[Cite as State ex rel. Ervin v. Barker, 2013-Ohio-376.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98704
STATE, EX REL. LEVERT ERVIN RELATOR
vs.
JUDGE PAMELA BARKER RESPONDENT
JUDGMENT: WRIT DISMISSED
Writ of Mandamus Motion Nos. 457438 and 458454 Order No. 461949
RELEASE DATE: February 4, 2013 RELATOR
Levert Ervin No. 420633 Grafton Correctional Institution 2500 South Avon-Belden Road Grafton, Ohio 44044
ATTORNEYS FOR RESPONDENTS
Timothy J. McGinty Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:
{¶1} On July 24, 2012, the relator, Levert Ervin, commenced this mandamus
action against the respondent, Judge Pamela Barker, to compel the judge to vacate an
order of the acting administrative judge allowing the taking of a testimonial deposition
during trial in the underlying case, State v. Ervin, Cuyahoga C. P. No. CR-400774.
Ervin maintains that the acting administrative judge lacked the jurisdiction to order the
deposition because the requisites for allowing reassignment were not shown. Thus, that
order is null and void, and mandamus will lie to compel the respondent to vacate it. On
August 6, 2012, the respondent moved to dismiss, and on August 15, Ervin filed his brief
in opposition and followed with his own motion for summary judgment on September 10,
2012. The respondent did not file a brief in opposition to the summary judgment
motion. For the following reasons, this court grants the judge’s motion to dismiss,
denies Ervin’s motion for summary judgment, and dismisses the application for a writ of
mandamus.
{¶2} In the underlying case, the grand jury indicted Ervin on one count of
attempted rape and 13 counts of rape of his eight-year-old daughter. On April 23,
2001, the assigned trial judge commenced voir dire. While voir dire was continuing on
April 24, 2001, the prosecutor learned that the social worker would be unavailable for
testimony during trial because he was scheduled for surgery on April 26. Therefore, the prosecutor sought to take his testimonial deposition. For reasons that are not explained,
the prosecutor sought permission from the acting administrative judge, not the trial judge.
The acting administrative judge gave permission for the deposition to proceed but did
not issue a journal entry on the matter.
{¶3} On April 25, 2001, the parties took the video deposition of the social
worker. The defense attorney was present, objected to notice, but participated in the
deposition and cross-examined the social worker. The deposition was subsequently used
during trial. The jury found Ervin guilty of attempted rape and 11 counts of rape. The
trial judge found Ervin to be a sexual predator and sentenced him to ten years
imprisonment on the attempted rape count and to life sentences on the rape counts, all to
run consecutive.
{¶4} On appeal, State v. Ervin, 8th Dist. No. 80437, 2002-Ohio-4093, appellate
counsel raised ten assignments of error, including several attacking the social worker’s
testimony. These included that the trial judge erred in allowing the social worker to
testify what the child told him, that the trial judge erred in allowing the social worker to
testify after he had destroyed his interview notes with the child, that the social worker
improperly opined that sexual abuse had occurred and vouched for the child’s credibility,
and that the trial judge erred in allowing the social worker’s video deposition to be used at
trial. This court overruled all of the assignments of error. Specifically, this court
ruled that the use of the deposition was proper because the social worker would be
unavailable because of sickness or infirmity, and because both Ervin and defense counsel were present during the deposition and defense counsel was able to subject the witness to
full cross-examination.
{¶5} In May 2012, Ervin moved to vacate the acting administrative judge’s order
allowing the deposition. On June 22, 2012, the respondent judge denied the motion to
vacate on the grounds of res judicata, lack of abuse of discretion in allowing the
deposition, and harmless error because disallowing the deposition would not have
changed the outcome of the trial. Ervin now brings this mandamus action to compel
the respondent judge to vacate the order allowing the deposition.
{¶6} 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, although mandamus may be used to compel a court to exercise judgment or
to discharge a function, it 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. Keenan v.
Calabrese, 69 Ohio St.3d 176, 631 N.E.2d 119 (1994); and 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. No. 67787, 1994
Ohio App. LEXIS 6227 (Sept. 26, 1994). Furthermore, if the relator had an adequate
remedy, regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108, and State ex rel.
Boardwalk Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33,
564 N.E.2d 86 (1990). 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).
{¶7} Ervin relies upon Berger v. Berger, 3 Ohio App.3d 125, 443 N.E.2d 1375
(8th Dist. 1981), and Rosenberg v. Gattarello, 49 Ohio App.2d 87, 359 N.E.2d 467 (8th
Dist. 1976), for the proposition that an administrative judge does not have the authority
to rule on a motion unless it is shown that the assigned trial judge is unavailable and that
delay on ruling on the motion would be prejudicial. Indeed, this court in Rosenberg
stated that because the administrative judge did not have authority to grant the motion,
“the order granting said motion was null and void.” 49 Ohio App.2d at 93. Ervin
argues that because the record does not shown the unavailability of the trial judge, the
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[Cite as State ex rel. Ervin v. Barker, 2013-Ohio-376.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98704
STATE, EX REL. LEVERT ERVIN RELATOR
vs.
JUDGE PAMELA BARKER RESPONDENT
JUDGMENT: WRIT DISMISSED
Writ of Mandamus Motion Nos. 457438 and 458454 Order No. 461949
RELEASE DATE: February 4, 2013 RELATOR
Levert Ervin No. 420633 Grafton Correctional Institution 2500 South Avon-Belden Road Grafton, Ohio 44044
ATTORNEYS FOR RESPONDENTS
Timothy J. McGinty Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:
{¶1} On July 24, 2012, the relator, Levert Ervin, commenced this mandamus
action against the respondent, Judge Pamela Barker, to compel the judge to vacate an
order of the acting administrative judge allowing the taking of a testimonial deposition
during trial in the underlying case, State v. Ervin, Cuyahoga C. P. No. CR-400774.
Ervin maintains that the acting administrative judge lacked the jurisdiction to order the
deposition because the requisites for allowing reassignment were not shown. Thus, that
order is null and void, and mandamus will lie to compel the respondent to vacate it. On
August 6, 2012, the respondent moved to dismiss, and on August 15, Ervin filed his brief
in opposition and followed with his own motion for summary judgment on September 10,
2012. The respondent did not file a brief in opposition to the summary judgment
motion. For the following reasons, this court grants the judge’s motion to dismiss,
denies Ervin’s motion for summary judgment, and dismisses the application for a writ of
mandamus.
{¶2} In the underlying case, the grand jury indicted Ervin on one count of
attempted rape and 13 counts of rape of his eight-year-old daughter. On April 23,
2001, the assigned trial judge commenced voir dire. While voir dire was continuing on
April 24, 2001, the prosecutor learned that the social worker would be unavailable for
testimony during trial because he was scheduled for surgery on April 26. Therefore, the prosecutor sought to take his testimonial deposition. For reasons that are not explained,
the prosecutor sought permission from the acting administrative judge, not the trial judge.
The acting administrative judge gave permission for the deposition to proceed but did
not issue a journal entry on the matter.
{¶3} On April 25, 2001, the parties took the video deposition of the social
worker. The defense attorney was present, objected to notice, but participated in the
deposition and cross-examined the social worker. The deposition was subsequently used
during trial. The jury found Ervin guilty of attempted rape and 11 counts of rape. The
trial judge found Ervin to be a sexual predator and sentenced him to ten years
imprisonment on the attempted rape count and to life sentences on the rape counts, all to
run consecutive.
{¶4} On appeal, State v. Ervin, 8th Dist. No. 80437, 2002-Ohio-4093, appellate
counsel raised ten assignments of error, including several attacking the social worker’s
testimony. These included that the trial judge erred in allowing the social worker to
testify what the child told him, that the trial judge erred in allowing the social worker to
testify after he had destroyed his interview notes with the child, that the social worker
improperly opined that sexual abuse had occurred and vouched for the child’s credibility,
and that the trial judge erred in allowing the social worker’s video deposition to be used at
trial. This court overruled all of the assignments of error. Specifically, this court
ruled that the use of the deposition was proper because the social worker would be
unavailable because of sickness or infirmity, and because both Ervin and defense counsel were present during the deposition and defense counsel was able to subject the witness to
full cross-examination.
{¶5} In May 2012, Ervin moved to vacate the acting administrative judge’s order
allowing the deposition. On June 22, 2012, the respondent judge denied the motion to
vacate on the grounds of res judicata, lack of abuse of discretion in allowing the
deposition, and harmless error because disallowing the deposition would not have
changed the outcome of the trial. Ervin now brings this mandamus action to compel
the respondent judge to vacate the order allowing the deposition.
{¶6} 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, although mandamus may be used to compel a court to exercise judgment or
to discharge a function, it 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. Keenan v.
Calabrese, 69 Ohio St.3d 176, 631 N.E.2d 119 (1994); and 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. No. 67787, 1994
Ohio App. LEXIS 6227 (Sept. 26, 1994). Furthermore, if the relator had an adequate
remedy, regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108, and State ex rel.
Boardwalk Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33,
564 N.E.2d 86 (1990). 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).
{¶7} Ervin relies upon Berger v. Berger, 3 Ohio App.3d 125, 443 N.E.2d 1375
(8th Dist. 1981), and Rosenberg v. Gattarello, 49 Ohio App.2d 87, 359 N.E.2d 467 (8th
Dist. 1976), for the proposition that an administrative judge does not have the authority
to rule on a motion unless it is shown that the assigned trial judge is unavailable and that
delay on ruling on the motion would be prejudicial. Indeed, this court in Rosenberg
stated that because the administrative judge did not have authority to grant the motion,
“the order granting said motion was null and void.” 49 Ohio App.2d at 93. Ervin
argues that because the record does not shown the unavailability of the trial judge, the
acting administrative judge was without jurisdiction to allow the deposition and his order
was null and void. Ervin continues that a lack of jurisdiction is never waived and can be
raised at any time. Moreover, he submits that because he has exhausted his remedy by
way of appeal, he now no longer has an adequate remedy at law.
{¶8} However, Berger does not hold that a substitute judge’s order is void, if
there is no proper reassignment. The actual holding is: “where the record fails to show
proper reassignments of the case to the judges making those rulings, they are voidable and
must be vacated on a timely motion or appeal by a party that has not waived his objection to such irregularity.” 3 Ohio App.3d at 125. Furthermore, the courts of Ohio have
consistently followed this principle. State ex rel. Berger v. McMonagle, 6 Ohio St.3d
28, 451 N.E.2d 225 (1983) — a party possesses an adequate remedy at law by way of
appeal to contest the issue of an improper assignment; State ex rel. Carr v. McDonnell,
124 Ohio St.3d 62, 2009-Ohio-6165, 918 N.E.2d 1004; and Morgan v. Morgan, 5th Dist.
No. 99-CA-0136, 2000 Ohio App. LEXIS 693 (Feb. 22, 2000). In Rolfe v. Galvin, 8th
Dist. No. 86471, 2006-Ohio-2457, ¶ 67, a prohibition action, various judges were
assigned, removed, reassigned and served as judges in the underlying cases. Rolfe
claimed Judge Galvin’s latest orders were void because she had not been properly
reassigned to the case. This court rejected the argument because it ignored “the
distinction between void and voidable. A void judgment is a mere nullity, and can be
attacked at any time, while a voidable judgment is fully effective and valid unless and
until it is challenged through direct appeal, thus precluding a collateral attack, such as an
extraordinary writ.” Thus, because the acting administrative judge’s order was voidable,
mandamus will not lie to compel its vacation.
{¶9} In summary, Ervin’s argument that the acting administrative judge lacked
subject matter jurisdiction to issue the ruling is ill-founded. Ervin’s proper remedy was
to appeal this issue in his initial appeal or after the trial court denied his motion to vacate.
The fact that he had an adequate remedy law now precludes a writ of mandamus.
McGrath and Boardwalk Shopping Ctr., supra. {¶10} Accordingly, this court grants the respondent’s motion to dismiss, and
dismisses this application for a writ of mandamus. Relator to pay costs. This court
directs the clerk of court to serve all parties notice of this judgment and its date of entry
upon the journal as required by Civ.R. 58(B).
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and MARY EILEEN KILBANE, J., CONCUR