cases _in

doubt. Sept. 7, 1983.

Theodore M. Williams served illegally

as a visiting judge in Cleveland Muni-

cipal Court for more than seven years

because he had not been reappointed,

Ohio Supreme Court officials have

determined........His daily pay was

the same as municipal judges who earn

$50,750 a year."

"Retired judge: Chief Justice cut

me out. Sept. 9, 1983.

Retired Shaker Heights Municioal

Judge Manuel M. Rocker said he has

been unable to serve as a visiting

judge in Greater Cleveland courts

this year because he offended Ohio

Supreme Court Chief Justice Frank D.

Celebrezze by writing an article on

judicial merit selection....."

Sec, 6, Art, IV became effective on No-

vember 6, 1973, and by virtue of Ohio Rev,

Code Sec, 141,16, at (A23), the Chief Justice

has been able to set up a2 statewide network

of retired private citizens as judges and

have the counties wherein they sit pay their

compensation, Stat rel, Win in,

39 Ohio St. 2d 58 (1974). They are only

accountable to him and must remain in his

good favor. Coincidentally, it is probably

the most powerful political entity in the

state, assuring election and re-election of

7

the judiciary favored by the Chief Justice.

When the younger brother of the Chief Justice

decided to run for the Ohio Supreme Court, he

was elected with ease, eventhough he was

deeme) "unqualified'' by the Ohio State Bar

Association. In response, the Supreme Court

stripped the Bar of the power to hear grie-

vances against judges, and empowered the

Chief Justice to appoint a nine member board

in its place. Qhio State Bar Association

Report, August 8, 1983.

Accordingly, the appointed judiciary,

arrived, as Sandburg's Fog, on little cat

feet, unscrutinized by the Ohio electorate,

That the concept of an appointed judiciary

was repugnant to the Ohio Supreme Court pre-

viously, was set forth in Hilton v, Bell,

108 Ohio St. 233, 238 (1923):

"Not only does the express language

of the judicial article of the

Constitution, but its entire spirit,

breathe antagonism to an appointed

judiciary."

The opinion then continued that only the

state Governor has power to make appointments,

and then only to fill a vacancy until the

next general election. Also see, Cherrington

v, Hutsinpiller, 112 Ohio St. 468, at 475

(1925), and State, ex rel, Graves v, Brown,

18 Ohio St. 2d 61 (1969).

C.P, Sup, R.4 (A8) and Local Rule 15

(A24), when read in pari materia, state that

a litigant is procedurally entitled to a

blind draw public lot assignment of an

elected judge (since only the names of

elected judges are in the sealed deck).

When a litigant is "steered" to a retired,

non-elected judge, the result is similarly

situated litigants being treated in a dis-

similar manner. As in Logan v, Zimmerman

Brush Co, et al., 455 U.S. 426 (1982), this

is the very essence of arbitrary state action,

Imposing special disabilities upon

certain individuals suggests the kind of

"class or caste" treatment the Fourteenth

Amendment was designed to abolish. Pyler vy,

Doe, 457 U.S. 202, 216 n. 14 (1982). "The

Equal Protection Clause imposes a require-

ment of some rationality in the nature of the

class singled out." James v, Strange, 407

U.S. 128, 140 (1972).

Laws nondiscriminatory on their face may

be grossly discriminatory in their operation;

Williams v, Illinois, 399 U.S. 235 (1970),

and classifications can only be created in

a manner rationally related to legitimate

governmental objectives. Schweiker v, Wilson,

450 U.S. 221, 230 (1980). Permitting the

administrative judge to shuffle case assign-

ments without any standards renders the

practice arbitrary and discriminatory.

9

Neimotko v, Maryland, 340 U.S. 268 (1951).

Practices allowing the supposedly

temporary appointment of retired judges in-

fringes on a litigant's right in a suffrage

state to elect and hold accountable persons

who perform duties as judges or other elected

offices. Hortonville District v, Hortonville

Education Ass., 426 U.S. 482, 496 (1976), and

Hilton v. Bell, supra, p. 238.

Petitioner's right to vote is unconsti-

tutionally diluted when he is deprived of

his right to have his case heard by a judge

elected by the electorate. He is not being

denied the right to vote, but the benefit of

the consequences of his right to vote. Baker

v. Carr, 369 U.S. 186, 207-208 (1962);

Williams v. Rhodes, 393 U.S. 23, 30-31 (1968);

Reynolds v, Sims, 377 U.S. 533, 554-555

(1964), and Hadley v, Junior College District,

397 U.S. 50, 54 (1970).

In a recent well publicized, but as yet

unreported federal criminal case, i AA

August and Bozoff, No. 82-80156 (E.0., Mich.,

S$.D., June 28, 1983), a prominent bankruptcy

attorney and an intake clerk were convicted

of violating the federal obstruction of

justice statute, 18 U.S.C. Sec. 1503, by

manipulating the blind draw assignment pro-

cedure. Ohio, too, has similar criminal

statutes:

10

Ohio Rev, oe Sec, 2921.44

Dereliction of Duty

(E) No public servant shall reck-

lessly fail to perform a duty

expressly imposed by law with

respect to his office, or reckless-

ly do any act expressly forbidden

by law with respect to his office.

Ohio Rev, Code Sec, 2921.45

Interfering with civil rights.

(A) No public servant, under

color of his office, employment,

or authority, shall knowingly

deprive, or conspire or attempt

to deprive any person of a consti-

tutional or statutory right.

Can an act which is morally, ethically

and criminally wrong when performed on a

federal level by an attorney and federal

employee be purged of its illegality simply

because it is performed on a2 state level by

an administrative judge?

C.P. Sup, R.4& and Local Rule 15 as in-

terpreted previously in Rosenberg and Berger,

supra, and even without interpretation,

created a property interest protected by the

Due Process Clause of the Fourteenth Amend-

ment, Logan v, Zimmerman Brush Co,, et al,,

supra.

Unlike the openness of the school

environment in Ingraham vy, Wright, 430 U.S.

651, 678 (1977), an unpopular litigant whose

case is arbitrarily transferred or reassigned

secretly, is faced with the impossible task

of proving malice or bad faith. Absent

1

standards for transferring or reassigning

cases, there is a deprivation of a property

interest without due process safeguards

being employed. Giaccio v, Pennsylvania,

382 U.S. 399, 402 (1966).

A plaintiff in a civil case is entitled

to a fair hearing before a fair tribunal.

Marshall _v, Jerricho Inc., 446 U.S. 238, 242

(1980). As clearly stated in Flynt v, Leis,

S74 F. 2d 874, 877 (C.A., 6, 1978), vacated

on other grounds, 439 U.S. 438 (1979):

"In order to insure regularity and

impartiality in the administration

of justice and secure the similar

treatment of similar cases, judges

may not upset reasonable expecta-

tions in the important affairs of

life, such as employment of counsel

without a hearing, the application

of a reasonably clear standard, and

@ statement of reasons. Otherwise,

it would be too easy to justify and

too difficult to remedy random

arbitrariness and sporadic justice."

There is no necessity for quick action

nor the impracticality of a predeprivation

hearing herein, Cf. Parratt v. Taylor, 45]

U.S. 527, 539 (1981), but there is a suf-

ficient probability of irreparable injury

if the reassignment proves unjustified to

require a predeprivation hearing. North

Georgia Finishing Inc. v. Di-Chem, Inc.

419 U.S. 601 (1975).

12

The suggested procedure of accepting

the wrong, forcing the litigant through a

time consuming and expensive trial, and then

a costly appeal in hopes of returning to the

place of beginning for the same treatment,

is calculated to exhaust a litigant and

constitutes a substantial burden on his

constitutional right of access to the courts

for redress of grievances.

Herein, the state does not provide any

procedures to be used in the deprivation of

@ protected property interest; but even if

it did, the procedural requirements of the

Due Process Clause are still determined by

federal law. Vitek v, Jones, 445 U.S. 4&0,

490-491 n. 6 (1980); Logan v, Zimmerman

Brush Co., supra, p. 432, and Santosky vy,

Kramer, Com'r, 455 U.S. 745, 755 (1982).

lf the three required factors enuncia-

ted in Mathews v, Eldridge, 424 U.S. 319,

333 (1976) are to be applied, the Due Process

Clause requires a predeprivation hearing

before judge manipulation is engaged in.

There is also the subsidiary question

as to whether the Chief Justice of a state

supreme court can impose the burden of a

judge or judges upon an autonomous home rule

governmental entity without their prior

approval, as in the case of Judge Theodore

Williams, supra, who sat for seven years

13

without not only electorate approval, but

without being reappointed by the Chief Justi-

ce, although the governmental entity was

obliged to pay him compensation for those

seven years. But that is an issue unto

itself that space does not permit present

argument.

CONCLUSION

In 1948, George Orwel|! wrote a novel

satirizing the dehumanizing trends of the

age entitled "1984", In the world of Big

Brother and the Thought Police, there were

no elections anywhere. In Ohio, where we now

have Big Brother, a3 well as his Little

Brother, the threats to freedom do not come

from the executive branch as Orwell prophe-

sied; but surprisingly, come from the judicial

branch of government.

Language in the novel, was a primary

tool of manipulation, and doublethink was a

mental trick that had to be mastered by

rulers and ruled alike. Doublethink was

"the power cf holding two contradictory

beliefs in one's mind simultaneously and

accepting both of them,'' of using "conscious

deception while maintaining the firmness of

purpose that goes with complete honesty."

The opinions of the Ohio judiciary here-

in would have petitioner believe that every-

14

thing that has hapnened is proper, while his

fundamental sense of justice still struggles

to hold on to the belief that it is improper

- but where do you go to complain, or who do

you complain to, when there is no relief

within the state.

Orwell warned us that freedom is too

much taken for granted, that it needs to be

carefully watched and protected. He did not

say his fictional vision of 1984 was bound

to happen. He said it could happen - here.

His last word on the subject was a plea to

his readers: "Don't let it happen. It

depends on you,"

To petitioner, that portion of Sec, 6(C),

Article IV of the Ohio Constitution, which

permits the Chief Justice to create his own

private judicial system is a denial of the

equal protection of the law and impinges

upon the right of suffrage. Further, that

inherent in Sec. 6(A)(3), Article IV is a

fundamental right entitling every Ohio citi-

zen to have his constitutional rights deter-

mined by an elected judge - which right

cannot be abrogatea in a suffrage state

without violating federal equal protection

and substantive due process. And, finally,

by virtue of C.P, Sup, R, 4 and Local Rule 15,

a property interest was created entitling

each litigant to a duly elected judge

15

assigned by blind draw public lot of only the

Clerk of Courts, which property interest

cannot be taken except by predeprivation

due process procedures.

Petitioner now knocks on this Court's

door for the fourth time within the past four

years, asking the same questions essentially,

and seeking relief for himself and the people

of Ohio. Frankly, he has not enjoyed commit-

ting professional suicide in furtherance of

his oath as an attorney.

Respectfully submitted,

SANFORD J. BERGER (Pro Se)

(Counsel of Record)

1836 Euclid Ave., Room 305

Cleveland, Ohio 44115

Phone: (216) 781-5950

Robert M. Fertel,

Of Counsel.

Petitioner believes that 28 U,S,C, Sec,

2403(b) may be applicable, and has, accord-

ingly served three (3) copies of this Petition

upon the Attorney General of the State of

Ohio by regular mail. A separate proof o*

service is filed herewith.

Al

APPEND |X

ORDER OF THE SUPREME COURT OF OHIO

(Dated July 13, 1983.)

No. 82-34

THE SUPREME COURT OF THE STATE OF OHIO

The State of Ohio, City of Columbus

THE STATE, EX REL. BERGER,

Appellant,

vs.

McMONAGLE, JUDGE, ET AL.,

Appellees.

Appeal From The Court Of Appeals

For Cuyahoga County

Appellant, Sanford J. Berger, is the

plaintiff in a civil action currently pending

in the Court of Common Pleas of Cuyahoga

County. The action was originally assigned

to Judge Harry A, Hanna, who granted a mo-

tion for summary judgment in favor of the

defendants. On appeal, the court of appeals

reversed the judgment of the trial court and

remanded the cause for further proceedings.

On remand, Judge Leo M. Spellacy,

Administrative Judge of the Court of Common

Pleas and an appellee herein, reassigned the

case by lot. The assignment was accomp! ished

by selecting a card f.om a sealed pack in

A2

which each card bears the name of one judge

of the court of common pleas. In accordance

with this procedure, the case was assigned

to Judge James J. Sweeney.

Subsequently, Judge Spellacy, in his

capacity as the administrative judge, con-

ducted a review of the caseloads of the

judges in the court of common pleas for

purposes of adjusting each judge's docket

containing overaged cases. The underlying

civil action was among one of many civil

actions selected for transfer. Accordingly,

Judge Spellacy informed Judge Sweeney by

letter dated February 18, 1982, that the

civil action was eligible for transfer. On

February 22, 1982, Judge Sweeney entered an

order transferring the case to Judge

Spellacy.

Ultimately, the case was assigned to

Judge George J. McMonagle, also an aprellee,

for trial, Judge McMonagle is a retired judge

sitting by assignment pursuant to Section

6(C), Article IV of the Ohio Constitution.

Appellant filed an objection to the assign-

ment and verbally requested that Judge

McMonagle disqualify himself on the basis

that he ond counsel for the defense were

related to one another. The objection was

overruled on April 26, 1982.

Appellant then filed the instant action

A3

in the court of appeals seeking a writ of

prohibition to prevent Judge McMonagle from

hearing the case and a writ of mandamus

ordering Judge Spellacy to assign the pro-

ceeding by lot to a duly elected judge of

the court of common pleas. The court of

appeals granted appellees' motion for summary

judgment and dismissed the complaint conclud-

ing that appellant failed to satisfy the

requisite elements necessary for the issu-

ance of either writ.

(29) The cause is now before this court

on an appeal as of right.

Mr. Sanford J. Berger, pro se, and Mr.

Robert M. Fertel, for appellant.

Mr. John T. Corrigan, prosecuting

attorney, Mr. Thomas P. Gill and Mr. Patrick

Carroll, for appellees.

Per Curiam. This court has consistent-

ly held that in order for a writ of mandamus

to issue the relator must demonstrate ''(1)

that he has a clear legal right to the relief

prayed for, (2) that respondents are under a

clear legal duty to perform the acts, and (3)

that relator has no plain and adequate

remedy in the ordinary course of the law."

State, ex rel, Harris, v, Rhodes (1978), 54

Ohio St. 2d 41, 42 (8 0.0. 3d 36); State, ex

rel, Heller, v, Miller (1980), 61 Ohio St.

2d 6 (15 0.0. 3d 3), paragraph one of the

AL

syllabus; State, ex rel, Westchester, v,

Bacon (1980), 61 Ohio St. 2d 42 (15 0.0. 3d

53), paragraph one of the syllabus.

in order for awrit of prohibition to

lie, the following three requirements must

be satisfied: '(]) the court or officer

against whom it is sought is about to

exercise judicial or quasi-judicial power;

(2) the exercise of such power is unauthor-

ized by law; and (3) it will result in

injury for which no other adequate remedy

exists.'' Qhio Bell vy, Ferguson (1980), 61

Ohio St. 2d 74, 76 (15 0.0. 3d 117); State

ex rel, Rose Hill Burial Park, v, Moser

(1982), 1 Ohio St. 3d 13, 14; State, ex rel,

Dow Chemical Co., v, Court (1982), 2 Ohio

St. 3d 119, 120.

In support of the request for a writ

of mandamus, appellant argues that pursuant

oo C.F. Se. Ra 4, | Judge Spellacy was

required to have the remanded proceeding

assigned by lot to a duly elected judge of

the court of common pleas. Assuming, argu-

endo, that the proceeding was improperly

transferred from Judge Sweeney, in spite of

C.P. Sup. R. 3(B)* and 9,2 which (30) enable

the administrative judge to implement pro-

cedures to facilitate the prompt disposition

of cases, appellant has failed to demonstra-

te the absence of a plain and adequate

AS

remedy in the ordinary course of the law.

It is firmly established that the writ

of mandamus will not issue ''*** where the

relator has or had available a clear, plain

and adequate remedy in the ordinary course

of the law." State, ex rel, Sibarco Corp.,

v. City of Berea (1966), 7 Ohio St. 2d 85,

88 (36 0.0. 2d 75); State, ex rel, Leis, v.

Outcalt (1980), 62 Ohio St. 2d 331, 333 (16

0.0. 3d 392); State, ex rel. Bargar, v.

Ross (1978), 53 Ohio St. 2d 18, 19 (7 0.0.

3d 62); Lippert v. Engle (1977), 52 Ohio St.

2d 67 (6 0.0. 3d 234); State, ex rel. Press-

ley, v, Indus, Comm. (1967), 11 Ohio St. 2d

141 (40 0.0. 2d 141). Moreover, it is

axiomatic that a '"*** discretionary right of

appeal***(constitutes ) a sufficiently plain

and adequate remedy in the ordinary course

of the law."' State ex rel. Cleveland v.

Calandra (1980), 62 Ohio St. 2d 121, 122

(16 0.0. 3d 143).

Since appellant possesses an adequate

remedy at law by way of appeal to the court

of appeals in which he may contest the issue

of an improper assignment, the court below

properly dismissed the complaint for a writ

of mandamus.

Likewise, the availability of an appeal

is fatal to appellant's request for a writ

of prohibition. This court has repeatedly

A6

held that "(p)rohibition is not concerned

with the exercise of discretion by an infe-

rior tribunal having jurisdiction of the

subject matter and the parties in a cause

before it. That issue is for the determina-

tion of a reviewing court," even if errors

or defects exist in the proceedings. State,

ex rel, Staton, v, Court (1965), 5 Ohio St.

2d 17, 22 (34 0.0. 2d 10); State, ex rel,

Gi_ss, v, Marshall (1974), 39 Ohio St. 2d

92, 94 (68 0.0. 2d 54); State, ex rel, Dow

Chemical Co., v, Court, supra, at 12]. In

addition, "prohibition cannot be used as a

substitute for appeal,'' which is precisely

the fashion in which appellant seeks to

employ the writ. Stat x rel, Cr v

Crebs, v, Court of Common Pleas (1974), 38

Ohio St. 2d 51, 52 (67 0.0. 2d 61).

Appellant also contests the lawfulness

of the appointment of Judge McMonagle, a

retired judge, contending that Section 6(A)

(3), Article IV of the Ohio Constitution

requires a trial judge to have been elected

and currently serving his term. That sec-

tion provides in part:

"The judges of the courts of common

pleas and the divisions thereof shall be

elected by the electors of the counties,

districts, or, as may be provided by law,

other subdivisions, in which their respect-

ive courts are located***,"'

A7

We reject appellant's contention and conclude

that the aforementioned constitutional section

must be read in pari materia with Section 6

(C), Article IV of the Ohio Constitution

which provides, in percinent part:

"kek Any voluntarily retired judge, or

any judge who is retired under (31) this

section, may be assigned with his consent,

by the chief justice or acting chief justice

of the supreme court to active duty as a

judge ***,"'

The record conclusively demonstrates

that Judge McMonagle's assignment was made

in accordance with Section 6(C), Article IV

of the Ohio Constitution. Moreover, that

portion of Section 6(A)(3), Article IV,

pertains only to the election of judges and

not to the temporary assignment of a judge

having been duly elected and subsequently

retired under Section 6(C), Article IV of

the Constitution. Accord State v, Partanen

(1940), 67 Ohio App. 248 (21 0.0. 231).

For all of the foregoing reasons, the

judgment of the court of appeals is affirmed.

Judgment affirmed.

CELEBREZZE, C.J., W. BROWN, SWEENEY,

LOCHER, HOLMES AND C. BROWN, J.J., concur.

J.P. CELEBREZZE, J., not participating.

A8

lowe, Sup. R. & provides:

"For the purpose of these rules, the

individual assignment system is that system

whereby, upon the filing in, or transfer to,

a division of the court of a civil case, or

upon arraignment in a criminal case, a case

is immediately assigned by lot to a judge

thereof, who thus becomes primarily responsi-

ble for the determination of every issue and

proceeding in the case until its termination.

Under such system, all preliminary matters,

including requests for continuances, must be

submitted for disposition to the judge to

whom the case has been assigned, or if he is

unavailable to the administrative judge.

"Each multi-judge general division of

each court of common pleas shall adopt the

individual assignment system as defined here-

in for the assignment of all cases to judges

of the division for disposition."

2c LP, Sup. R. 3(B) provides, in per-

tinent part:

"The administrative judge shall be the

presiding officer of his division and shal]

have full responsibility for and control

over the administration, docket and calendar

of the division which he serves. He shal]

cause cases to be assigned to the judges

within the division and shall require such

reports from each judge concerning the

status of assigned cases as he may require

to assist him in discharging his overal]

responsibility for the observance of these

superintendence rules and for the termina-

tion of cases in his division without undue

delay,"

30. Pp, Sup. R. 9 provides:

"Nothing in these superintendence rules

prevents any local rule of practice which

seeks to promote the use of any device or

AQ

procedure which would tend to facilitate the

earlier disposition of cases, including the

making of local rules of court restricting

the volume of cases attorneys may undertake,"

Al0O

JOURNAL ENTRY AND OPINION OF THE COURT

OF APPEALS FOR CUYAHOGA COUNTY, OHIO

No. 45341

(Dated July 1, 1982)

COURT OF APPEALS OF OHIO

Eighth District

County of Cuyahoga

THE STATE, EX REL. BERGER,

Relator,

Vs.

McMONAGLE, JUDGE, ET AL.,

Respondents.

JOURNAL ENTRY AND OPINION

MARKUS, J.:

Relator is the plaintiff in a Common

Pleas Court case which was remanded to that

court following an appeal to this court.

Upon remand, the case was not assigned to

the original judge. Instead, the adminis-

trative judge assigned it to another regular-

ly serving judge of that court. One month

later, the administrative judge caused the

case to be transferred to his own docket and

assigned it to a retired judge, in order to

expedite its consideration.

Relator's objections to that ultimate

All

assignment were overruled by the assigned

retired judge. Relator then filed this ori-

ginal action, seeking a writ of prohibition

to prevent the respondent retired judge from

hearing the case and a writ of mandamus

ordering the respondent administrative judge

to assign the case to a regularly serving

judge by lot.

We grant respondents! motion for summary

judgment because relator has an adequate

remedy at law and because the reassignments

were not improper or unlawful.

Relator claims that the administrative

judge improperly reassigned the case to a

second judge because the assignment entry

failed to show the second judge was selected

by lot and failed to state reasons for the

reassignment. Relator relies principally on

this court's decision in Berger v., Berger

(Ct. App. Cuy. Cty., Oct. 22, 1981), No.

43365, but we find no support in that case

for his argument.

In Berger v, Berger, a divorce case

(filed by the relator in the present case)

had been repeatedly reassigned to new judges

without explanation while it was pending in

the domestic relations division of the Common

Pleas Court. We held that C.P. Sup. R. 4!

See C.P. Sup. R. 4, supra, AB.

Al2

required that a reassignment ''must be accom-

panied by a journal entry executed by the

administrative judge which states 4 justifi-

able reason for transferring responsibility

for the case to another judge.'"' Berger,

supra at 10-11.

However, C.P. Sup. R. 4& does not specify

the method used to select a judge when a

case is remanded fron) an appellate court.

Section 1, Rule 9 of the Ménual for Operation

of the /Cuyahoga County/ Common Pleas Court

states: "Cases remanded by the Court of

Appeals will be reassigned in the same manner

as new filings.'' The procedure for assign-

ing new cases is set forth in Local Rule 15

(A):

"All civil cases shall be

assigned to a judge by drawing a

card from a sealed deck handled by

the Clerk under the supervision of

the Court Administrator. The deck

shall be constructed so as to insure

that the identity of the next judge

name in the deck is unknown until

the card is drawn,"

The policy of reassigning a remanded

case to a new judge is justifiable because

the original judge may have some predisposi-

tion about the case or the parties. The

requirement that a judgment entry should

explain the reason for reassignment is

satisfied by the appellate court's order

remanding the case to the trial court.

Al3

Berger v, Berger, supra, does not re-

quire that a judgment entry show the method

used to select a judge. Absent a contrary

showing, selection by lot is presumed in

conformity with the Superintendence Rule and

the corresponding local rule. Further, in

this case, the administrative judge's affi-

davit attached to the summary judgment motion

affirmatively shows that the second judge

was selected by lot from a sealed deck in

compliance with Local Rule 15(A). Thus, the

reassignment of the case to the second judge

was entirely proper.

Relator further contends his case was

improperly transferred from the second judge

to the administrative judge's docket for

expedited hearing by a retired judge. We

disagree.

The preface to the rules of superinten-

dence states:

"Delay in both criminal and civil

cases in the trial courts of Ohio

is always a serious problem in the

administration of justice. It is

to be remembered that the courts

are created not for the convenience

or benefit of the judges and lawyers,

but to serve the litigants and the

interests of the public at large.

When cases are unnecessarily delayed,

the confidence of all people in the

judicial system suffers. The con-

fidence of tiie people in the ability

of our system of government to

achieve liberty and justice under

Al4

law for all is the foundation

upon which the American system

of government is built.

"The following rules are designed

(1) to expedite the disposition

of both criminal and civil cases

in the trial courts of this state,

while at the same time safeguarding

the inalienable rights of litigants

to the just processing of their

causes; and (2) to serve that

public interest which mandates the

prompt disposition of all cases

before the courts,"

The powers of the administrative judge

are set forth in C.P. Sup. R. 3(B):

"The administrative judge

shall be the presiding officer

of his division and shall have

full responsibility for and

control over the administration,

docket and calendar of the

division which he serves. He

shall cause cases to be assigned

to the judces within the divi-

sion and shall require such reports

from each judge concerning the

status of assigned cases as he may

require to assist him_in discharging

his overall responsibility for the

rya of these superintendence

rules and for the termination of

cases _in his division without undue

delay." (Emphasis added)

Thus, we find a strong policy in favor

of the prompt disposition of cases. The

policy is reiterated in C.P. Sup. R. 9:

"Nothing in these superintendence

rules prevents any local rule of

practice which seeks to promote

the use of any device or procedure

AlS

which would tend to facilitate

the earlier disposition of

cases, including the making of

local rules of court restricting

the volume of cases attorneys

may undertake,"

Section 1, Item 9 of the Manual for the

Manual for Operation of the /Cuyahoga County/

Common Pleas Court provides:

"The Administrative Judge will

undertake a periodic review of

each Judge's Total caseload and

provide for adjustments if and

when necessary,"

In his affidavit, the administrative

judge stated:

"S, That pursuant to my duties

as Administrative Judge, |

selected at random by computer

several overage cases to be

eligible for transfer from the

assigned judge.

"6, That Berger v, Palay, supra,

was one of the cases selected at

random for transfer and reassign-

ment.

‘ "7, That upon selection of this

case, | wrote a letter to Judge

Sweeney on February 18, 1982, in-

forming him of the eligibility of

this civil action for transfer,

"8, That Judge Sweeney transferred

this case to my docket by journal

entry dated February 22, 1982.

"9, That upon transfer of this

civil action to my docket for

control purposes, | assigned the

case to Judge George J. McMonagle

for trial.

Al6

"10, That Judge McMonagle is

a retired judge sitting by

assignment of the Supreme Court

of Ohio.

"Il, That as a retired judge,

Judge McMonagle does not have

his own docket of cases,"

Reassigning a case for the purpose of

expediting the litigation is proper and

commendable under the spirit of the rules

of superintendence. Although it may have

been better form for the journal entry to

show that the case was transferred in order

to avoid further delay in the disposition of

the case, the affidavit of the administrative

judge serves as sufficient explanation in

this case.

Relator argues that his case should not

have been assigned to a retired judge be-

cause Article IV, Sec. 6(A)(3) provides for

the election of all judges. That section

states:

"The judges of the courts of

common pleas and the divisions

thereof shall be elected by the

electors of the counties, districts,

or, as may be provided by law,

other subdivisions, in which their

respective courts are locared, for

terms of not less than six years,

and each judge of a court of common

pleas or division thereof shall

reside during his term of office

in the county, district, or sub-

division in which his court is located,"

Al7

However, that section must be read in con-

junction with Article IV, Section 6(C), which

states in part:

"Any voluntarily retired judge, or

any judge who is retired under this

section, may be assigned with his

consent, by the chief justice or

acting chief justice of the supreme

court to active duty as a judge and

while so serving shall receive the

established compensation for such

office, computed upon a per diem

basis, in addition to any retire-

ment benefits to which he may be

entitled."

The constitutional provision that

requires judges to be elected by electors

in the counties where their courts are

located does not apply to the temporary

substitution or assignment of a retired

judge. See State v, Partanen (1940), 67

Ohio App. 248, 251. See also State, ex rel,

Winn, v. Galvin (1974), 39 Ohio St. 2d 58.

Relator contends he was denied his cons-

titutional right to equal protection because

his case was not assigned to the retired

judge by lot. This argument lacks merit.

The State has a legitimate interest in pro-

viding for the disposition of cases without

delay. It is rational to assist this process

by transferring older cases from judges with

overcrowded dockets to available retired

judges who can more promptly dispose of such

cases,

Al8

Because retired judges are not regularly

assigned cases and do not have their own

dockets, their names cannot be included in

the randomly ordered sealed deck from which

regularly serving judges are selected. There-

fore, it is rational to transfer the cases to

the docket of the administrative judge and

then assign them for hearing by the retired

judge. Accordingly, relator's right to

equal protection was not violated.

For the foregoing reasons, the proce-

dures used to reassign relator's case were

proper and lawful, and did not deprive the

retired judge of jurisdiction. However,

even if Relator's claim had substantive

merit, we could not grant the requested

relief.

This court may issue a writ of prohibi-

tion when the following conditions are shown

to exist: "(1l) 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 unauthorized

by law; and (3) it must appear that the

refusal of the writ would result in injury

for which there is no other adequate remedy."

State, ex rel, Wall, v. Grossman (1980),

61 Ohio St. 2d 4, quoting State, ex rel,

Lechmann, v, Cmich (1970), 23 Ohio St. 2d Il.

Alg9

Relator has shown that the retired judge

is about to exercise judicial power, but he

has failed to show the existence of the re-

maining two prerequisites. Our examination

of the situation discloses no circumstance

which would deprive the retired judge of

jurisdiction to hear relator's case, even

if the assignment was improper. Thus, if

relator prevails in the trial of the under-

lying case, his adversary could not assert

the court's action was void for lack of

jurisdiction. Moreover, if there had been

an improper assignment, relator could have

raised the issue on appeal to this court,

just as he did in Berger v, Berger, supra.

A writ of mandamus will issue only

upon a showing that relator has a clear legal

right to the relief prayed for, respondent is

under a clear legal duty to perform the re-

quested act, and relator has no plain and

adequate remedy at law. State, ex rel,

Heller, v, Miller (1980), 61 Ohio St. 2d 6;

State, ex rel. Akron Fire Fighters v., Akron

(1978), 54 Ohio St. 2d 448.

Relator has not shown a clear legal

right to have his case assigned by lot,

rather than to an available retired judge.

Nor has he shown that the administrative

judge has a clear legal duty to do so.

Furthermore, relator has an adequate remedy

A20

at law, since he co'!d raise the issue of an

improper assignment in an appeal to this

court.

in Harless v. Willis Day Warehousing Co,

(1978), 54 Ohio St. 2d 64, 66, the court held:

"The appositeness of rendering a

summary judgment hinges upon the

tripartite demonstration: (1) that

there is no genuine issue as to any

material fact; (2) that the moving

party is entitled to judgment as a

matter of law; and (3) that reason-

able minds can come to but one con-

clusion, and that conclusion is

adverse to the party against whom

the motion for summary judgment is

made, who is entitled to have the

evidence construed most strongly in

his favor,"

2Relator does not assert any special

incapacity of the assigned retired judge to

hear this particular case. Any such claim

would have to be raised by an affidavit of

prejudice pursuant to R.C. 2701.03.

A2)

Respondents have satisfied all three

requirements. Therefore, respondents' motion

for summary judgment is granted and this case

is dismissed at relator's costs.

CELEBREZZE, J. and

NAHRA, J. CONCUR.

RICHARD M. MARKUS

Presiding Judge

For Relator: Sanford J. Berger,

Robert M, Fertel

For Respondents: John T. Corrigan,

Thomas P, Gill

Patrick Carrol]

A22

UNITED STATES CONSTITUTION

Amendment 14

Section |

All persons born or naturalized in the

United States, and subject to the jurisdic-

tion thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any |!aw which

shall abridge the privileges or immunities

of citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the

laws,

CONSTITUTION OF THE STATE OF OHIO

ARTICLE IV

Section 6, in pertinent part:

(A)(3) The judges of the courts of

common pleas and the divisions thereof

shall be elected by the electors of the

counties, districts, or, as may be provided

by law, other subdivisions, in which their

respective courts are located, for terms of

not less than six years, and each judge of

a court of common pleas or division thereof

shall reside during his term of office in

the county, district, or subdivision in which

A23

his court is located.

(C) No person shall be elected or

appointed to any judicial office if on or

before the day when he shall assume the

office and enter upon the discharge of its

duties he shall have attained the age of

seventy years. Any voluntarily retired

judge, or any judge who is retired under

thig section, may be assigned with his

consent, by the chief justice or atting

chief justice of the supreme court to active

duty as a judge and while so se-ving shal]

receive the established compensation for

such office, computed upon a per diem basis,

in addition to any retirement benefits to

which he may be entitied. Laws may be

passed providing retirement benefits for

judges.

OH!O REVISED CODE

Section 141.16

Compensation of assigned retired judges

Any voluntarily retired judge, or any

judge who is retired under Section 6 of

Article IV, Ohio Constitution, may be assign-

ed with his consent, by the chief justice or

acting chief justice of the supreme court,

to active duty as a judge and while so

serving shall receive the established com-

pensation for such office, computed on a per

A24

diem basis, in addition to any retirement

benefits to which he may be entitled.

Upon submission of a voucher signed by

the administrative director of the Ohio

courts, the auditor of state shall issue a

warrant upon the treasurer of state for the

entire amount payable to the assigned judge.

Annually, on the first day of August, the

auditor of state shall issue a billing to

the county treasurer of any county to which

such a judge is assigned for reimbursement

of the county's portion of the compensation

previously paid by the state for the twelve-

month period preceding the last day of June.

The County's portion of compensation shal]

be that part of each per diem paid by the

state which is proportional to the county's

share of the total compensation of a resident

judge of such court. The county treasurer

shall forward the payment within thirty days.

LOCAL RULE 15

COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

(A) All civil cases shall be assigned

to a judge by drawing a card from a sealed

deck handled by the Clerk under the super-

vision of the Court Administrator. The deck

shall be constructed so as to insure that

the identity of the next judge name in the

A25

deck is unknown until the card is drawn,

(B) It shall be the duty of the indivi-

dual judge to handle all court activity,

including motions and emergency matters,

status hearings, pretrials, trials etc.

associated with the cases assigned to him.

(C) The scheduling of civil cases for

status hearings and pretrials will he

handled by the Central Scheduling Office

(CSO) in accordance with the Manual of

Operations maintained by that office.

(D) The scheduling of a case for trial

will be accomplished by the judge to whom

the case is assigned. A trial date will be

set as the judge decides or at the conclusion

of the pretrial when no settlement has been

effected.