[Cite as State ex rel. Laurie v. Ondrey, 2021-Ohio-1991.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY
STATE OF OHIO ex rel. CASE NO. 2021-G-0008 KIMBERLY LAURIE, et al.,
Relators, Original Action for Writ of Prohibition -v-
THE HONORABLE DAVID ONDREY, et al.,
Respondents.
PER CURIAM OPINION
Decided: June 14, 2021 Judgment: Petition dismissed
Jay F. Crook, Jay F. Crook, Attorney at Law, LLC, 30601 Euclid Avenue, Wickliffe, OH 44092 (For Relators).
James R. Flaiz, Geauga County Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For Respondent, Judge David Ondrey).
Benjamin G. Chojnacki, City of Chardon Law Director, 1301 East Ninth Street, Suite 3500, Cleveland, OH 44114 (For Respondent, Judge Forest Burt).
PER CURIAM.
{¶1} Relators, Kimberly Laurie and Seth Miller, have filed an “Original Action
Seeking Writ of Prohibition and Alternative Writ with Supporting Affidavit.” Respondents,
The Honorable David Ondrey and The Honorable Forrest Burt, have each moved to dismiss the petition pursuant to Civ.R. 12(B)(6). Because relators have an adequate
remedy at law, we grant respondents’ motion and dismiss the matter.
{¶2} Relators are criminal defendants in two separate cases pending in the
Chardon Municipal Court. The charges are a result of an incident that took place on June
27, 2019. Following the incident, the Geauga County Prosecutor filed an application for
appointment of special prosecuting attorney with the Geauga County Court of Common
Pleas. Respondent, Judge David M. Ondrey, considered the application and, at the
request of the prosecutor, placed the application under seal. On July 30, 2019, Judge
Ondrey granted the application for a special prosecutor.
{¶3} After completing the criminal investigation, criminal charges were filed
against relators in the Chardon Municipal Court. Relators filed motions to dismiss the
prosecution, claiming the appointment was improper. The motions were denied by the
Chardon Municipal Court. The visiting judge determined the court lacked legal authority
to contravene the actions of the Geauga County Court of Common Pleas. According to
relators’ petition, the trial on the charges is scheduled for June 2021.
{¶4} Relators assert they are entitled to a writ of prohibition because the
application of a special prosecutor was insufficient, improper, and unnecessary. Relators
claim they lack an adequate remedy at law because the trial will proceed even though the
special prosecutor was improperly appointed. In effect, relators contend, in light of the
alleged legal problems inherent in the appointment process, the municipal court lacks
jurisdiction to proceed. Relators also seek an “extraordinary writ of stay.” Because of the
alleged problems with the appointment of the special prosecutor, they claim an
emergency stay of the prosecution is necessary.
Case No. 2021-G-0008 {¶5} To be entitled to a writ of prohibition, relators must establish that (1)
respondents are 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, ¶18. The last two elements can be met by a
showing that the trial court “patently and unambiguously” lacked jurisdiction. Chesapeake
Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204, 2013-Ohio-224, ¶11. In this
matter, relief in prohibition is unavailable because there is an adequate remedy at law by
filing an appeal from the trial court’s denial of relators’ motion to dismiss the charges, if
necessary, at the conclusion of the proceedings.
{¶6} In State ex rel. Johnson v. Talikka, 71 Ohio St.3d 109 (1994), the Supreme
Court of Ohio addressed a matter with similar facts as those in this case. When the
Ashtabula County Sheriff William Johnson was accused of illegally using county and jail
resources for a golf outing, the Ashtabula County Prosecutor sought and obtained to have
Leo Talikka appointed special prosecutor because of conflict-of-interest problems. After
Talikka had obtained an indictment against the Sheriff, Johnson was granted leave to file
a quo warranto action to remove Talikka as special prosecutor because the county
commissioners did not participate in Talikka’s appointment. The Supreme Court affirmed
this court’s dismissal of the original action because Johnson had an adequate remedy at
law by filing a motion to dismiss the indictment and an eventual appeal if the motion was
overruled and the defendant convicted. The Court determined:
{¶7} “[Where] the appointment of a special prosecutor like Talikka is challenged
by a defendant in an underlying criminal case, quo warranto relief is precluded because
Case No. 2021-G-0008 of the available, adequate remedies of a motion to dismiss the indictment with an appeal
if the motion is overruled and the defendant convicted.” Id. at 355.
{¶8} Similarly, in State ex rel. Jackson v. Allen, 65 Ohio St.3d 37 (1992), the
Supreme Court of Ohio denied the extraordinary writ of quo warranto because the
defendant in a criminal matter had the adequate remedy at law by appealing the denial
of his motion to dismiss indictments. In Jackson, the former Hancock County prosecutor
sought the appointment of a special prosecutor to investigate and, if appropriate, to
prosecute an attorney, inter alia, for perjury. The prosecutor believed he could be called
as a witness in the case. When the prosecutor left office, the new prosecutor did not apply
to have the third party reappointed as special prosecutor. The attorney/defendant then
moved to dismiss the indictment alleging that Allen’s authority as special prosecutor had
lapsed. The trial court denied the motion. Reginald Jackson, acting in place of the
prosecutor, then sought the writ of quo warranto to remove the special prosecutor as a
usurper. The Supreme Court denied the writ: “We conclude that [the defendant] is trying
to quash the indictments through this proceeding rather than appeal the trial court’s denial
of his motion to dismiss. Since [the defendant] has an available appeal remedy, we grant
[the special prosecutor’s] motion for summary judgment and deny the writ for quo
warranto.” Id. at 39.
{¶9} Here, although relators have filed a petition for writ of prohibition rather than
quo warranto, we find the re-captioning a distinction without difference. That is, relators
are seeking to collaterally challenge the prosecution or “quash” the indictments through
an original action. As the Court noted in Talikka and Jackson, however, relators can
challenge the trial court’s denial of their motions to dismiss on an appeal, if they are
Case No. 2021-G-0008 convicted, at the conclusion of the criminal proceedings. Relators, therefore, possess an
adequate remedy in the ordinary course of law.
{¶10} Moreover, courts possess inherent power to appoint special prosecutors
where a prosecutor asserts a conflict of interest. See, e.g., State ex rel. Williams v.
Zaleski, 12 Ohio St.3d 109, 111-112 (1984); see also State v. Bunyan, 51 Ohio App.3d
190, 192 (3d Dist.1988) (“[T]he court of common pleas possesse[s] the inherent power to
appoint a special prosecutor to perform the duties of the elected prosecuting attorney who
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[Cite as State ex rel. Laurie v. Ondrey, 2021-Ohio-1991.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY
STATE OF OHIO ex rel. CASE NO. 2021-G-0008 KIMBERLY LAURIE, et al.,
Relators, Original Action for Writ of Prohibition -v-
THE HONORABLE DAVID ONDREY, et al.,
Respondents.
PER CURIAM OPINION
Decided: June 14, 2021 Judgment: Petition dismissed
Jay F. Crook, Jay F. Crook, Attorney at Law, LLC, 30601 Euclid Avenue, Wickliffe, OH 44092 (For Relators).
James R. Flaiz, Geauga County Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For Respondent, Judge David Ondrey).
Benjamin G. Chojnacki, City of Chardon Law Director, 1301 East Ninth Street, Suite 3500, Cleveland, OH 44114 (For Respondent, Judge Forest Burt).
PER CURIAM.
{¶1} Relators, Kimberly Laurie and Seth Miller, have filed an “Original Action
Seeking Writ of Prohibition and Alternative Writ with Supporting Affidavit.” Respondents,
The Honorable David Ondrey and The Honorable Forrest Burt, have each moved to dismiss the petition pursuant to Civ.R. 12(B)(6). Because relators have an adequate
remedy at law, we grant respondents’ motion and dismiss the matter.
{¶2} Relators are criminal defendants in two separate cases pending in the
Chardon Municipal Court. The charges are a result of an incident that took place on June
27, 2019. Following the incident, the Geauga County Prosecutor filed an application for
appointment of special prosecuting attorney with the Geauga County Court of Common
Pleas. Respondent, Judge David M. Ondrey, considered the application and, at the
request of the prosecutor, placed the application under seal. On July 30, 2019, Judge
Ondrey granted the application for a special prosecutor.
{¶3} After completing the criminal investigation, criminal charges were filed
against relators in the Chardon Municipal Court. Relators filed motions to dismiss the
prosecution, claiming the appointment was improper. The motions were denied by the
Chardon Municipal Court. The visiting judge determined the court lacked legal authority
to contravene the actions of the Geauga County Court of Common Pleas. According to
relators’ petition, the trial on the charges is scheduled for June 2021.
{¶4} Relators assert they are entitled to a writ of prohibition because the
application of a special prosecutor was insufficient, improper, and unnecessary. Relators
claim they lack an adequate remedy at law because the trial will proceed even though the
special prosecutor was improperly appointed. In effect, relators contend, in light of the
alleged legal problems inherent in the appointment process, the municipal court lacks
jurisdiction to proceed. Relators also seek an “extraordinary writ of stay.” Because of the
alleged problems with the appointment of the special prosecutor, they claim an
emergency stay of the prosecution is necessary.
Case No. 2021-G-0008 {¶5} To be entitled to a writ of prohibition, relators must establish that (1)
respondents are 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, ¶18. The last two elements can be met by a
showing that the trial court “patently and unambiguously” lacked jurisdiction. Chesapeake
Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204, 2013-Ohio-224, ¶11. In this
matter, relief in prohibition is unavailable because there is an adequate remedy at law by
filing an appeal from the trial court’s denial of relators’ motion to dismiss the charges, if
necessary, at the conclusion of the proceedings.
{¶6} In State ex rel. Johnson v. Talikka, 71 Ohio St.3d 109 (1994), the Supreme
Court of Ohio addressed a matter with similar facts as those in this case. When the
Ashtabula County Sheriff William Johnson was accused of illegally using county and jail
resources for a golf outing, the Ashtabula County Prosecutor sought and obtained to have
Leo Talikka appointed special prosecutor because of conflict-of-interest problems. After
Talikka had obtained an indictment against the Sheriff, Johnson was granted leave to file
a quo warranto action to remove Talikka as special prosecutor because the county
commissioners did not participate in Talikka’s appointment. The Supreme Court affirmed
this court’s dismissal of the original action because Johnson had an adequate remedy at
law by filing a motion to dismiss the indictment and an eventual appeal if the motion was
overruled and the defendant convicted. The Court determined:
{¶7} “[Where] the appointment of a special prosecutor like Talikka is challenged
by a defendant in an underlying criminal case, quo warranto relief is precluded because
Case No. 2021-G-0008 of the available, adequate remedies of a motion to dismiss the indictment with an appeal
if the motion is overruled and the defendant convicted.” Id. at 355.
{¶8} Similarly, in State ex rel. Jackson v. Allen, 65 Ohio St.3d 37 (1992), the
Supreme Court of Ohio denied the extraordinary writ of quo warranto because the
defendant in a criminal matter had the adequate remedy at law by appealing the denial
of his motion to dismiss indictments. In Jackson, the former Hancock County prosecutor
sought the appointment of a special prosecutor to investigate and, if appropriate, to
prosecute an attorney, inter alia, for perjury. The prosecutor believed he could be called
as a witness in the case. When the prosecutor left office, the new prosecutor did not apply
to have the third party reappointed as special prosecutor. The attorney/defendant then
moved to dismiss the indictment alleging that Allen’s authority as special prosecutor had
lapsed. The trial court denied the motion. Reginald Jackson, acting in place of the
prosecutor, then sought the writ of quo warranto to remove the special prosecutor as a
usurper. The Supreme Court denied the writ: “We conclude that [the defendant] is trying
to quash the indictments through this proceeding rather than appeal the trial court’s denial
of his motion to dismiss. Since [the defendant] has an available appeal remedy, we grant
[the special prosecutor’s] motion for summary judgment and deny the writ for quo
warranto.” Id. at 39.
{¶9} Here, although relators have filed a petition for writ of prohibition rather than
quo warranto, we find the re-captioning a distinction without difference. That is, relators
are seeking to collaterally challenge the prosecution or “quash” the indictments through
an original action. As the Court noted in Talikka and Jackson, however, relators can
challenge the trial court’s denial of their motions to dismiss on an appeal, if they are
Case No. 2021-G-0008 convicted, at the conclusion of the criminal proceedings. Relators, therefore, possess an
adequate remedy in the ordinary course of law.
{¶10} Moreover, courts possess inherent power to appoint special prosecutors
where a prosecutor asserts a conflict of interest. See, e.g., State ex rel. Williams v.
Zaleski, 12 Ohio St.3d 109, 111-112 (1984); see also State v. Bunyan, 51 Ohio App.3d
190, 192 (3d Dist.1988) (“[T]he court of common pleas possesse[s] the inherent power to
appoint a special prosecutor to perform the duties of the elected prosecuting attorney who
fe[els] unable to perform because of a conflict of interest.”). Because the Court of
Common Pleas has prima facie authority to appoint the special prosecutor and there is
nothing to suggest the complaints filed against relators are outside the subject-matter
jurisdiction of the Chardon Municipal Court, that tribunal does not patently and
unambiguously lack jurisdiction. Relators’ petition for writ of prohibition therefore fails to
state a claim upon which relief can be granted.
{¶11} Finally, Ohio’s district courts of appeal have original jurisdiction over writs
of quo warranto, mandamus, habeas corpus, prohibition, and procedendo. Ohio
Constitution, Article IV, Section 3(B)(1)(a)-(f). A “writ of stay” does not fall under any of
the preceding rubrics. Because the petition for writ of stay does not state a viable claim
for any of these five writs, this court lacks jurisdiction to proceed. Snype v. Oswick, 11th
Dist. Portage No. 2009-P-0031, 2009-Ohio-5066, ¶3. Relators’ petition for writ of stay
fails to state a claim upon which relief can be granted.
{¶12} For the reasons discussed above, respondents’ motion to dismiss is
granted.
MARY JANE TRAPP, P.J., CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., concur. 5
Case No. 2021-G-0008