Black v. Ashland Cty. Prosecutor's Office

2012 Ohio 1306

• Court: Ohio Court of Appeals
• Decided: March 26, 2012
• Docket: 2011-CA-054
• Status: Published

Opinion

[Cite as Black v. Ashland Cty. Prosecutor's Office, 2012-Ohio-1306.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: JAMES BLACK : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Petitioner : Hon. Julie A. Edwards, J. -vs- : : ASHLAND COUNTY : Case No. 2011-CA-054 PROSECUTOR'S OFFICE : : Respondent : OPINION

CHARACTER OF PROCEEDING: Writ of Prohibition

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: March 26, 2012

APPEARANCES:

For Petitioner For Respondent

JAMES BLACK PRO SE RAMONA FRANCESCONI ROGERS Ashland County Prosecutor BY MICHAEL D. DONATINI Assistant Prosecuting Attorney 110 Cottage St., Third Floor Ashland, OH 44805 [Cite as Black v. Ashland Cty. Prosecutor's Office, 2012-Ohio-1306.]

Gwin, J.

{1} Petitioner, James Black, has filed a Petition for Writ of Prohibition which

he has moved to amend to include a Writ of Habeas Corpus. Respondent has filed a

Motion to Dismiss urging this Court to find Petitioner has named an improper

Respondent and Petitioner has an adequate remedy at law.

{2} In order for a writ of prohibition to issue, petitioner must prove that: (1) the

lower court is about to exercise judicial authority; (2) the exercise of authority is not

authorized by law; and, (3) the petitioner has no other adequate remedy in the ordinary

course of law if a writ of prohibition is denied. State ex rel. Keenan v. Calabrese (1994),

69 Ohio St.3d 176, 178, 631 N.E.2d 119. A writ of prohibition, regarding the

unauthorized exercise of judicial power, will only be granted where the judicial officer's

lack of subject-matter jurisdiction is patent and unambiguous. Ohio Dept. of Adm. Serv.,

Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48,

562 N.E.2d 125. State ex rel. Daniels v. Harris, 2008 WL 5197131, 1 (Ohio App. 5

Dist.).

{3} The named Respondent in this case is the Ashland County Prosecutor. A

writ of prohibition is used to limit judicial authority. The Ashland County Prosecutor

does not have judicial authority, therefore, prohibition cannot lie to prevent the Ashland

County Prosecutor from acting.

{4} With regard to Petitioner’s habeas corpus claim, Petitioner has also failed

to name a proper respondent. See Tate v. Bernard (Nov. 21, 2001), Trumbull App. No.

2001–T–0087, 2001 WL 1497206 (“the writ will lie only against the individual who is

directly responsible for keeping the petitioner in custody”); Jackson v. State (Apr. 19, Ashland County, Case No. 2011-CA-054 3

2002), Cuyahoga App. No. 81007, 2002 WL 737495 (dismissal of petition for writ of

habeas corpus appropriate when petitioner named the state rather than the sheriff—his

custodian as the respondent). Petitioner has named the Ashland County Prosecutor

rather than the warden or sheriff who is responsible for keeping Petitioner in custody.

{5} Because neither prohibition nor habeas corpus lie against the named

Respondent, the petition is dismissed for failure to state a claim upon which relief may

be granted.

By Gwin, J.,

Delaney, P.J., and

Edwards, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. JULIE A. EDWARDS

WSG:clw 0315 [Cite as Black v. Ashland Cty. Prosecutor's Office, 2012-Ohio-1306.]

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JAMES BLACK : : Petitioner : : : -vs- : JUDGMENT ENTRY : ASHLAND COUNTY : PROSECUTOR'S OFFICE : : : Respondent : CASE NO. 2011-CA-054

For the reasons stated in our accompanying Memorandum-Opinion, the petition is

dismissed for failure to state a claim upon which relief may be granted.