# Petition — Berger v. McMonagle

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 1017

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0583%3A1. Public record. Not legal advice.