State ex rel. Cunningham v. Pittman

2023 Ohio 4094

• Court: Ohio Court of Appeals
• Decided: November 13, 2023
• Docket: 2023-P-0060
• Status: Published

Opinion

[Cite as State ex rel. Cunningham v. Pittman, 2023-Ohio-4094.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO ex rel. CASE NO. 2023-P-0060 PAUL CUNNINGHAM, et al.,

Relators, Original Action for Writ of Prohibition

- vs -

THE HONORABLE LAURIE J. PITTMAN,

Respondent.

PER CURIAM OPINION

Decided: November 13, 2023 Judgment: Petition dismissed

Jeff R. Laybourne, Donald J. Malarcik, and Daniel D. Eisenbrei, Malarcik, Pierce, Munyer & Will, 121 South Main Street, Suite 520, Akron, OH 44308 (For Relators).

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).

PER CURIAM.

{¶1} On August 10, 2023, relators, Paul, Nancy, and Erik Cunningham,

commenced this original action by filing a “Complaint for Writ of Prohibition” against

Respondent, the Honorable Laurie J. Pittman.

{¶2} The complaint alleged that the trial court scheduled a jury trial in Erik

Cunningham’s criminal case in the Portage County Court of Common Pleas, case number

2019CR00022. Relators argued that respondent was without jurisdiction to schedule trial because Paul and Nancy had appealed to this Court after the respondent denied their

motion to intervene in the criminal case.

{¶3} At the time of relators’ filing, Paul and Nancy Cunningham’s appeal was still

pending. However, on September 18, 2023, this Court issued an opinion dismissing Paul

and Nancy Cunningham’s appeal in State v. Cunningham, 11th Dist. Portage No. 2021-

P-0049, 2023-Ohio-3300. Over dissent, that opinion held that Paul and Nancy

Cunninham’s cell phone data “remains under seal and is thus protected from publication.

No one, outside of those who have already viewed the data pursuant to the search

warrant, is permitted to know what is on the Cunninghams’ phones. Those few who have

reviewed the data cannot disclose the information to anyone—not even to the

prosecutor—without an additional court order. This change in circumstances creates an

issue of ripeness.” Id. at ¶ 14. Thus, the majority held that Paul and Nancy Cunningham’s

motion to intervene was not ripe because the State’s access to the data was a contingent

event that may never occur. Id. at ¶ 16.

{¶4} On September 22, 2023, we ordered relators to show cause as to why their

complaint for writ of prohibition was not moot due to the release of our opinion. Relators

filed their responses to this Court’s show cause order and also filed a motion to stay all

trial court proceedings. Relators argue that Paul and Nancy’s cell phone data will be

unsealed upon the resolution of the underlying criminal case. Respondent opposed these

motions and relators replied.

{¶5} On September 27, 2023, Paul and Nancy Cunningham filed an Application

for Reconsideration of this Court’s September 18 opinion dismissing their appeal.

Case No. 2023-P-0060 {¶6} On October 26, 2023, this Court denied Paul and Nancy Cunningham’s

Application for Reconsideration, again over dissent.

Law and Analysis

{¶7} Sua sponte dismissal of a complaint for writ of prohibition is warranted if the

complaint is frivolous or the relator obviously cannot prevail on the facts alleged in the

complaint. State ex rel. Jones v. Garfield Hts. Mun. Court, 77 Ohio St.3d 447, 448, 674

N.E.2d 1381 (1997).

{¶8} “A writ of prohibition is an extraordinary judicial writ issuing out of a court of

superior jurisdiction and directed to an inferior tribunal commanding it to cease abusing

or usurping judicial functions.” State ex rel. Jones v. Paschke, 11th Dist. Geauga No.

2021-G-0013, 2021-Ohio-2889, ¶ 11, citing State ex rel. Tubbs Jones v. Suster, 84 Ohio

St.3d 70, 73, 701 N.E.2d 1002 (1998). “The purpose of a writ of prohibition is to restrain

inferior courts and tribunals from exceeding their jurisdiction.” Id. A writ of prohibition is

an extraordinary remedy and therefore to be granted with caution and restraint and only

in cases of necessity arising from the inadequacy of other remedies. Id.

{¶9} To be entitled to a writ of prohibition, a relator must establish that (1) the

respondent is about to exercise judicial or quasi-judicial power, (2) the exercise of that

power is unauthorized by law, and (3) denying the writ would result in injury for which no

other adequate remedy exists in the ordinary course of law. State ex rel. Bell v. Pfeiffer,

131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 18.

{¶10} When relators filed this writ of prohibition, this Court had not yet released

its opinion dismissing Paul and Nancy Cunningham’s appeal as unripe. However, that

Case No. 2023-P-0060 opinion has now been released and reconsideration denied. The trial court’s scheduling

of a trial date does not alter the clear holding in that case that the State’s access to the

data was a contingent event that may never occur.

{¶11} Further, relators’ argument that Paul and Nancy’s cell phone data will be

released upon the conclusion of Erik’s criminal case is unavailing. The trial has not yet

started and there is no indication that respondent has exercised or is about to exercise

judicial power to release the cell phone data.

{¶12} Accordingly, relators’ “Complaint for Writ of Prohibition” is dismissed. Any

pending motions are hereby overruled as moot.

JOHN J. EKLUND, P.J., MARY JANE TRAPP, J., EUGENE A. LUCCI, J., concur.

Case No. 2023-P-0060