[Cite as Shutway v. Talebi, 2023-Ohio-3818.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
JOHN ANTHONY SHUTWAY : : Appellant : C.A. No. 2023-CA-14 : v. : Trial Court Case No. 22 CV 0028 : KEVIN S. TALEBI, ET AL. : (Civil Appeal from Common Pleas : Court) Appellees : :
...........
OPINION
Rendered on October 20, 2023
JOHN ANTHONY SHUTWAY, Pro Se Appellant
LINDA L. WOEBER & COOPER D. BOWEN, Attorneys for Appellee Hon. Nicholas A. Selvaggio
ANGELICA M. JARMUSZ, Attorney for Appellees Kevin S. Talebi, Samantha B. Whetherholt, and Magistrate Scott Schockling
.............
EPLEY, J.
{¶ 1} John Anthony Shutway appeals from two judgments of the Champaign
County Court of Common Pleas. The first granted summary judgment to Prosecutor
Kevin S. Talebi, Magistrate Scott Schockling, and Assistant Prosecutor Samantha B. -2-
Whetherholt on his civil claims. The second granted Judge Nicholas A. Selvaggio’s
Civ.R. 12(B)(6) motion to dismiss. For the following reasons, the trial court’s judgments
will be affirmed.
I. Facts and Procedural History
{¶ 2} Shutway’s dispute with the Champaign County prosecutors and judicial
officers stems from his prosecution and conviction in Champaign C.P. No. 2018 CR 77.
In that case, a jury found Shutway guilty of one count of failure to comply with an order or
signal of a police officer and one count of obstructing official business. We affirmed
Shutway’s convictions on direct appeal. State v. Shutway, 2d Dist. Champaign No.
2018-CA-39, 2020-Ohio-5035. The Ohio Supreme Court declined to review his criminal
case.
{¶ 3} Shutway originally brought a civil action against Talebi and Judge Selvaggio
and other unnamed individuals in 2020, alleging that the prosecutor, trial judge, and their
unnamed assistants had violated his statutory and constitutional rights during his criminal
case. Shutway v. Talebi, Champaign C.P. No. 2020 CV 90. That action was voluntarily
dismissed.
{¶ 4} On March 3, 2022, Shutway re-filed his lawsuit against Talebi and Judge
Selvaggio and unnamed defendants. He sought a declaratory judgment that his
constitutional rights had been violated and asserted claims that Talebi and Judge
Selvaggio had breached their legal duties, that they were vicariously liable for breaches
by their assistants, and that they had engaged in a civil conspiracy to deny him of his
rights during the criminal case. Approximately three weeks later, Shutway filed an -3-
amended verified complaint adding Whetherholt and Magistrate Schockling as party-
defendants. Talebi and Whetherholt and, separately, Magistrate Schockling filed
answers, denying the claims and raising numerous affirmative defenses, including res
judicata and immunity.
{¶ 5} Effective March 29, 2022, Judge Linton D. Lewis, a retired judge of the Perry
County Court of Common Pleas, was assigned to preside over this case and Shutway v.
Melvin, Champaign C.P. No. 2022 CV 29, another case brought by Shutway. Judge
Lewis filed his certificate of assignment on April 11, 2022.
{¶ 6} On April 14, 2022, Judge Selvaggio moved to dismiss Shutway’s claims
against him pursuant to Civ.R. 12(B)(6). He argued that he had absolute judicial
immunity and statutory immunity for all Shutway’s claims and that Shutway failed to set
forth any viable claims. Judge Selvaggio attached several court documents to his
motion, including filings from Shutway’s criminal case and a docket sheet from Shutway’s
previously filed action against him and Talebi.
{¶ 7} A week later, Shutway filed “instructions to the clerk,” purporting to order the
clerk of courts to obtain Judge Lewis’s oath of office to sit as a visiting judge, to strike
Judge Lewis’s journal entry with his certificate of assignment, and to accept no further
filings from Judge Lewis until the oath of office was filed. In its docket, the clerk identified
Shutway’s filing as a motion. Shutway filed a similar “praecipe to the clerk” in May 2022.
{¶ 8} Shutway responded to Judge Selvaggio’s motion to dismiss by seeking leave
to amend his complaint; he stated that he construed the motion to dismiss as a motion
for a more definite statement. Judge Selvaggio opposed Shutway’s motion to amend his -4-
complaint.
{¶ 9} On May 6, 2022, Talebi, Whetherholt, and Magistrate Schockling filed a
motion for leave to file a motion for summary judgment. They argued that “[l]egal barriers
to Plaintiff’s success, such as res judicata, the ‘relation-back’ doctrine and expired statute
of limitations, absolute immunity, and the minimum pleading standard, entitle the County
Defendants to judgment as a matter of law.” Contemporaneously with this motion, all
defendants moved for a stay of discovery until dispositive motions were resolved.
{¶ 10} On June 23, 2022, Shutway filed an “objection” to Judge Lewis’s making
entries in this case.
{¶ 11} Four days later, the trial court granted the motion for leave to file the
summary judgment motion and the motion to stay discovery. Shutway was ordered to
file a summary judgment response by July 25, 2022, which he did. The trial court also
denied Shutway’s motion to amend his complaint and ordered him to respond to the
motion to dismiss within 14 days. Shutway filed his response on July 11, 2022, along
with another “objection” to Judge Lewis’s presiding over the case. On July 19, 2022, the
trial court summarily overruled Shutway’s objection.
{¶ 12} On August 4, 2022, Shutway filed an affidavit of disqualification with the
Ohio Supreme Court, seeking to disqualify Judge Lewis from this case and his separate
case against Matthew Melvin. As summarized by the supreme court, Shutway alleged
that Judge Lewis had “failed to comply with the Ohio Constitution, the Ohio Revised Code,
and this court’s guidelines for the assignment of judges – apparently because Judge
Lewis has not filed a copy of an oath of office in the underlying cases.” Eleven days -5-
later, the Ohio Supreme Court rejected Shutway’s request for disqualification and allowed
the cases to proceed before Judge Lewis. Despite the Ohio Supreme Court’s
determination, on October 6, 2022, Shutway again filed an objection to Judge Lewis’s
making entries in the case and demanded that the judge’s prior entries be stricken.
{¶ 13} The following day, the trial court granted Talebi, Whetherholt, and
Schockling’s motion for summary judgment. It concluded that (1) the claims against
Whetherholt and Schockling were filed outside of the statute of the limitations and were,
thus, time-barred, (2) Talebi, Whetherholt, and Schockling were entitled to absolute
immunity, (3) speedy relief was not necessary to preserve Shutway’s rights and thus he
was not entitled to declaratory relief, (4) Shutway did not set forth a claim for civil
conspiracy, and (5) vicarious liability did not apply because Shutway did not properly
allege an underlying tort. The trial court identified its judgment as a final appealable
order, although it did not include Civ.R. 54(B) certification.
{¶ 14} On October 13, 2022, the trial judge expressly overruled Shutway’s most
recent objection to his presiding in the case. The judge attached a copy of his assigned
retired judge oath of office, which was certified on September 15, 2022.
{¶ 15} The trial court also granted Judge Selvaggio’s motion to dismiss and denied
Shutway’s motion to amend his complaint. It reasoned that Judge Selvaggio had
absolute judicial immunity for his actions while presiding over Shutway’s criminal case
and that he was entitled to statutory immunity under R.C. 2744.03(A)(1). The court
further stated that a declaratory judgment action was not the proper vehicle for
challenging a judge’s determinations made in his official capacity. The court noted that -6-
Shutway had not provided specifics for his civil conspiracy, civil tort, and vicarious liability
claims and that no private right of action existed for constitutional violations. In addition,
the court found that no vicarious liability was possible where no underlying tort was pled.
The court also designated this decision as a final appealable order but did not include
Civ.R. 54(B) certification.
{¶ 16} Shutway promptly appealed the trial court’s rulings on the motions to
dismiss and for summary judgment. Shutway v. Talebi, 2d Dist. Champaign Nos. 2022-
CA-25 and 2022-CA-26. We dismissed both appeals for lack of a final appealable order,
because Shutway’s claims against the unnamed defendants had not been resolved.
{¶ 17} Shutway did not thereafter seek Civ.R. 54(B) certification from the trial court,
nor did he request leave to amend his complaint to identify the unnamed defendants. No
new amended complaint was filed. However, on March 2, 2023, three documents titled
“return of service of summon on complaint” were filed, indicating that an amended
complaint had been served on three new individuals. Talebi, Whetherholt, and
Schockling moved to strike the documents. On March 31, 2023, before the motion to
strike was resolved, Shutway again appealed from the trial court’s summary judgment
and dismissal judgments.
{¶ 18} Shutway raises four assignments of error on appeal. Notably, he does not
challenge the merits of the trial court’s summary judgment and dismissal decisions.
Rather, his arguments revolve around alleged procedural irregularities in the assignment
of Judge Lewis to this case. We will address Shutway’s claims in a manner that
facilitates our analysis. -7-
II. Jurisdiction
{¶ 19} As an initial matter, Talebi, Whetherholt, and Magistrate Schockling assert
that this appeal must be dismissed due to untimeliness and for lack of jurisdiction.
A. Timeliness
{¶ 20} We first address whether Shutway’s appeal was timely filed. The answer
turns on when the underlying judgments became final and appealable.
{¶ 21} “The general rules regarding final appealable orders in multiparty and/or
multiclaim cases involve the tandem of R.C. 2505.02(B) for substance and Civ.R. 54(B)
for procedure. A court first applies R.C. 2505.02(B) to determine whether the order
‘affects a substantial right and whether it in effect determines an action and prevents a
judgment.’ If the court of appeals determines that the trial court order is final under R.C.
2505.02, the next step is to determine whether the trial court certified the order with the
language of Civ.R. 54(B) – ‘there is no just reason for delay.’ The use of Civ.R. 54(B)
certification by a trial court is discretionary.” (Citations omitted.) Sullivan v. Anderson
Twp., 122 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d 88, ¶ 10; Townsend v. Kettering,
2022-Ohio-2710, 194 N.E.3d 457, ¶ 11 (2d Dist.).
{¶ 22} “It is axiomatic that an appellate court has jurisdiction to review only final
orders or judgments of the lower courts in its district. Section 3(B)(2), Article IV, Ohio
Constitution; R.C. 2505.02. We have no jurisdiction to review an order or judgment that
is not final, and an appeal therefrom must be dismissed.” Nored v. Dayton City School
Dist. Bd. of Edn., 2019-Ohio-1476, 129 N.E.3d 503, ¶ 3 (2d Dist.), citing Gen. Acc. Ins.
Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). -8-
{¶ 23} Shutway first filed a notice of appeal from the October 7, 2022 summary
judgment decision on November 4, 2022. Shutway v. Talebi, 2d Dist. Champaign No.
2022-CA-25. He separately appealed the trial court’s dismissal judgment on November
14, 2022. Shutway v. Talebi, 2d Dist. Champaign No. 2022-CA-26.
{¶ 24} In both appellate cases, we ordered Shutway to show cause why the appeal
should not be dismissed for lack of a final appealable order. We noted that the amended
complaint included claims against unnamed defendants, which had not been resolved,
and the trial court had not provided Civ.R. 54(B) certification. We continued: “[W]here a
civil action includes claims against John Doe defendants as to which the one-year period
for service has not expired, and the plaintiff has not expressly abandoned those claims,
a judgment in favor of other defendants that does not include a certification pursuant to
Civ.R. 54(B) is not a final appealable order.” See Nored at ¶ 7.
{¶ 25} Shutway did not respond to the show cause order in Case No. 2022-CA-25,
and we dismissed the appeal for lack of jurisdiction. Decision & Final Judgment Entry
(Dec. 19, 2022). He did respond to our show cause order in Case No. 2022-CA-26, but
we nevertheless concluded that our show cause order was not satisfied. We also
dismissed that appeal for lack of a final appealable order. Decision & Final Judgment
Entry (Dec. 20, 2022). Shutway did not thereafter seek Civ.R. 54(B) certification from
the trial court. Rather, he waited until March 31, 2023 – a year and three days following
the filing of his amended complaint – to file the instant appeal of both the summary
judgment and dismissal judgments.
{¶ 26} Talebi, Whetherholt, and Schockling state that Shutway arguably -9-
abandoned his claims against the unnamed defendants. We have no basis to reach that
conclusion. Shutway’s March 28, 2022 amended complaint included claims against
unnamed prosecutor’s assistants and judicial assistants, and he had one year in which to
name them. There is no suggestion in the record that he abandoned those claims.
Rather, his ability to pursue those claims was foreclosed when the one-year period
expired. Werner Properties, Inc. v. Gasearch, LLC, 2023-Ohio-1049, 214 N.E.3d 612,
¶ 18 (8th Dist.) (“when the one-year period for naming and serving John Doe defendants
has expired, a judgment rendered as to other defendants may be considered final and
appealable because the action never commenced against the John Doe defendants”).
At that juncture, the trial court’s previously interlocutory rulings against Talebi,
Whetherholt, Magistrate Schockling, and Judge Selvaggio became final. See Nored.
{¶ 27} Shutway filed his notice of appeal within 30 days of the date when the trial
court’s judgments became final. Accordingly, we conclude that his appeal is timely.
B. Jurisdiction
{¶ 28} Next, we consider whether this appellate court has “jurisdiction” over
Shutway’s appeal of matters related to Judge Lewis’s assignment as a retired visiting
judge. Talebi, Whetherholt, and Magistrate Schockling argue that this appeal must be
dismissed because we cannot review the Ohio Supreme Court’s appointment of a visiting
judge, the Ohio Supreme Court has already addressed the issues Shutway raises,
Shutway cannot enforce the authorities that he cites, and his claims have no merit.
{¶ 29} “The general term ‘jurisdiction’ can be used to connote several distinct
concepts, including jurisdiction over the subject matter, jurisdiction over the person, and -10-
jurisdiction over a particular case.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75,
2014-Ohio-4275, 21 N.E.3d 1040, ¶ 18, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-
Ohio-1980, 806 N.E.2d 992, ¶ 11-12. “Subject-matter jurisdiction refers to the
constitutional or statutory power of a court to adjudicate a particular class or type of case.”
Corder v. Ohio Edison Co., 162 Ohio St.3d 639, 2020-Ohio-5220, 166 N.E.3d 1180, ¶ 14.
“A court’s subject-matter jurisdiction is determined without regard to the rights of the
individual parties involved in a particular case.” Kuchta at ¶ 19. Instead, “the focus is
on whether the forum itself is competent to hear the controversy.” Corder at ¶ 14, quoting
State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 23.
{¶ 30} In contrast, “a court’s jurisdiction over a particular case refers to the court’s
authority to proceed or rule on a case that is within the court’s subject-matter jurisdiction.”
Kuchta at ¶ 19. This involves consideration of the rights of the parties. Id. When a
court has subject-matter jurisdiction, any error in the exercise of jurisdiction over the case
causes a judgment to be voidable rather than void. Id.
{¶ 31} In this case, Shutway has appealed the trial court’s dismissal of his claims
against Judge Selvaggio and its grant of summary judgment to Talebi, Whetherholt, and
Magistrate Schockling in a civil action. This appellate court has subject matter
jurisdiction over appeals from civil actions brought in the Champaign County Court of
Common Pleas. Ohio Constitution, Article IV, Section 3; R.C. 2501.02(C).
{¶ 32} Talebi, Whetherholt, and Magistrate Schockling assert, however, that the
Ohio Supreme Court’s ruling on Shutway’s affidavit of disqualification divests us of
jurisdiction to address Shutway’s claims. While the supreme court’s ruling on Shutway’s -11-
affidavit of disqualification may govern our resolution of the issues Shutway raises, we
disagree that it deprives us of jurisdiction over this appeal.
{¶ 33} Whether an assigned judge has authority to preside over a case generally
may be raised on direct appeal. State ex rel. Smith v. Triggs, Ohio Slip Opinion No.
2023-Ohio-3098, __ N.E.3d. __, ¶ 7 (“Smith could have raised any issue regarding the
transfer of his criminal case from Judge Ruehlman to Judge Schweikert in a direct appeal,
which constitutes an adequate remedy in the ordinary course of the law.”); State ex rel.
Key v. Spicer, 91 Ohio St.3d 469, 470, 746 N.E.2d 1119 (2001) (“[A] claim of improper
assignment of a judge can generally be adequately raised by way of appeal.”); State ex
rel. Harris v. Turner, 160 Ohio St.3d 506, 2020-Ohio-2901, 159 N.E.3d 1121, ¶ 13; see
also In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, ¶ 8.
{¶ 34} Talebi, Whetherholt, and Magistrate Schockling cite Lloyd v. Thornsbery,
11th Dist. Portage No. 2019-P-0080, 2021-Ohio-239, to support their contention that we
lack jurisdiction to review a visiting judge’s assignment. However, the Eleventh District
relied on the law of the case doctrine articulated in Nolan v. Nolan, 11 Ohio St.3d 1, 462
N.E.2d 410 (1984). Lloyd at ¶ 11. The law of the case doctrine functions to compel
inferior courts to follow the mandates of reviewing courts. State v. W.T.D., 2d Dist.
Montgomery No. 29238, 2022-Ohio-632, ¶ 18, citing Nolan at 3. It provides that “the
decision of a reviewing court in a case remains the law of that case on the legal questions
involved for all subsequent proceedings in the case at both the trial and reviewing levels.”
Nolan at 3. Therefore, “[a]bsent extraordinary circumstances, such as an intervening
decision by the Supreme Court, an inferior court has no discretion to disregard the -12-
mandate of a superior court in a prior appeal in the same case.” Id. at syllabus. The
law of the case doctrine does not deprive the inferior court of jurisdiction to address the
claim, such that the case must be dismissed.
{¶ 35} Finally, we note that “the issue before the chief justice in disqualification
proceedings is a narrow one.” In re Disqualification of Burge, 142 Ohio St. 3d 57, 2014-
Ohio-5871, 28 N.E.3d 48, ¶ 4. “The constitutional and statutory responsibility of the Chief
Justice in ruling on an affidavit of disqualification is limited to determining whether a judge
in a pending case has a bias, prejudice, or other disqualifying interest that mandates the
judge’s disqualification from that case.” In re Disqualification of Kate, 88 Ohio St.3d
1208, 1209-1210, 723 N.E.2d 1098 (1999), citing Ohio Constitution, Art. IV, Section 5(C),
and R.C. 2701.03.
{¶ 36} Consistent with that limitation, we have previously held that “the
disqualification of a judge of a court of common pleas for bias and prejudice is confided
to the sole determination of the Chief Justice of the Supreme Court of Ohio, or a justice
of the Ohio Supreme Court designated by the Chief Justice to perform that function.”
E.g., Hanselman v. Hanselman, 2d Dist. Montgomery No. 21615, 2007-Ohio-183, ¶ 92.
We have further commented, however, that while we lack authority to determine whether
a trial court judge should be disqualified for bias or should recuse himself, “[s]ome courts
have recognized a distinction * * * where the question is not prospective disqualification
or recusal but whether the judge’s conduct during trial deprived the defendant of his due
process rights.” State v. Evans, 2d Dist. Montgomery No. 27178, 2017-Ohio-8184, ¶ 10,
fn.3, citing State v. Payne, 149 Ohio App.3d 368, 2002-Ohio-5180, 777 N.E.2d 333, ¶ 11 -13-
(7th Dist.); Dibert v. Carpenter, 2018-Ohio-1054, 98 N.E.3d 350, ¶ 72.
{¶ 37} With these principles in mind, we reject Talebi, Whetherholt, and
Schockling’s argument that we must dismiss this appeal due to the supreme court’s ruling
on Shutway’s affidavit of disqualification.
{¶ 38} Talebi, Whetherholt, and Schockling further argue that Shutway has no right
to enforce the authority he cites, namely the Rules of Superintendence for the Courts of
Ohio, the Supreme Court of Ohio Guidelines for Assignment of Judges, the Local Rules
of the Champaign County Court of Common Pleas, and the Ohio Constitution. Whether
Shutway can enforce these rules goes to the merits of his assignments of error, not this
appellate court’s jurisdiction over the appeal. Similarly, Talebi, Whetherholt, and
Schockling’s argument that Shutway “has not presented a reversible error” raises
questions regarding the merits of his claims, not this court’s jurisdiction to address them.
Accordingly, we reject Talebi, Whetherholt, and Magistrate Schockling’s assertion that
this appeal must be dismissed for lack of jurisdiction.
III. Judge Lewis’s Assignment as Visiting Judge
{¶ 39} Shutway’s first, second, and third assignments of error are each grounded
in his belief that Judge Lewis was not properly assigned as a retired visiting judge to
preside over his case. First, he raises that Judge Selvaggio, as administrative judge,
erred by failing to follow court guidelines for the appointment of a visiting judge, including
requirements regarding the filing of the certificate of assignment, and violated
constitutional provisions requiring an oath of office for appointed judges. Second,
Shutway claims that Judge Lewis erred and committed a fraud on the court by exercising -14-
judicial duties before taking an oath of office for his assignment. Third, Shutway argues
that the clerk of courts committed plain error by accepting entries from Judge Lewis
without first receiving his oath of office and an original certificate of assignment from the
administrative judge. Shutway’s fourth assignment of error claims that the clerk of courts
further erred by failing to file Shutway’s “praecipes” as praecipes.
A. Effect of Affidavit of Disqualification
{¶ 40} We begin with the fact that Shutway filed an affidavit of disqualification
against Judge Lewis with the Supreme Court of Ohio. In his affidavit, Shutway raised
the same alleged procedural deficiencies with Judge Lewis’s assignment, including the
absence of the original certificate of assignment in the court’s miscellaneous docket, the
administrative judge’s failure to file Judge Lewis’s assignment, Judge Lewis’s failure to
file a copy of his oath of office for this appointment, the fact that Judge Lewis no longer
lives in Perry County, and Judge Lewis’s failure to correct the filing of his praecipes as
“motions.” Shutway sought Judge Lewis’s disqualification due to these alleged
procedural errors.
{¶ 41} In denying the affidavit of disqualification, the supreme court concluded that
Shutway had not established prejudice or bias on Judge Lewis’s part. It reasoned:
Mr. Shutway has not established that Judge Lewis has hostile feelings
toward him or that the judge has formed a fixed anticipatory judgment on
any issue in the underlying cases. Nor has Mr. Shutway set forth a
compelling argument for disqualifying Judge Lewis to avoid an appearance
of partiality. Although an improper assignment may be evidence of an -15-
appearance of impropriety warranting a judge’s disqualification, Mr.
Shutway has failed to establish that there were any improprieties relating to
Judge Lewis’s assignment to the underlying cases. As the documents
submitted with Mr. Shutway’s affidavits indicate, Mr. Shutway was
previously advised that the implementation of an oath requirement for
retired assigned judges has been delayed. Nothing about the assignment
process here suggests that Judge Lewis would be unable to fairly and
impartially preside over the underlying matters.
(Citation omitted.)
{¶ 42} Although the focus of the Ohio Supreme Court’s review was for prejudice or
bias, the supreme court expressly found that Shutway had not established improprieties
related to Judge Lewis’s assignment, and it permitted Judge Lewis to continue to preside
over the case. Shutway claims the same procedural irregularities in Judge Lewis’s
appointment here. Consequently, under the law of the case doctrine, we must follow the
supreme court’s determination. And even assuming that we could consider Shutway’s
arguments anew, we conclude that no reversible error exists.
B. Certificate of Assignment
{¶ 43} Under Ohio’s Rules of Superintendence, the administrative judge of a trial
court has the authority to assign cases to individual judges of the court, Sup.R. 4.01(C),
and to request the assignment of a judge by the Chief Justice of the Ohio Supreme Court,
Sup.R. 4.01(H), Sup.R. 36.019(B). The local rules of the Champaign County Court of
Common Pleas states that the administrative judge of the General Division “shall seek -16-
temporary assignments of judges whenever the Administrative Judge deems such
assignment is required.” Champaign G.D.L.R. 1.8(A). Under Section 2.06 of the Ohio
Supreme Court’s Guidelines for Assignment of Judges, the request for an assigned judge
must be submitted by electronic means via the Ohio Supreme Court’s website.
{¶ 44} In this case, the “judge assignment” portion of the Ohio Supreme Court
website substantiates that Judge Selvaggio requested the assignment of a visiting judge
for the Champaign County Court of Common Pleas, General Division, in Case No. 2022
CV 28, Shutway v.Talebi. Judge Lewis, a retired judge, was assigned by then-Chief
Justice Maureen O’Connor as the visiting judge, effective March 29, 2022. Assignment
No. 22JA0641. It is well established that the Chief Justice may assign any voluntarily
retired judge to active duty as a judge. Ohio Constitution, Art. IV, Section 6(C).
{¶ 45} The supreme court’s Guidelines indicate that the administrative judge
requesting the assignment “shall direct the original certificate of assignment be filed with
the clerk of the court to which the assigned judge has been assigned and included as part
of the record in the case.” Section 5.01(A). We have noted, however, that the
Guidelines have not been adopted as rules and are not binding on Ohio courts. PNC
Mtge. v. Guenther, 2d Dist. Montgomery No. 25385, 2013-Ohio-3044, ¶ 22, fn. 3, citing
Forsyth v. Feinstein, 2d Dist. Clark No. 1999-CA-66, 2000 WL 192298, *2 (Feb. 18, 2000)
and Ward v. NationsBanc Mtge. Corp., 6th Dist. Erie No. E-05-040, 2006-Ohio-2766,
¶ 22; see also Lloyd, 11th Dist. Portage No. 2019-P-0080, 2021-Ohio-239, at ¶ 10.
Moreover, we have recognized the validity of the assignment even when the certificate of
assignment was not filed. Id.; see also Marino v. Oriana House, Inc., 9th Dist. Summit -17-
No. 23389, 2007-Ohio-1823, ¶ 9.
{¶ 46} Here, Judge Selvaggio, the administrative judge, had recused himself from
the case, and Judge Lewis directed that his certificate of assignment be filed in this case.
The certificate of assignment was filed on April 11, 2022. The certificate establishes that
Judge Lewis had the authority to handle any proceedings in the trial court for the
assignment period. Guenther at ¶ 22. We find no error in Judge Lewis’s ordering that
his certificate of assignment be filed.
C. Oath of Office
{¶ 47} Shutway further asserts that Judge Lewis should not have taken any action
in this case, nor should the clerk of courts have accepted any of Judge Lewis’s filings,
until Judge Lewis took an oath of office. He further faults Judge Selvaggio for failing to
administer the oath of office to Judge Lewis.
{¶ 48} Shutway asserts that the Ohio and federal constitutions require public
officials to take an oath of office. Of relevance here, Article XV, Section 7 of the Ohio
Constitution states: “Every person chosen or appointed to any office under this state,
before entering upon the discharge of its duties, shall take an oath or affirmation, to
support the constitution of the United States, and of this state, and also an oath of office.”
{¶ 49} R.C. 3.23 sets forth the oath of office for judges and requires each judge to
take the oath “on or before the first day of the judge’s official term.” The statute further
addresses what the certificate of oath must contain, as well as when and to whom it must
be transmitted.
{¶ 50} However, neither Article XV, Section 7 of the Ohio Constitution nor R.C. -18-
3.23 requires an additional oath of office to be administered upon assignment as a retired
judge. State ex rel. Evans v. Shoemaker, 10th Dist. Franklin No. 02AP-671, 2003-Ohio-
757, ¶ 13, quoting Evans v. Supreme Court of Ohio, 119 Ohio Misc.2d 34, 2002-Ohio-
3518, 773 N.E.2d 621, ¶ 27. As stated by the Tenth District: “[W]hen a retired judge is
assigned to active duty, that judge is resuming the duties in that office. The judge’s
original oath of office satisfies the requirement that a judge take an oath of office before
entering upon the discharge of his duties.” Id. at ¶ 14.
{¶ 51} Shutway’s exhibits attached to his affidavit of disqualification included
emails between Shutway and the Ohio Supreme Court’s chief legal counsel. Counsel
indicated that a requirement that retired assigned judges take a one-time oath of office
was not yet in effect. The Ohio Supreme Court’s judgment entry regarding Shutway’s
affidavit of disqualification further noted that “the implementation of an oath requirement
for retired assigned judges has been delayed.” We find no support for Shutway’s
assertion that Judge Lewis was required to take an oath of office when he was assigned
to this case. We note that Judge Lewis took a retired assigned judge oath of office on
September 15, 2022, prior to his rulings on the defendants’ dispositive motions.
{¶ 52} Even if an oath requirement existed for assigned retired judges, Shutway
provides no authority for his contention that Judge Selvaggio, who had recused himself
from the case, had the responsibility to administer the oath of office to Judge Lewis. We
find no error in Judge Selvaggio’s handling of the matter.
D. Filings with the Clerk of Courts
{¶ 53} Finally, Shutway contends that the clerk of courts erred by improperly -19-
labeling his praecipes on the court’s docket; those “praecipes” sought to order the clerk
to obtain a copy of Judge Lewis’s oath of office, to remove Judge Lewis’s existing entries
from the docket, and to not accept future submissions from Judge Lewis. Even if the
clerk should have labeled Shutway’s filings differently on the docket, we find no prejudicial
error. Shutway had no authority to order the clerk of courts to reject filings from Judge
Lewis or to strike any of Judge Lewis’s filings.
{¶ 54} Moreover, the clerk of courts lacked the discretion to reject documents from
Judge Lewis for filing. “The clerk, as a ministerial officer of the court, has a duty by law
to accept and file documents tendered to him or her.” State ex rel. Montgomery Cty.
Pub. Defender v. Siroki, 108 Ohio St.3d 334, 2006-Ohio-1065, 843 N.E.2d 778, ¶ 10,
quoting Rhoades v. Harris, 135 Ohio App.3d 555, 557, 735 N.E.2d 6 (1st Dist.1999). The
clerk of courts is authorized to refuse to accept for filing only documents submitted for
filing by a vexatious litigator who has failed to obtain leave to proceed under R.C. 2323.52.
Id. at ¶ 10, citing R.C. 1907.20.
{¶ 55} Shutway’s assignments of error are overruled.
IV. Conclusion
{¶ 56} The trial court’s judgments will be affirmed.
TUCKER, J. and HUFFMAN, J., concur.