IN THE SUPREME COURT OF OHIO ADAM CHARLES...
Transcript of IN THE SUPREME COURT OF OHIO ADAM CHARLES...
IN THE SUPREME COURT OF OHIO
ADAM CHARLES STONE, ESQ. CASE NO. 2020-0547 EYER STONE, LTD.
RELATORS
vs. HON. JUDGE RONALD FORSTHOEFEL
RESPONDENT
RESPONDENT JUDGE RONALD P. FORSTHOEFEL’S MOTION TO DISMISS PURSUANT TO CIV. R. 12(B)(6) AND
MEMORANDUM IN OPPOSITION TO MOTION FOR EMERGENCY STAY Adam Charles Stone (0085414) Christopher R. Tunnell (0072036) 840 S. Sandusky Ave. Ashland County Prosecutor Bucyrus, OH 44820 Michael D. Donatini (0080778) Phone: 419-562-2110 Assistant Prosecuting Attorney Fax: 419-562-1660 110 Cottage St., Third Floor E-mail: [email protected] Ashland, OH 44805 Phone: 419-289-8857 Relator E-mail: [email protected] Counsel for Respondent Judge Ronald P. Forsthoefel
Supreme Court of Ohio Clerk of Court - Filed April 24, 2020 - Case No. 2020-0547
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Now comes the Respondent, Ashland County Common Pleas Judge Ronald P.
Forsthoefel, and moves this Court to dismiss this action for failure to state a claim upon which
relief can be granted, pursuant to Civ.R. 12(B)(6).
FACTS AND PROCEDURAL HISTORY
Relator Adam Charles Stone is an attorney representing Seth M. Whited in a criminal
case in the Ashland County Court of Common Pleas. Amended Petition, ¶6. Whited’s case is
set for jury trial before Respondent, Ashland County Common Pleas Judge Ronald P.
Forsthoefel, beginning on April 28, 2020. Id., ¶2. Relator has requested and been granted three
previous continuances in this case. Id., Exhibit E.
On April 7, 2020, Relator filed a motion asking Respondent to continue the trial for the
fourth time, citing the current COVID-19 pandemic. Id., Exhibit A. Respondent denied the
motion, citing the fact that the “for each of the four trial dates scheduled, witnesses have been
subpoenaed, then released, and have repeatedly been inconvenienced.” Id., Exhibit E.
Moreover, Respondent noted, “This is a case that has alleged victims, and the right to justice to
which those victims are entitled, has been impeded as a result of the multiple continuances in this
case.” Id.
Now, after waiting two weeks from the issuance of Respondent’s entry denying the
continuance, and just five days before trial, Relator has filed this action seeking mandamus relief
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and an emergency stay of the trial court proceedings, so that Respondent will be required to
postpone the trial.1
LAW AND ARGUMENT
“A motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the complaint.” State ex rel. Hanson v. Guernsey Cty. Bd.
of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). For the court to dismiss a
complaint for failure to state a claim under Rule 12(B)(6), “it must appear beyond doubt that the
plaintiff can prove no set of facts entitling him to relief.” Cincinnati v. Beretta U.S.A. Corp., 95
Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 5. In construing the complaint, the court
“must presume that all factual allegations of the complaint are true and make all reasonable
inferences in favor of the non-moving party.” Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190,
192, 532 N.E.2d 753 (1988).
As an extraordinary writ, mandamus relief requires the Petitioner to demonstrate that: 1)
the relator has a clear legal right to obtain performance of an act; 2) the respondent is under a
clear legal duty to perform the requested act; and 3) the relator has no plain and adequate remedy
in the ordinary course of the law. State ex rel. MetroHealth Medical Center v. Sutula, 110 Ohio
St. 3d 201; 2006-Ohio-4249, at ¶8. Moreover, even if the Court finds that a petitioner has
established a prima facie claim in mandamus, the Court may nevertheless, in the exercise of its
sound discretion, decline to award mandamus relief. State ex rel. Brown v. Board of Cty.
1 The cover pages of Relator’s Petition and Amended Petition indicate that he is seeking both a writ of prohibition and a writ of mandamus, but the Amended Petition itself, ¶¶ 46-49, only attempts to set out a case for mandamus relief. The Petition is devoid of any allegation that Respondent is exercising powers that he is not authorized by law to exercise, or that he patently and unambiguously lacks jurisdiction to proceed with the trial, as would be required for this Court to grant a writ of prohibition. State ex rel. Smith v. Hall, 145 Ohio St. 3d 473, 2016-Ohio-1052.
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Commrs. (1970), 21 Ohio St. 2d 62, 64-65; State ex rel. Mettler v. Straton (1941), 139 Ohio St.
86, 88.
I. RELATOR HAS FAILED TO CAPTION HIS CASE IN THE NAME OF THE
STATE.
R.C. 2731.04 provides that an application for a writ of mandamus “must be by petition, in
the name of the state on the relation of the person applying, and verified by affidavit.” Relator’s
complaint is not brought in the name of the state; it is captioned in the name of “Adam Charles
Stone, Esq./Eyer Stone, Ltd.” A complaint brought in the name of the state would name the
Relator as “State ex rel. Adam Charles Stone.” This defect alone is fatal to a mandamus petition
and subjects the case to dismissal. See e.g. Rust v. Lucas Cty Bd. of Elections, 108 Ohio St. 3d
139; 2005-Ohio-5795; Maloney v. Ct. of Common Pleas of Allen Cty. (1962), 173 Ohio St. 226.
Accordingly, this case should be dismissed.
II. RELATOR HAS NO CLEAR LEGAL RIGHT TO RELIEF, AND RESPONDENT
HAS NO CLEAR LEGAL DUTY TO GRANT A CONTINUANCE.
A. MANDAMUS CANNOT BE USED TO CONTROL THE DISCRETION OF A
LOWER COURT.
It is well established in Ohio that the decision to grant or deny continuances is a matter
entrusted to the sound discretion of the trial court. State v. Unger (1981), 67 Ohio St. 2d 65, 67.
R.C. 2731.03 unequivocally provides that a “writ of mandamus may require an inferior tribunal
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to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control
judicial discretion.”
In denying Relator’s fourth motion for continuance, Respondent cited adequate reasons to
proceed with trial as scheduled, specifically the repeated inconvenience to witnesses who have
been subpoenaed and released three times already and the need for the victims in this case to
have the case timely concluded. Amended Petition, Exhibit E. Indeed, Relator is in a unique
position to understand the hardships that have already been inflicted upon the victims and
witnesses by these repeated delays, which is one reason why such matters are left to the
discretion of trial courts. Further, the Petition itself admits that Respondent “has taken
extraordinary measures to try to protect the jurors, the defendant, court personnel, and the
lawyers” from being exposed to disease. Id., ¶28. Respondent has not taken lightly the need to
protect public health, and his effort to balance public health concerns with the need to administer
justice in a timely and efficient manner is evident from Respondent’s judgment entry. Id.,
Exhibit E. In fact, in addition to the “Judgment Entry Special Proceedings” attached to the
Amended Petition as Exhibit D, Respondent has issued a four-page order in the Whited case
specifying safety measures to be taken in conducting this particular trial. Judgment Entry –
Special COVID-19 Procedures, attached hereto as Exhibit 1.
As the trial judge, Respondent is familiar with the case and is positioned to understand
what the trial of the case will entail and whether the risk of proceeding can be adequately
mitigated. However, in light of R.C. 2731.03, this Court need not and should not conduct an
abuse of discretion analysis. The statute simply precludes this Court from granting mandamus
relief to reverse a decision that is rightly left to Respondent’s discretion.
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B. NONE OF THE ORDERS CITED BY RELATOR ESTABLISH ANY
PROHIBITION AGAINST RESPONDENT CONDUCTING JURY TRIALS OR
ANY DUTY FOR RESPONDENT TO GRANT CONTINUANCES.
Relator has identified numerous orders issued by Ohio’s governor and director of health
intended to limit interactions that could facilitate the spread of COVID-19. These include an
order closing all schools (Amended Petition, ¶9); an order closing bars and restaurants to in-
house patrons (Id., ¶13); an order closing polling locations for the March primary election (Id.,
¶14); an order canceling non-essential surgeries and certain other medical procedures (Id., ¶15);
an order closing barber shops, salons, spas, and tattoo parlors (Id.,, ¶16), and the “stay-at-home”
order requiring, inter alia, that non-essential businesses in the state temporarily cease operations
(Id., ¶17).
However, Relator can point to no provision in any of those orders that prohibits courts
from conducting jury trials. In fact, Paragraph 10 of the “stay-at-home” order categorically
exempts judges, court personnel, jurors, and grand jurors from the order, leaving no doubt that
jury trials are allowed to proceed under the order. See Amended Director’s Stay at Home Order,
Exhibit 2 hereto, ¶10. Moreover, the same paragraph of the order gives each governmental body
broad discretion to “determine its Essential Governmental Functions and identify employees
and/or contractors necessary to the performance of those functions.” Id.
Relator further cites this Court’s March 27, 2020 administrative order tolling all “time
limitations, deadlines, and other directives related to time,” as well as this Court’s March 30,
2020 guidance bulletin to local courts. Amended Petition, ¶¶ 18-19. The former order was
apparently issued pursuant to this Court’s authority to promulgate procedural rules for the
inferior courts throughout the state. The latter document, clearly termed as “guidance,” does not
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purport anywhere to be binding upon inferior courts. It specifically states that “no one
solution…will be appropriate for every court” and asks courts to consider, under existing
authority, granting continuances for non-essential court appearances, with a suggested definition
for essential proceedings. Exhibit 3. This is simply not enough to establish any legal duty for
the Court to continue a trial, nor a clear legal right on the part of the Relator for a continuance to
be granted.
III. RELATOR HAS NOT IDENTIFIED FACTS SUFFICIENT TO WARRANT AN
EMERGENCY STAY.
Relator asks this Court to grant an emergency stay of the trial court proceedings, pursuant to
State ex rel. McArtor v. Kovack, Slip Opinion dated April 16, 2020, Case No. 2020-0490, 2020-
Ohio-1489, and State ex rel. Thurman v. Kovack, Slip Opinion dated April 16, 2020, Case No.
2020-0491, 2020-Ohio-1490. In McArtor, the relator described a hearing in Medina County
Domestic Relations Court at which the litigants were seated next to their attorneys in small
rooms, where the individuals were not placed six feet apart as public health authorities have
recommended. McArtor, Petition and Motion for Emergency Stay, ¶26. In Thurman, S.Ct. Case
No. 2020-0491, the relator similarly alleged that the Medina County Domestic Relations Court
was not providing adequate spacing in its facilities. Thurman, Petition and Motion for
Emergency Stay, ¶32.
In contrast, Relator herein admits that Respondent “has taken extraordinary measures to
try to protect the jurors, the defendant, court personnel, and the lawyers.” Amended Petition,
¶28. Despite the Court’s general order pertaining to COVID-19 safety measures (Amended
Petition, Exhibit D) and the order pertaining specifically to the Whited case (Exhibit 1 hereto),
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Relator makes an unsupported conclusory statement that holding the trial “still puts Ashland
County, Ohio and surrounding communities at-risk.”
Notably, jurors will be seated in the gallery, where they have more personal space than in
the jury box; jury selection will be conducted in two groups; and provision is made for the use of
face masks. Id. The fact that these precautions are being taken should help to allay any fears
that the jury may have. See Amended Complaint, ¶¶ 32-35, 45. While Relator states that some
jurors have retained an attorney to seek legal redress, id, ¶45, the undersigned counsel is not
aware, at the time of writing, of any motion or other legal action having been filed on behalf of
those jurors.
Further, proceedings will be livestreamed to allow public access to the courtroom while
minimizing the number of people in the courtroom. Amended Petition, Exhibit F. Relator
admits that Ashland County has only five confirmed COVID-19 cases, compared with 98
confirmed cases and five deaths in Medina County. Amended Petition, ¶31; Thurman, Petition
and Motion for Emergency Stay, ¶35.
Relator’s claim that there is a health department employee on the jury who would be
taken away from his duties for three days, thereby impacting the health department’s ability to
undertake public health duties (Amended Petition, ¶30) is simply false. The juror apparently at
issue, Jeff Hardman, is an appointed member of the board of health. He owns a well-drilling
company for his regular occupation and, as a member of the board of health, attends periodic
public meetings of the board to vote on the board’s affairs. He is not a day-to-day employee of
the health department, and there is no evidence that his participation on the jury (assuming that
he is even selected for the jury) would have any impact on health department operations
pertaining to COVID-19 prevention.
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Finally, McArtor and Thurman involved a judge who refused to continue any final
hearings in domestic relations cases. The instant case involves a single jury trial that has already
been postponed three times at Relator’s request, after witnesses had already been subpoenaed
each time. It is a third-degree felony child endangering case, in which the defendant is alleged to
have physically restrained a one-year-old child, creating a substantial risk of serious physical
harm. Indictment, Exhibit 4 hereto. The family of the child, now two years of age, is
unquestionably anxious for the case to conclude so that they can move on with their lives.
This Court, in its March 20, 2020 guidance to local courts, has emphasized that “no one
solution…will be appropriate for every court.” The resolution of a single felony case with a
child victim, with precautions taken that go so far as to rearrange the entire courtroom to allow
for ample spacing, does not demand the same solution as a domestic relations court in a much
larger county attempting to conduct business as usual with respect to all final divorce hearings.
The timely administration of justice in criminal cases is of sufficient importance that the
governor and the director of health have specifically allowed jury trials to proceed in their “stay-
at-home” order.
CONCLUSION
For the foregoing reasons, Relator has failed to identify any clear legal duty for the Court
to continue the scheduled jury trial, or a corresponding legal right for Relator to have the trial
continued. As such, Relator is not entitled to mandamus relief, and the case should be dismissed
for failure to state a claim. To the extent that Relator’s cover page indicates that he is also
seeking a writ of prohibition, no allegation of the unlawful exercise of judicial power appears
anywhere in the complaint, and the argument has effectively been abandoned.
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Moreover, Relator has failed to identify any particular facts, akin to the facts of the
Medina County cases cited above, that justify an emergency stay of the trial in this case. Relator
has specifically acknowledged the “extraordinary” precautions that Relator has taken to protect
public health. Respondent is seeking to conclude a single criminal case that has already been
delayed multiple times, inconveniencing numerous witnesses and delaying closure for the
victim’s family. The motion for an emergency stay should also be denied.
Respectfully submitted, CHRISTOPHER R. TUNNELL (0072036) Ashland County Prosecuting Attorney
____________________________________ MICHAEL D. DONATINI (0080778) Assistant Prosecuting Attorney as Attorney for Respondent, Judge Ronald P. Forsthoefel
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion to Dismiss was sent
to the following via electronic mail this 24th day of April, 2020:
Adam Charles Stone, Esq.
____________________________________ MICHAEL D. DONATINI (0080778) Assistant Prosecuting Attorney as Attorney for Respondent
Hon. Ronald P. Forsthoefel, Judge, Common Pleas Court of Ashland County, Ohio
IN THE COURT OF COMMON PLEAS, ASHLAND COUNTY, OHIO GENERAL DIVISION
STATE OF OHIO, Plaintiff, CASE NO. 19-CRI-114 vs. SETH M WHITED, JUDGMENT ENTRY Defendant. Special COVID-19 Procedures
This matter is before the Court sua sponte to establish special procedures for the
jury trial scheduled April 28, 2020, necessitated by current social distancing and other
personal protective policies established by both the State and Federal governments. In
accordance with those policies, the practices set forth below shall be observed during
the April 28, 2020 jury trial:
1. Jury voir dire shall be conducted in three (3) sessions on Tuesday, April 28,
2020. The first session will commence at 8:00 a.m. with juror orientation and
will be for those designated as Group A jurors. Group A shall not exceed a
total of 18 persons. Counsel and parties shall not be required to report to
Courtroom One until 8:30 a.m. Group A jurors who are not excused for cause
shall be temporarily excused until 3:00 p.m., at which time they shall appear
and be present to participate in the third session (the exercise of challenges
for cause).
IN
09:49 am, Apr 15, 2020
DEBORAH A. MYERS
CLERK OF COURTS
ASHLAND COUNTY, OHIO
Hon. Ronald P. Forsthoefel, Judge, Common Pleas Court of Ashland County, Ohio Page 2 of 4
2. The second session will commence at 1:00 p.m. with juror orientation and will
be for those designated as Group B jurors. Group B shall not exceed a total of
18 persons. Counsel and parties shall not be required to report to Courtroom
One until 1:30 p.m.
3. The third session will commence upon the conclusion of Group B voir dire
(approximately 3:00 p.m.). The third session shall be for the purpose of
exercising peremptory challenges. The session shall commence with the first
18 jurors collectively from Groups A and B seated in the courtroom. Any
remaining jurors shall remain in the hallway outside Courtroom One until
called to fill a seat opened by any juror excused. When one of the first 12
jurors is excused, only the juror replacing one of the first 12 will rotate seats,
and the juror called from the hallway shall fill the seat of the juror moved to
one of the first 12 seats.
4. There will be 12 jurors seated as well as two alternates.
5. No evidence nor witness testimony will be presented on Tuesday, April 28,
2020. The day will be used only for jury selection.
6. After the jury is selected, during the start of each day of trial, jurors shall
report to the main entrance of the courtroom, and shall move directly to their
assigned seats in the gallery, unless otherwise accessing water or
refreshments, which will be made available for jurors in the courtroom.
7. Day Two of the trial will commence on Wednesday, April 29, 2020 at 8:30
a.m. with opening statements of Counsel.
Hon. Ronald P. Forsthoefel, Judge, Common Pleas Court of Ashland County, Ohio Page 3 of 4
8. The Courtroom One gallery shall be used for seating the jurors.
9. Counsel table shall be facing each other, with the State’s table situated in
front of the existing jury box.
10. A temporary witness stand will be placed in the middle of the courtroom well,
between counsel table, located at a point where counsel and all jurors can
observe the witness.
11. Counsel shall remain at counsel table when questioning witnesses but may
otherwise move through the well of the courtroom to access evidence and
presentation tools.
12. The Court will attempt to have a free-standing monitor connected to the
courtroom evidence presentation system for witness use.
13. Should there be any issue requiring discussion outside the presence of the
jury, the judge, counsel and the court reporter shall retire to the jury to engage
in that discussion, and the jurors will remain in the courtroom.
14. Face masks for personal health protection may be worn by any juror, the
defendant and counsel; provided however, that the defendant will be required
to remove any face mask he may be wearing when requested for the purpose
of witness identification. Witnesses may wear face masks when not testifying
but shall lower or remove or lower them when testifying. It is recommended
that counsel also lower or remove their masks when asking questions of any
witness or when addressing the Court, so that their speech may be accurately
recorded by the Court Stenographer.
Hon. Ronald P. Forsthoefel, Judge, Common Pleas Court of Ashland County, Ohio Page 4 of 4
15. The Court Stenographer shall be permitted to set up at a location where the
faces of both the witness and counsel are capable of being observed.
16. During jury deliberation, the jurors shall be instructed to knock on the glass
entrance door of the courtroom when needing the assistance of court
personnel. Court security officers shall respond from their office which is
located near the courtroom entrance door.
17. Additional procedures such as restroom protocol, and other logistical matters
shall be addressed during the trial as circumstances dictate.
It is so ordered.
________________________________ Ronald P. Forsthoefel, Judge
The COVID-19 pandemic has created unprecedented times for the judiciary and the bar of Ohio. Now, more than ever, it is imperative that the judiciary, the bar, and all justice system partners work together to ensure access to the courts while also minimizing COVID-19 transmission to the public, litigants, bar, and court staff. While there is no one solution that will be appropriate for every court, there are a number of options that should be considered under existing authority.
GUIDANCE TO LOCAL COURTSCOVID-19 Public Health Emergency
The Supreme Court of Ohio 65 South Front Street Columbus, Ohio 43215-3431 sc.ohio.gov/coronavirus 3/30/2020
EFFORTS TO MINIMIZE PHYSICAL APPEARANCES AT COURT
• Sua sponte granting of continuances for non-essential court appearances (an essentialproceeding may be defined as one in which reliefis necessary to protect a person’s health, safety,housing, or to prevent some other imminent,serious harm that cannot be remedied if allowedto occur); or, in the alternative, reschedulingof non-essential court appearances as phone orvideo conferences.
• Temporarily continue eviction filings, pendingeviction proceedings, scheduled move-outs, andthe execution of foreclosure judgements (exceptin the instances where allegations of domesticviolence are involved).
• Temporarily stay the filing and enforcing of anygarnishment actions or orders.
• Leverage technology, such as video conferencing,web-based meeting platforms, and telephone, toconduct arraignments, hearings, pre-trials,treatment team meetings, probation meetings,mediations, and to provide interpreter services,etc.
• Waive appearances for pretrial hearings.
• Extend deadlines for court-ordered classes,community service, and community controlconditions that require in-person attendance.
• Cancel or postpone probation/communitycontrol violation hearings if the alleged violationis not a new criminal offense.
ACCESS TO THE COURTS
• Encourage courts to avoid assessing fees pursuantto Civ.R. 3(D)(2), when an action is filed in animproper venue.
• Clerks of courts should continue to allow in-person filing of emergency or time-sensitive cases,particularly if e-filing is not available.
BAIL, BONDS, AND WARRANTS
• At bail hearings, issue recognizance bonds,unless there is clear and convincing evidence thatrecognizance release would present a substantialrisk of harm.
• Temporarily refrain from issuing a capias warrantfor failure to appear for traffic violations, minormisdemeanor, and non-violent misdemeanoroffenses.
• Generally, refrain from issuing capias arrest(bench) warrants and instead reschedule courtappearances.
• Impose sentences with a presumption thesentence will be noncustodial, unless there isclear and convincing evidence that release wouldpresent a substantial risk of harm.
INCARCERATED INDIVIDUALS
• Use discretion to release individuals held in jail.
• Release incarcerated individuals who are in ahigh-risk category for being infected with the virus(e.g., the elderly, those with asthma, cancer, heartdisease, lung disease, and diabetes) unless there isclear and convincing evidence that release wouldpresent a substantial risk of harm.
• For individuals incarcerated for non-violentmisdemeanor offenses, release and place them oncommunity-control sanctions, including GPS orelectronic monitoring, unless there is clear andconvincing evidence that release would present asubstantial risk of harm.
COMMUNICATION
• Provide updates on access to the courthouse andcase updates via the local court webpage, socialmedia, etc.
• Provide public notification that hearings areavailable for emergency actions, such as civilprotection orders, restraining orders, temporaryorders, medical emergency filings, shelter carehearings or preliminary protective hearingsfor children alleged to be abused, neglected ordependent, adult protective services, emergencyguardianship, and proceedings for a mentally illperson, etc.
• Send a memorandum to or call a virtual meetingwith local attorneys, child welfare agencies, adultprotective services, law enforcement, and otherjustice partners to make expectations clear.
• Post signs outside the courthouse to give currentstatus updates.
• Coordinate with the county or city public healthdepartment.
• Regularly communicate with the court’s fundingauthority to keep it informed of the court’scurrent status and administrative operationaldecisions.
• Communicate with staff about essential operationsand policies and keep them informed ofexpectations.
• Regularly check the Supreme Court’s Coronaviruswebsite for updated resources: sc.ohio.gov/coronavirus.
The Supreme Court of Ohio 65 South Front Street Columbus, Ohio 43215-3431 sc.ohio.gov/coronavirus 3/30/2020
Resources Available atsc.ohio.gov/coronavirus