State, Ex Rel. Doe v. Tracy

555 N.E.2d 674, 51 Ohio App. 3d 198, 1988 Ohio App. LEXIS 2990
CourtOhio Court of Appeals
DecidedJuly 25, 1988
DocketCA88-03-021, CA88-03-022 and CA88-03-023
StatusPublished
Cited by39 cases

This text of 555 N.E.2d 674 (State, Ex Rel. Doe v. Tracy) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State, Ex Rel. Doe v. Tracy, 555 N.E.2d 674, 51 Ohio App. 3d 198, 1988 Ohio App. LEXIS 2990 (Ohio Ct. App. 1988).

Opinion

Per Curiam.

Plaintiff-relator, John Doe, an unnamed juvenile, has initiated original actions in procedendo, mandamus and prohibition against defendant-respondent, Honorable John B. Tracy, Judge of the Warren County Court of Common Pleas, Juvenile Division. In order to facilitate discussion of the issues involved, the three actions have been consolidated for review.

On December 16,1987, three complaints were filed in the Warren County Court of Common Pleas, Juvenile Division, alleging relator to be a delinquent child by reason of having committed acts which, had such acts been committed by an adult, would constitute the crimes of murder, arson, and obstructing justice. In each of the three cases, the state of Ohio requested that respondent relinquish jurisdiction so that relator could be tried as an adult. A preliminary hearing was held and respondent found probable cause to believe that relator committed the acts alleged and that such acts would constitute felonies if committed by an adult. Respondent ordered that relator be held in detention pending adjudication or further proceedings for relinquishment of jurisdiction.

On January 11, 1988, respondent ordered a mental examination of relator pursuant to Juv. R. 30(B). Dr. Russell W. Dern conducted the examination and submitted his report to respondent on February 5, 1988. The state then moved for a second mental examination by a psychologist of the state’s choosing. A hearing was had on this motion on February 22, 1988, and relator indicated that he wished to waive the second mental examination pursuant to R.C. 2151.26(C) and Juv. R. 30(F). Respondent refused to accept relator’s waiver, granted the state’s motion, and ordered a second mental examination.

On February 23,1988, relator was transported to the Butler County Center for Forensic Psychiatry, but he refused to answer any questions upon the advice of counsel. On March 9, 1988, relator was found in contempt for his refusal to submit to the second mental examination and respondent ordered that further hearings on the motion to relinquish jurisdiction be continued indefinitely until relator purged himself of the contempt. Relator then filed the instant actions in pro-cedendo, mandamus and prohibition. Respondent answered and moved to dismiss all three actions.

Procedendo, mandamus and prohibition are all high prerogative writs of an extraordinary nature. State, ex rel. Ratliff, v. Marshall (1972), 30 Ohio St. 2d 101, 59 O.O. 2d 114, 282 N.E. 2d 582 (procedendo); State, ex rel. Brown, v. Bd. of Cty. Commrs. (1970), 21 Ohio St. 2d 62, 50 O.O. 2d 159, 255 N.E. 2d 244 (mandamus); State, ex rel. Harris, v. Common Pleas Court (1970), 25 Ohio App. 2d 78, 54 O.O. 2d 115, 266 N.E. 2d 589 (prohibition). Therefore, before any such writ may issue, it must be clear that the party applying for relief has no adequate remedy in the ordinary course of the law. Id. In each of the three actions at bar, respondent contends that relator has an adequate remedy at law by way of an appeal of the contempt citation.

In Cooper v. Cooper (1984), 14 Ohio App. 3d 327, 14 OBR 394, 471 N.E. 2d 525, the Cuyahoga County Court of Appeals dismissed an appeal from a finding of contempt and held as follows:

“ ‘Contempt of court consists of two elements. The first is a finding of contempt of court and the second is the imposition of a penalty or sanction, such as a jail sentence or fine. Until both a finding of contempt is made and *200 a penalty imposed by the court, there is not a final order. The mere adjudication of contempt is not final until a sanction is imposed.’ ” Id. at 328-329, 14 OBR at 395, 471 N.E. 2d at 526, quoting Chain Bike v. Spoke ’N Wheel, Inc. (1979), 64 Ohio App. 2d 62, 64, 18 O.O. 3d 43, 44, 410 N.E. 2d 802, 803.

Here, respondent found relator in contempt of court for refusing to comply with the second mental examination. However, respondent did not impose any specific penalty or sanction. Instead, respondent continued the proceedings indefinitely until relator purged himself of the contempt. Since no penalty or sanction, such as a sentence or fine, was imposed, the adjudication of contempt never became a final order from which relator could appeal. Cooper, supra; R.C. 2505.02. Accordingly, relator has no remedy at law by way of an appeal, and his applications for extraordinary relief are properly before this court.

I

In Warren App. No. CA88-03-021, relator seeks a writ of procedendo. A writ of procedendo is an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment in a case before it. State, ex rel. Ratliff, supra. The writ will not lie, however, to control or interfere with the inferior court’s normal procedures or its determination as to what that judgment should be. State, ex rel. Utley, v. Abruzzo (1985), 17 Ohio St. 3d 203, 17 OBR 439, 478 N.E. 2d 789; State, ex rel. St. Sava Serbian Orthodox Church of Cleveland, v. Riley (1973), 36 Ohio St. 2d 171, 65 O.O. 2d 395, 305 N.E. 2d 808. The writ is proper where a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment. State, ex rel. Wallace, v. Tyack (1984), 13 Ohio St. 3d 4, 13 OBR 379, 469 N.E. 2d 844; State, ex rel. Jacobs, v. Municipal Court (1971), 26 Ohio App. 2d 113, 55 O.O. 2d 245, 269 N.E. 2d 629, affirmed (1972), 30 Ohio St. 2d 239, 59 O.O. 2d 298, 284 N.E. 2d 584. Thus, where an inferior court has improperly continued proceedings before it, and thereby delayed final judgment, a superior court may, by writ of pro-cedendo, order the inferior court to dissolve the continuance and proceed to final judgment. See State, ex rel. Wallace, supra; State, ex rel. Davey, v. Owen (1937), 133 Ohio St. 96, 10 O.O. 102, 12 N.E. 2d 144.

In the case at bar, relator contends that the contempt citation and the resulting continuance were improper because such actions infringe upon his statutory right to waive the mental examination and his constitutional right to remain silent. Relator’s statutory claim is based upon R.C. 2151.26, 1 which reads in pertinent part:

“(A)(1) Except as provided in division (A)(2) of this section, after a complaint has been filed alleging that a child is delinquent by reason of having committed an act that would constitute a felony if committed by an adult, the court at a hearing may transfer the case for criminal prosecution to the appropriate court having jurisdiction of the offense, after making the following determinations:
‘ ‘(a) The child was fifteen or more years of age at the time of the conduct charged;
“(b) There is probable cause to believe that the child committed the act alleged;

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Bluebook (online)
555 N.E.2d 674, 51 Ohio App. 3d 198, 1988 Ohio App. LEXIS 2990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-doe-v-tracy-ohioctapp-1988.