[Cite as Broderick v. Paris, 2018-Ohio-2123.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106987
JOHN M. BRODERICK
RELATOR
vs.
JUDGE MICHELLE L. PARIS
RESPONDENT
JUDGMENT: COMPLAINTS DISMISSED
Writs of Prohibition and Mandamus Order No. 516681
RELEASE DATE: May 25, 2018 ATTORNEY FOR RELATOR
L. Bryan Carr 1392 SOM Center Road Mayfield Heights, Ohio 44124
ATTORNEYS FOR RESPONDENT
Anne Marie Sferra William D. Mason Bricker & Eckler L.L.P. 1001 Lakeside Avenue East, Suite 1350 Cleveland, Ohio 44114
MARY J. BOYLE, J.:
{¶1} On March 28, 2018, the relator, John M. Broderick, commenced this prohibition
and mandamus action against the respondent, Judge Michelle Paris, to prevent her from
enforcing a condition of probation that Broderick may not have weapons in the marital home
during probation and to compel her to amend the conditions of probation to allow him to possess
firearms in his home. He also seeks an alternative writ to stay the condition of probation while
this court reviews his writ action. On April 24, 2018, the respondent judge filed a motion to
dismiss. Broderick filed his brief in opposition on May 7, 2018. For the following reasons,
this court grants the motion to dismiss, and dismisses the applications for writs of prohibition,
mandamus, and an alternative writ.
{¶2} The complaint and its attachments show that on December 22, 2017, while
Broderick was intoxicated, he argued with his wife over hunting and politics. During this
argument, he struck his wife twice in the face, knocked her glasses off, and jumped on her. At
this point, their minor son intervened to pull Broderick off his mother, and their minor daughter called the police. When the police arrived they noticed that Broderick appeared to be highly
intoxicated and that the wife had visible redness on her face. The police arrested Broderick for
domestic violence. At the time of the arrest, the wife handed over approximately 14 firearms
that were in the house.
{¶3} On February 28, 2018, Broderick pled guilty to disorderly conduct, and in an order
journalized on March 12, 2018, the respondent judge sentenced him to one-year active probation.
One of the conditions of probation is that “Broderick is to have no weapons in the marital
residence during the probation period.” (Probation order.) He now brings this writ action to
contest that condition.
{¶4} Broderick argues that although the judge has discretion in setting the conditions of
probation, those conditions must be reasonably related to the goals of community control —
rehabilitating the defendant, administering justice, and ensuring good behavior — and not be
unduly restrictive of the offender’s liberties. State v. Jones, 49 Ohio St.3d 51, 550 N.E.2d 469
(1990); State v. Mahon, 8th Dist. Cuyahoga No. 106043, 2018-Ohio-295; State v. Maynard, 47
Ohio App.3d 76, 547 N.E.2d 409 (6th Dist.1988); State v. Meldrum, 5th Dist. Stark No.
2001CA00289, 2002-Ohio-1859. Broderick continues that the subject condition is unlawful
because it bears no relation to those goals and infringes on his Second Amendment right to keep
and bear arms. Moreover, appeal is not an adequate remedy because an appeal will take almost
all of a year, the duration of the probation.
{¶5} These arguments are not well founded. The requisites for mandamus are well
established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent
must have a clear legal duty to perform the requested relief, and (3) there must be no adequate
remedy at law. Additionally, mandamus may not control judicial discretion, even if that discretion is grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914
(1987). Furthermore, mandamus is not a substitute for appeal. State ex rel. Daggett v.
Gessaman, 34 Ohio St.2d 55, 295 N.E.2d 659 (1973); State ex rel. Pressley v. Indus. Comm. of
Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph three of the syllabus. Thus,
mandamus does not lie to correct errors and procedural irregularities in the course of a case.
State ex rel. Jerninghan v. Gaughan, 8th Dist. Cuyahoga No. 67787, 1994 Ohio App. LEXIS
6227 (Sept. 26, 1994). Moreover, mandamus is an extraordinary remedy that is to be exercised
with caution and only when the right is clear. It should not issue in doubtful cases. State ex
rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer v. Ohio
Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel. Connole v. Cleveland
Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist.1993).
{¶6} In the present case, the conditions of probation are within the discretion of the
court and are reviewed on an abuse of discretion standard. Mahon, supra, at ¶ 6. Mandamus
does not lie for an abuse of discretion, even if the court grossly abuses its discretion. Thus,
mandamus will not issue.
{¶7} The principles governing prohibition are well established. Its requisites are (1) the
respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such
power is unauthorized by law, and (3) there is no adequate remedy at law. State ex rel. Largent
v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). Prohibition will not lie unless it clearly
appears that the court has no jurisdiction of the cause that it is attempting to adjudicate or the
court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35
N.E.2d 571 (1941), paragraph three of the syllabus. “The writ will not issue to prevent an
erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction.” State ex rel. Sparto v. Juvenile Court of Darke Cty.,
153 Ohio St. 64, 65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution
and not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common
Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940); and Reiss v. Columbus Mun. Court, 76 Ohio
Law Abs. 141, 145 N.E.2d 447 (10th Dist.1956). Nevertheless, when a court is patently and
unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is
immaterial to the issuance of a writ of prohibition. State ex rel. Tilford v. Crush, 39 Ohio St.3d
174,
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[Cite as Broderick v. Paris, 2018-Ohio-2123.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106987
JOHN M. BRODERICK
RELATOR
vs.
JUDGE MICHELLE L. PARIS
RESPONDENT
JUDGMENT: COMPLAINTS DISMISSED
Writs of Prohibition and Mandamus Order No. 516681
RELEASE DATE: May 25, 2018 ATTORNEY FOR RELATOR
L. Bryan Carr 1392 SOM Center Road Mayfield Heights, Ohio 44124
ATTORNEYS FOR RESPONDENT
Anne Marie Sferra William D. Mason Bricker & Eckler L.L.P. 1001 Lakeside Avenue East, Suite 1350 Cleveland, Ohio 44114
MARY J. BOYLE, J.:
{¶1} On March 28, 2018, the relator, John M. Broderick, commenced this prohibition
and mandamus action against the respondent, Judge Michelle Paris, to prevent her from
enforcing a condition of probation that Broderick may not have weapons in the marital home
during probation and to compel her to amend the conditions of probation to allow him to possess
firearms in his home. He also seeks an alternative writ to stay the condition of probation while
this court reviews his writ action. On April 24, 2018, the respondent judge filed a motion to
dismiss. Broderick filed his brief in opposition on May 7, 2018. For the following reasons,
this court grants the motion to dismiss, and dismisses the applications for writs of prohibition,
mandamus, and an alternative writ.
{¶2} The complaint and its attachments show that on December 22, 2017, while
Broderick was intoxicated, he argued with his wife over hunting and politics. During this
argument, he struck his wife twice in the face, knocked her glasses off, and jumped on her. At
this point, their minor son intervened to pull Broderick off his mother, and their minor daughter called the police. When the police arrived they noticed that Broderick appeared to be highly
intoxicated and that the wife had visible redness on her face. The police arrested Broderick for
domestic violence. At the time of the arrest, the wife handed over approximately 14 firearms
that were in the house.
{¶3} On February 28, 2018, Broderick pled guilty to disorderly conduct, and in an order
journalized on March 12, 2018, the respondent judge sentenced him to one-year active probation.
One of the conditions of probation is that “Broderick is to have no weapons in the marital
residence during the probation period.” (Probation order.) He now brings this writ action to
contest that condition.
{¶4} Broderick argues that although the judge has discretion in setting the conditions of
probation, those conditions must be reasonably related to the goals of community control —
rehabilitating the defendant, administering justice, and ensuring good behavior — and not be
unduly restrictive of the offender’s liberties. State v. Jones, 49 Ohio St.3d 51, 550 N.E.2d 469
(1990); State v. Mahon, 8th Dist. Cuyahoga No. 106043, 2018-Ohio-295; State v. Maynard, 47
Ohio App.3d 76, 547 N.E.2d 409 (6th Dist.1988); State v. Meldrum, 5th Dist. Stark No.
2001CA00289, 2002-Ohio-1859. Broderick continues that the subject condition is unlawful
because it bears no relation to those goals and infringes on his Second Amendment right to keep
and bear arms. Moreover, appeal is not an adequate remedy because an appeal will take almost
all of a year, the duration of the probation.
{¶5} These arguments are not well founded. The requisites for mandamus are well
established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent
must have a clear legal duty to perform the requested relief, and (3) there must be no adequate
remedy at law. Additionally, mandamus may not control judicial discretion, even if that discretion is grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914
(1987). Furthermore, mandamus is not a substitute for appeal. State ex rel. Daggett v.
Gessaman, 34 Ohio St.2d 55, 295 N.E.2d 659 (1973); State ex rel. Pressley v. Indus. Comm. of
Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph three of the syllabus. Thus,
mandamus does not lie to correct errors and procedural irregularities in the course of a case.
State ex rel. Jerninghan v. Gaughan, 8th Dist. Cuyahoga No. 67787, 1994 Ohio App. LEXIS
6227 (Sept. 26, 1994). Moreover, mandamus is an extraordinary remedy that is to be exercised
with caution and only when the right is clear. It should not issue in doubtful cases. State ex
rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer v. Ohio
Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel. Connole v. Cleveland
Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist.1993).
{¶6} In the present case, the conditions of probation are within the discretion of the
court and are reviewed on an abuse of discretion standard. Mahon, supra, at ¶ 6. Mandamus
does not lie for an abuse of discretion, even if the court grossly abuses its discretion. Thus,
mandamus will not issue.
{¶7} The principles governing prohibition are well established. Its requisites are (1) the
respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such
power is unauthorized by law, and (3) there is no adequate remedy at law. State ex rel. Largent
v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). Prohibition will not lie unless it clearly
appears that the court has no jurisdiction of the cause that it is attempting to adjudicate or the
court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35
N.E.2d 571 (1941), paragraph three of the syllabus. “The writ will not issue to prevent an
erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction.” State ex rel. Sparto v. Juvenile Court of Darke Cty.,
153 Ohio St. 64, 65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution
and not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common
Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940); and Reiss v. Columbus Mun. Court, 76 Ohio
Law Abs. 141, 145 N.E.2d 447 (10th Dist.1956). Nevertheless, when a court is patently and
unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is
immaterial to the issuance of a writ of prohibition. State ex rel. Tilford v. Crush, 39 Ohio St.3d
174, 529 N.E.2d 1245 (1988); and State ex rel. Csank v. Jaffe, 107 Ohio App.3d 387, 668 N.E.2d
996 (8th Dist.1995). However, absent such a patent and unambiguous lack of jurisdiction, a
court having general jurisdiction of the subject matter of an action has authority to determine its
own jurisdiction. A party challenging the court’s jurisdiction has an adequate remedy at law via
an appeal from the court’s holding that it has jurisdiction. State ex rel. Rootstown Local School
Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365
(1997). Moreover, this court has discretion in issuing the writ of prohibition. State ex rel.
Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).
{¶8} R.C. 2929.25(A)(1)(a) grants the court the power to “impose any other conditions
of release under a community control sanction that the court considers appropriate.” Thus, the
respondent judge was acting within her statutorily granted jurisdiction and power when she
imposed that condition of probation. Prohibition will not lie if the court is acting within its
jurisdiction.
{¶9} Moreover, delays and inconveniences do not render the appeal an inadequate
remedy. State ex rel. Casey Outdoor Advertising, Inc. v. Ohio Dept. of Transp., 61 Ohio St.3d
429, 575 N.E.2d 181 (1991). The court further notes that Broderick has appealed his sentence in Solon v. Broderick, 8th Dist. Cuyahoga No. 107043. Furthermore, the cases he relies upon
— Jones, Mahon, Maynard, and Meldrum — were resolved on appeal, not through an
extraordinary writ.
{¶10} Accordingly, this court grants the motion to dismiss and dismisses the
applications for writs of mandamus, prohibition and an alternative writ. Relator to pay costs.
This court directs the clerk of courts to serve all parties notice of this judgment and its date of
entry upon the journal as required by Civ.R. 58(B).
{¶11} Complaints dismissed.
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and SEAN C. GALLAGHER, J., CONCUR