Lingo v. State

[Cite as Lingo v. State, 138 Ohio St. 3d 427, 2014-Ohio-1052.]
LINGO ET AL.; GLICK, APPELLANT, v. THE STATE OF OHIO ET AL.;
WOHL, CLERK, APPELLEE.
[Cite as Lingo v. State, 138 Ohio St. 3d 427, 2014-Ohio-1052.]
Courts—Judgments—Declaratory judgment is not proper vehicle for determining
whether previously adjudicated rights were properly adjudicated—Court
of common pleas may not vacate judgment of municipal court—Void
judgments may be attacked at any time—A court has inherent authority to
vacate its own void judgments.
(No. 2012-1774—Submitted September 10, 2013—Decided March 25, 2014.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 97537, 2012-Ohio-2391.
_____________________
SYLLABUS OF THE COURT
1. Declaratory judgment is not a proper vehicle for determining whether rights
that were previously adjudicated were properly adjudicated.
2. A void judgment is a nullity and open to collateral attack at any time.
3. A court has the inherent authority to vacate its own void judgments.
4. A court of common pleas has no power to vacate an order rendered by a
municipal court.
____________________
O’CONNOR, C.J.
{¶ 1} This is an appeal that originated from a class action filed in the
Cuyahoga County Court of Common Pleas by Michael A. Lingo, William C.
Glick, and Gregory B. Williams against the state of Ohio, the Ohio Department of
the Treasury, and Raymond J. Wohl, in his official capacity as the clerk of the
Berea Municipal Court. The cause has reached this court with Glick and Wohl as
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the only remaining parties. In this appeal, we examine whether a class action may
be maintained in a common pleas court seeking declaratory and equitable relief
related to unappealed municipal court sentences alleged to be void for imposing
unlawfully excessive court costs. We hold that such an action may not be
maintained.
{¶ 2} Upon determining that Glick’s class action against Wohl was viable,
the common pleas court declared that multiple costs assessed against Glick as part
of his sentence had been unlawful, ordered Wohl to refund a portion of the costs
that Glick had paid to the municipal court, and held that class members who had
been assessed one or more of the unlawful costs were also owed a refund. The
Eighth District Court of Appeals disagreed that the class action was viable,
reversed the judgment, and ordered the common pleas court to grant summary
judgment in favor of Wohl.
{¶ 3} We affirm the appellate court’s judgment, albeit for different reasons
than those articulated in the appellate court’s opinion. We conclude that the relief
requested by appellant, Glick, in his class action was in substance a request to
vacate a portion of a judgment of the Berea Municipal Court. Because a court of
common pleas has no power to vacate an order rendered by a municipal court,
summary judgment should have been granted in favor of appellee, Wohl.
RELEVANT BACKGROUND
William Glick’s Municipal Court Proceedings
{¶ 4} In August 2004, a Middleburg Heights police officer cited Glick for
weaving and for operating a motor vehicle under the influence of alcohol. Under
the terms of a plea agreement, Glick agreed to plead guilty to reckless operation
and to pay court costs.
{¶ 5} The Berea Municipal Court judge accepted Glick’s plea, dismissed
the weaving charge at Glick’s cost, and convicted him of reckless operation. On
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April 15, 2005, the municipal court judge imposed Glick’s sentence, including
costs and a $450 fine.
{¶ 6} As provided by the Berea Municipal Court Loc.R. 5(A), the court
periodically establishes a schedule of costs. The court’s cost schedule is entered
into the court’s case-management software program by the clerk’s office.
Pursuant to the court’s direction, the software is programmed to assess state costs
once per case and municipal and general court costs once per offense charged.
The schedule of costs applicable at the time of Glick’s sentencing was established
by the municipal court in a January 3, 2005 journal entry.
{¶ 7} Glick was required to pay $427 in costs related to the reckless-
operation conviction and $83 in costs for the dismissal of the weaving charge, for
a total of $510 in costs. Directly after sentencing, the clerk’s office informed
Glick that the total amount due for the fine and costs was $960. Glick
immediately paid in cash, and the clerk’s office issued an itemized receipt. Glick
reviewed his receipt and was puzzled that he had been made to pay court costs for
the dismissed weaving charge. However, Glick did not appeal his conviction or
sentence.
A Class Action for Declaratory, Injunctive, and Restitution Relief
{¶ 8} On June 8, 2005, Glick, Lingo, and Williams (“the plaintiffs”) filed
a class action in the Cuyahoga County Court of Common Pleas, naming the state
of Ohio as the sole defendant. The complaint alleged that all three plaintiffs had
paid court costs associated with traffic violations, Lingo in the Parma Municipal
Court in December 2004, Williams in the Rocky River Municipal Court in
October 2004, and Glick in the Berea Municipal Court in April 2005. The
plaintiffs alleged that in each case, the municipal court assessed costs for each
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offense instead of once per case, in violation of R.C. 2743.70(A)(1)1 and
2949.091(A),2 as well as other unidentified provisions of state law.
{¶ 9} The complaint further alleged that the state of Ohio authorized,
facilitated, and benefitted from this unlawful practice. The plaintiffs purported to
bring the complaint on behalf of all persons who had paid improperly calculated
court costs in any Ohio municipal, county, or mayor’s court (“statutory courts”)
during the ten years prior to the filing of the complaint.
{¶ 10} The plaintiffs requested a declaration that court costs may be
assessed only once per case rather than once per charge, that the statutory courts
had subjected the plaintiffs and members of the class to illegal assessments of
1. R.C. 2743.70 mandates the assessment of costs in order to fund reparations payments to crime
victims. R.C. 2743.70 provides:
(A)(1) The court, in which any person is convicted of or pleads guilty
to any offense other than a traffic offense that is not a moving violation, shall
impose the following sum as costs in the case in addition to any other court costs
that the court is required by law to impose upon the offender:
(a) Thirty dollars, if the offense is a felony;
(b) Nine dollars, if the offense is a misdemeanor.
The court shall not waive the payment of the thirty or nine dollars court
costs, unless the court determines that the offender is indigent and waives the
payment of all court costs imposed upon the indigent offender. All such moneys
shall be transmitted on the first business day of each month by the clerk of the
court to the treasurer of state and deposited by the treasurer in the reparations
fund.
2. R.C. 2949.091 mandates the assessment of costs for the Ohio general revenue fund. The
version of R.C. 2949.091 in effect at the time of Glick’s charges provided:
(A)(1) The court, in which any person is convicted of or pleads guilty to
any offense other than a traffic offense that is not a moving violation, shall
impose the sum of fifteen dollars as costs in the case in addition to any other
court costs that the court is required by law to impose upon the offender. All
such moneys collected during a month shall be transmitted on or before the
twentieth day of the following month by the clerk of the court to the treasurer of
state and deposited by the treasurer of state into the general revenue fund. The
court shall not waive the payment of the additional fifteen dollars court costs,
unless the court determines that the offender is indigent and waives the payment
of all court costs imposed upon the indigent offender.
150 Ohio Laws, Part I, 936-937.
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costs, and that the class had a right to receive a full refund of those costs. The
plaintiffs further requested that the common pleas court permanently enjoin the
state from allowing any statutory court to collect court costs per offense in any
case. Finally, the plaintiffs requested that the common pleas court order the state
to disgorge all illegally assessed costs.
{¶ 11} The plaintiffs later filed a motion for class certification, proposing
that the class be defined as “all individuals who paid court costs on or after June
8, 1995 that were improperly calculated on the basis of the number of offenses
charged in proceedings before any Ohio municipal court, county court, or mayor’s
court.”
{¶ 12} The plaintiffs filed an amended complaint in September 2006,
adding the Ohio Department of the Treasury and appellee, Raymond J. Wohl,
Clerk of the Berea Municipal Court, as defendants. The plaintiffs did not add the
clerks of the municipal courts in which Lingo and Williams had been sentenced,
nor did they name any of the courts or judges. The amended complaint largely
repeated the allegations of the original complaint, but additionally asserted that
several statutory courts and clerks of court, including Wohl, had transferred
portions of the unlawfully collected costs to the state of Ohio and requested
equitable disgorgement from all three defendants.
The Answers and Motions for Summary Judgment
{¶ 13} Wohl admitted in his answer that the office of the clerk of the
Berea Municipal Court collects costs from defendants pursuant to the court’s
orders and cost schedules, but denied that the Berea Municipal Court assessed the
costs authorized by R.C. 2743.70(A) and 2949.091(A) more than once in any
case. Wohl admitted that the municipal court assessed various other costs for
each offense charged in a case and asserted that the practice was permitted by
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R.C. 1901.26.3 Wohl asserted a number of defenses, including res judicata and
failure to name indispensable parties.
{¶ 14} The state and treasurer also asserted numerous defenses in their
answers and motions, including lack of a live justiciable controversy between the
parties named, lack of subject-matter jurisdiction, and failure to name all
necessary parties. The state entities moved for summary judgment, attaching
evidence showing that the courts had assessed only one fee per case for the Ohio
general revenue fund, in compliance with R.C. 2949.091(A), and only one fee per
case for the Ohio victims-of-crime reparations fund, in compliance with R.C.
2743.70(A), against each of the plaintiffs.
3. R.C. 1901.26 governs the assessment of court costs by a municipal court. The version of R.C.
1901.26 in effect at the time of Glick’s sentence provided:
(A) [C]osts in a municipal court shall be fixed and taxed as follows:
(1) The municipal court * * * shall establish a schedule of fees and
costs to be taxed in any civil or criminal action or proceeding.
***
(B)(1) The municipal court may determine that, for the efficient
operation of the court, additional funds are necessary to acquire and pay for
special projects of the court including, but not limited to, the acquisition of
additional facilities or the rehabilitation of existing facilities, the acquisition of
equipment, the hiring and training of staff, community service programs,
mediation or dispute resolution services, the employment of magistrates, the
training and education of judges, acting judges, and magistrates, and other
related services. Upon that determination, the court by rule may charge a fee, in
addition to all other court costs, on the filing of each criminal cause, civil action
or proceeding, or judgment by confession.
***
(2) As used in division (B) of this section:
(a) “Criminal cause” means a charge alleging the violation of a statute
or ordinance, or subsection of a statute or ordinance, that requires a separate
finding of fact or a separate plea before disposition and of which the defendant
may be found guilty, whether filed as part of a multiple charge on a single
summons, citation, or complaint or as a separate charge on a single summons,
citation, or complaint. “Criminal cause” does not include separate violations of
the same statute or ordinance, or subsection of the same statute or ordinance,
unless each charge is filed on a separate summons, citation, or complaint.
149 Ohio Laws, Part III, 4464-4466.
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{¶ 15} In December 2006, Wohl filed a motion for summary judgment.
The following month, he filed a memorandum in opposition to class certification.
Wohl primarily asserted that the plaintiffs were seeking to relitigate final
judgments that were never directly appealed and asking the court of common
pleas to vacate a portion of those municipal court judgments. In addition, Wohl
argued that alleged violators of a criminal statute may not pursue an equitable
action asking a court to interfere with the enforcement of that statute, that no
private cause of action exists under the statutes cited by the plaintiffs, and that
statewide enforcement of statutes is a matter for the Ohio attorney general. Wohl
maintained that the plaintiffs had an adequate remedy by way of appeal. Finally,
Wohl suggested that the plaintiffs’ completion of their sentences rendered any
objection moot.
{¶ 16} In February 2007, the plaintiffs filed a cross-motion for summary
judgment and a memorandum in opposition to Wohl’s motion for summary
judgment, presenting an array of arguments and counterarguments. First, they
emphasized that they were seeking to rectify all forms of illegal cost collection
committed by all statutory courts of Ohio. They specifically alleged that the
Berea Municipal Court had impermissibly assessed costs against Glick on charges
that were dismissed, in violation of R.C. 2947.23,4 that the Berea court had
improperly charged certain costs on the authority of journal entries rather than
court rule, and that the court had assessed “special projects costs” at the wrong
time during the proceedings, in violation of R.C. 1901.26.
4. R.C. 2947.23 requires courts in criminal cases to impose the costs of prosecution as part of a
sentence. The version of R.C. 2947.23 in effect at the time of Glick’s sentence provided:
“(A)(1) In all criminal cases, including violations of ordinances, the
judge or magistrate shall include in the sentence the costs of prosecution and
render a judgment against the defendant for such costs.”
150 Ohio Laws, Part V, 8412.
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{¶ 17} Next, the plaintiffs asserted that res judicata did not apply, because
the court’s erroneous assessment of costs rendered the judgments void and
because equity should not require individual appeals when the expense would so
heavily outweigh the costs being appealed.
{¶ 18} For the first time, the plaintiffs also alleged that Glick’s sentencing
entry did not order costs that were eventually charged to him and that therefore
(1) those costs must have been assessed by the clerk rather than by the judge and
(2) the entry gave Glick no opportunity to appeal the costs. The plaintiffs pointed
to two 2006 newspaper articles wherein Wohl was quoted as saying that
defendants at the Berea Municipal Court pay court costs on a per-charge basis and
that he does not feel sorry for them, because the costs were the results of the
defendants’ bad decisions. The plaintiffs concluded that Wohl had gone rogue,
assessing costs upon dismissed charges “to further his own agenda.”
{¶ 19} The plaintiffs argued that declaratory relief is appropriate to resolve
a disagreement over the interpretation of a statute, and restitution is appropriate in
an action alleging the wrongful collection of funds by a state-government entity.
The plaintiffs contended that they did not have an adequate remedy at law,
because they could not have appealed their defective sentences, and even if they
could have, the appellate process would be prohibitively expensive and an
inefficient use of judicial resources.
{¶ 20} Finally, the plaintiffs argued that their claims were not barred or
mooted by the fact that they had paid the disputed costs, because (1) the class
action is not an appeal of the plaintiffs’ sentences and (2) the voluntary payment
of funds is no bar to an equitable action to disgorge funds wrongfully collected by
the state.
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The Plaintiffs’ Supplemental Motion for Class Certification and
Motion to Certify a Class of Defendants
{¶ 21} In order to reconcile their proposed class definition with their new
arguments, the plaintiffs filed a motion in February 2007 for an alternative class
definition. This new definition provided more specifics about the unlawful cost-
assessment practices alleged, including (1) the assessment of state costs for each
offense rather than once per case, (2) the assessment of costs for offenses that did
not result in convictions, (3) the assessment of “special projects costs” enacted by
judgment entry rather than an amendment to court rules, and (4) the assessment of
“special projects costs” when the costs are imposed at any time other than “on the
filing of each criminal cause” as required by R.C. 1901.26(B)(1).
{¶ 22} In October 2007, the plaintiffs moved to certify a class of
defendants, proposing that the defendant class be defined as “the clerks of every
municipal, county, and mayor’s court * * * who collected court costs” from any
plaintiff class member “in excess of statutory authority on or after June 8, 1995.”
Judgment Rendered by the Common Pleas Court
{¶ 23} The proceedings in the Cuyahoga County Court of Common Pleas
lay dormant for almost four years—from December 2007 to November 2011.
During that time, the parties filed notices of supplemental authority, including
decisions from this court. See, e.g., Middleburg Hts. v. Quinones, 120 Ohio St. 3d
534, 2008-Ohio-6811, 900 N.E.2d 1005 (holding that the costs of prosecution
may be assessed only once per case pursuant to R.C. 2947.23, but that municipal
special-projects fees may be assessed for each count in a case pursuant to R.C.
1901.26).
{¶ 24} On November 1, 2011, the common pleas court issued an omnibus
decision. In it, the court (1) denied the motions to dismiss filed by the state and
treasurer, (2) denied Wohl’s motion to dismiss for lack of subject-matter
jurisdiction, (3) granted the state and treasurer’s motions for summary judgment,
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(4) partially granted but primarily denied Wohl’s motion for summary judgment,
(5) partially denied and predominantly granted the plaintiffs’ cross-motion for
summary judgment but only as it applied to Glick, (6) denied the plaintiffs’
motion to certify a defendant class, (7) modified the plaintiffs’ amended motion
for class certification in order to identify Glick as the sole class representative and
to redefine the class as limited to individuals who paid improperly charged costs
to the Berea Municipal Court, and (8) certified the class action as modified.
{¶ 25} The common pleas court approached the plaintiffs’ action as one
involving the unlawful assessment and collection of funds by the clerk of courts
under the clerk’s own authority, acting as an administrative officer. The court
thereby compared the plaintiffs’ action to previous equitable claims for restitution
of improperly collected funds by administrative agencies such as the Ohio
Bureaus of Motor Vehicles and Workers’ Compensation. See Santos v. Ohio Bur.
of Workers’ Comp., 101 Ohio St. 3d 74, 2004-Ohio-28, 801 N.E.2d 441; Judy v.
Ohio Bur. of Motor Vehicles, 100 Ohio St. 3d 122, 2003-Ohio-5277, 797 N.E.2d
45. The court rejected Wohl’s argument that the plaintiffs were “essentially
appealing” a municipal court judgment. The court conceded that if the plaintiffs
had requested appellate review of municipal court judgment entries, the court
would have no jurisdiction. Instead, the court addressed the merits, finding that
Wohl was personally improperly assessing costs on his own authority. Because
Wohl is an administrative officer, the court concluded that it had jurisdiction to
review the propriety of his actions under Article IV, Section 4(B) of the Ohio
Constitution.5 However, the court went on to hold that “to the extent the Berea
Municipal Court acted outside its jurisdiction in imposing costs, the order of costs
was made without subject matter jurisdiction and is void ab initio.” As a result,
5. Article IV, Section 4(B) of the Ohio Constitution provides, “The courts of common pleas and
divisions thereof shall have such original jurisdiction over all justiciable matters and such powers
of review of proceedings of administrative officers and agencies as may be provided by law.”
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Glick’s claim was not barred by res judicata, because a void judgment can be
challenged at any time.
{¶ 26} The common pleas court found that the plaintiffs had failed to
present any proof that any clerk had improperly assessed costs associated with
state funds, and it therefore granted judgment to the defendants on all claims
related to R.C. 2743.70(A) and 2949.091(A). Concluding that the state and the
treasurer did not improperly collect or retain any funds from the plaintiffs, the
court dismissed the state and treasurer from the case.
{¶ 27} Because Wohl was the sole remaining defendant in the action, the
court considered the plaintiffs’ cross-motion for summary judgment only as it
applied to Glick. The court declared that a portion of the costs that Wohl had
assessed against Glick violated R.C. 2947.23 and 1901.26 and that it had the
authority to order the return of funds that were improperly collected by a
governmental entity. Thus, it ordered Wohl, in his official capacity as the clerk of
the Berea Municipal Court, to return $85 of the costs that he had improperly
collected from Glick.
{¶ 28} In deciding to provide injunctive relief, the trial court found that it
would be an inefficient use of court resources to require defendants to file appeals
in each case that the Berea Municipal Court charges costs improperly and that the
improper costs were not included in final sentencing entries. The trial court
prohibited Wohl from assessing costs in violation of R.C. 1901.26 or 2947.23.
Appeal to the Eighth District Court of Appeals
{¶ 29} Wohl asserted nine assignments of error on appeal. His central
claims were that the common pleas court lacked subject-matter jurisdiction to
provide the requested declaratory and equitable relief and that it had granted class
certification erroneously. The Eighth District confined its analysis to the class-
certification issue, which it considered to be dispositive.
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{¶ 30} The court first held that costs are part of a final, appealable
sentencing order and that the unlawful assessment of costs presents a voidable,
rather than a void, act. Even when a judgment is void, the court held, “the remedy
lies in a direct appeal, not a collateral attack on the judgment in a different court,”
and the common pleas court has no power to review a municipal court decision.
2012-Ohio-2391, ¶ 18, 22-23. Because the plaintiff class representatives had
already paid the disputed costs and never pursued an appeal, their claims were
defeated by the doctrines of res judicata and mootness. As a result, the plaintiffs’
action did not involve a live controversy, and without a controversy, the court of
common pleas had no subject-matter jurisdiction and, ultimately, no authority to
certify the class action. The Eighth District therefore reversed the judgment and
remanded the case to the common pleas court with instructions to vacate its
judgment granting class certification and to grant Wohl’s motion for summary
judgment.
This Court Grants Review
{¶ 31} Glick now seeks this court’s review, asserting that the Eighth
District’s decision subverted decades of Ohio jurisprudence and created a new
rule that void judgments are subject to res judicata and therefore cannot be
collaterally attacked. Glick argues that the portion of a sentencing judgment that
contains an assessment of court costs in excess of statutory authority is void and
that void judgments are nullities subject to collateral attack.
{¶ 32} Although the Eighth District’s brief discussion of possible
remedies for void judgments was problematic, we conclude from our review of
this case that adopting Glick’s propositions of law would not justify reversal. We
therefore affirm the judgment of the Eighth District Court of Appeals.
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ANALYSIS
The Nature of the Plaintiffs’ Action
{¶ 33} The plaintiffs’ action was able to progress as far as it did largely
due to creative pleadings and a multilayered attack. On one level, the plaintiffs
justified their demand for disgorgement of funds by purporting to target an
administrative error, i.e., one that arose from the clerk’s alleged misfeasance. But
on another level, the plaintiffs attempted to avoid procedural defeat by portraying
the error as a judicial issue and claiming that the ultimate judgment was rendered
void as a result of the error. In order to resolve this case, we must first clarify
what this case is and what it is not. To do so, we must examine the facts, the
parties remaining after summary judgment (Glick and Wohl), and the nature of
the relief requested.
{¶ 34} The sole remaining defendant was Wohl, in his official capacity as
the clerk of the Berea Municipal Court. As a clerk of courts, Wohl had the
authority and the duty to enforce the court’s judgments for costs. R.C.
1901.31(E) and (F). See also State v. White, 103 Ohio St. 3d 580, 2004-Ohio-
5989, 817 N.E.2d 393, ¶ 5-6; Hocking Valley Ry. Co. v. Cluster Coal & Feed Co.,
97 Ohio St. 140, 143, 119 N.E. 207 (1918). A clerk of courts has no discretion.
State ex rel. McKean v. Graves, 91 Ohio St. 23, 24, 109 N.E. 528 (1914).
Although the clerk may collect costs, only a court may assess costs. R.C.
1901.26; White at ¶ 8. Wohl therefore had no authority to alter the costs assessed
by the court, irrespective of whether the court’s assessment complied with
statutory requirements, because such an act would violate the statutory provisions
conferring judicial power on the Berea Municipal Court pursuant to Article IV,
Section 1 of the Ohio Constitution. R.C. 1901.01 and 1901.20.
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{¶ 35} Glick, the sole remaining plaintiff,6 paid court costs for a sentence
imposed by the Berea Municipal Court. Glick purported to represent a class of
plaintiffs who likewise had paid court costs charged pursuant to sentences
imposed by the Berea Municipal Court. Glick’s action against Wohl was
premised primarily on two alleged facts: (1) Wohl’s act, as an administrative
officer, of personally creating and implementing a cost-assessment policy and (2)
the resulting collection of costs in violation of R.C. 1901.26 and 2947.23.
{¶ 36} Although Glick implied that his injury arose from an administrative
act and could only be resolved through equitable remedies, his request for relief
shows that this is not the case. The relief Glick requested is possible only if the
common pleas court vacates some portion of the municipal court judgment
pursuant to a review of its validity, i.e., only if the court exercises powers
reserved exclusively for an appellate court. An examination of Glick’s arguments
before the trial court makes this conclusion inevitable.
{¶ 37} In the amended complaint and cross-motion for summary
judgment, Glick prayed for relief in the form of (1) a declaration that Wohl acted
unlawfully when he billed Glick for costs associated with a judgment from the
Berea Municipal Court, (2) an injunction prohibiting Wohl from assessing costs
on a per-charge basis or on dismissed charges, and (3) an order directed at both
the Berea Municipal Court and Wohl to return the unlawful court costs. By
asserting error in the imposition of costs, Glick was attacking a portion of his
sentence. And by requesting the return of a portion of the costs that he had paid
to satisfy the municipal court’s judgment, Glick was seeking a partial vacatur of
the judgment.
6. Although the merit brief was submitted to this court on behalf of all three original plaintiffs, the
arguments presented relate only to Glick. No argument is made that the trial court erred in
dismissing all defendants except Wohl, and Glick is the only plaintiff who alleges that he was
harmed by Wohl.
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{¶ 38} Regardless of how an action is labeled, the substance of the party’s
arguments and the type of relief requested determine the nature of the action.
State ex rel. Zupancic v. Limbach, 58 Ohio St. 3d 130, 132, 568 N.E.2d 1206
(1991) (this court will look beyond the pleadings to ensure that a mandamus
complaint is not a disguised request for a prohibitory injunction); Ketcham v.
Miller, 104 Ohio St. 372, 136 N.E. 145 (1922), syllabus (where the cause of
action and request for damages sound in contract, pleadings that are couched in
the vocabulary of torts do not change the actual nature of the action).
{¶ 39} Costs are part of a defendant’s final, appealable judgment entry of
sentence. State v. Threatt, 108 Ohio St. 3d 277, 2006-Ohio-905, 843 N.E.2d 164,
at paragraph four of the syllabus (“A sentencing entry is a final appealable order
as to costs”); R.C. 2947.23(A)(1)(a) (“In all criminal cases, including violations
of ordinances, the judge or magistrate shall include in the sentence the costs of
prosecution, * * * and render a judgment against the defendant for such costs”);
see also Middleburg Hts. v. Quinones, 120 Ohio St. 3d 534, 2008-Ohio-6811, 900
N.E.2d 1005, at paragraph one of the syllabus (costs are the fees that “statutes
authorize to be taxed and included in the judgment or sentence”).
{¶ 40} With the nature of Glick’s action now clarified, we continue on to
discuss its merits.
Declaratory Judgment Is Not an Available Remedy
{¶ 41} The court of common pleas did not have the authority to grant the
relief requested in Glick’s class-action lawsuit. As a court of general jurisdiction,
the Cuyahoga County Court of Common Pleas has the power to entertain “ ‘ “all
matters at law and in equity that are not denied to it.” ’ ” BCL Ents., Inc. v. Ohio
Dept. of Liquor Control, 77 Ohio St. 3d 467, 469, 675 N.E.2d 1 (1997), quoting
Schucker v. Metcalf, 22 Ohio St. 3d 33, 34, 488 N.E.2d 210 (1986), quoting
Saxton v. Seiberling, 48 Ohio St. 554, 558-559, 29 N.E. 179 (1891). Glick was
able to initially secure the common pleas court’s jurisdiction to entertain his class
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action by purporting to request purely equitable relief and by portraying the cause
of action as targeting a policy or decision made by an administrative government
official that conflicted with statutory mandates, similar to the causes of action in
Santos v. Ohio Bur. of Workers’ Comp., 101 Ohio St. 3d 74, 2004-Ohio-28, 801
N.E.2d 441, and Judy v. Ohio Bur. of Motor Vehicles, 100 Ohio St. 3d 122, 2003-
Ohio-5277, 797 N.E.2d 45. As a result, the common pleas court did not patently
and unambiguously lack jurisdiction. It had the right to determine the bounds of
its own jurisdiction, and any error in that determination could be remedied upon
appeal. See State ex rel. Miller v. Lake Cty. Court of Common Pleas, 151 Ohio
St. 397, 86 N.E.2d 464 (1949), paragraph three of the syllabus.
{¶ 42} A common pleas court generally has the power under the
Declaratory Judgments Act to “declare rights, status, and other legal relations,”
and its “declaration has the effect of a final judgment or decree.” R.C.
2721.02(A). But it must be remembered that the common pleas court has the
power to grant declaratory relief only if “such relief is already within its
jurisdiction to grant.” Malloy v. Westlake, 52 Ohio St. 2d 103, 105, 370 N.E.2d
457 (1977). The declaratory-judgment statutes “do not extend the jurisdiction as
to the subject matter upon which a court may act,” but instead “extend the power
of the court to grant declaratory relief within its respective jurisdiction.” State ex
rel. Foreman v. Bellefontaine Mun. Court, 12 Ohio St. 2d 26, 28, 231 N.E.2d 70
(1967).
{¶ 43} The act states:
[A]ny person whose rights, status, or other legal relations
are affected by a constitutional provision, statute, [or] rule * * *
may have determined any question of construction or validity
arising under the * * * constitutional provision, statute, [or] rule,
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* * * and obtain a declaration of rights, status, or other legal
relations under it.
R.C. 2721.03. The purpose of the act is to provide a mechanism by which parties
can “eliminate uncertainty regarding their legal rights and obligations” quickly
and conclusively. Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio St. 3d
133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 8.
{¶ 44} Although the purpose of the act is to declare rights in the face of
uncertainty, it is well settled that declaratory judgment is not a proper vehicle for
determining whether rights that were previously adjudicated were properly
adjudicated. Clark v. Memolo, 174 F.2d 978, 981 (D.C.Cir.1949); Olney v. Ohio,
341 F.2d 913 (6th Cir.1965); Shannon v. Sequeechi, 365 F.2d 827, 829 (10th
Cir.1966); Wilson v. Collins, 10th Dist. Franklin No. 10AP-511, 2010-Ohio-6538,
¶ 9; State v. Brooks, 133 Ohio App. 3d 521, 525, 728 N.E.2d 1119 (4th Dist.1999);
Moore v. Mason, 8th Dist. Cuyahoga No. 84821, 2004-Ohio-1188, ¶ 14; Gotel v.
Ganshiemer, 11th Dist. Ashtabula No. 2008-A-0070, 2009-Ohio-5423, ¶ 44;
Burge v. Ohio Atty. Gen., 10th Dist. Franklin No. 10AP-856, 2011-Ohio-3997,
¶ 10. For direct and collateral attacks alike, declaratory judgment is simply not a
part of the criminal appellate or postconviction review process. Wilson at ¶ 9;
Brooks at 525-526; Moore at ¶ 14; Gotel at ¶ 44. Ohio’s Criminal Rules and
statutes provide for the direct review of criminal judgments through appeal, and
collateral attacks through postconviction petitions, habeas corpus, and motions to
vacate. Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St. 3d 375, 2007-
Ohio-5024, 875 N.E.2d 550, ¶ 20. A declaratory-judgment action cannot be used
as a substitute for any of these remedies. Clark at 981; Shannon at 829; Wilson at
¶ 9; Moore at ¶ 14; Gotel at ¶ 44; Burge at ¶ 10.
{¶ 45} In the present case, Glick’s criminal proceedings had come to a
final conclusion, as had the proceedings of the members of the plaintiff class.
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Although the trial court did not err in initially entertaining this case, it erred in
proceeding to decide it on its merits. Upon review of the merits and underlying
facts, it is clear that the plaintiffs were not actually asking for disgorgement of
funds wrongfully held as a result of an invalid policy promulgated by an
administrative officer. Instead, they were asking the court to partially vacate
final, unappealed judgments. Regardless of the character or severity of an error in
a judgment entry, and regardless of whether that error renders the judgment void
or voidable, the criminal appellate and postconviction review processes remain
the sole avenues for redress. Declaratory judgment was therefore unavailable as a
means of reviewing and vacating a portion of the costs imposed as part of Glick’s
sentence.
Clarification of the Eighth District’s Holding
{¶ 46} The Eighth District Court of Appeals declined to address the
inapplicability of declaratory relief and other larger problems with the plaintiffs’
action, and instead opted to reverse the trial court’s decision on narrower grounds.
In doing so, the appellate court approached the case as if it were a postconviction
motion to vacate a void judgment. It was in this context that the Eighth District
held that “whether [a judgment is] void or voidable, the remedy lies in a direct
appeal, not a collateral attack on the judgment in a different court.” 2012-Ohio-
2391, ¶ 18. The statement that void judgments are not open to collateral attack
and that attacks on void judgments can be defeated by the doctrine of res judicata
is mistaken. A void judgment is a nullity and open to collateral attack at any time.
State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 40; Tari
v. State, 117 Ohio St. 481, 494, 159 N.E. 594 (1927). Any court in any
jurisdiction certainly has the right to decline to recognize the validity of a void
judgment of any other court. But whether a void judgment has come before a
court through a proper vehicle and whether a court has the authority to provide the
relief requested against the void judgment are different matters.
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January Term, 2014
{¶ 47} There are various scenarios in which a court might have
jurisdiction over an issue that provides the court with the opportunity to declare
the judgment of any other court to be void. For instance, in a proper case, a court
may refuse to enforce the void judgment of another court or prevent a party from
executing upon the judgment. See, e.g., In re Lockhart, 157 Ohio St. 192, 193,
105 N.E.2d 35 (1952) (ordering prisoner’s release under void sentence in habeas
corpus proceedings); Thiessen v. Moore, 105 Ohio St. 401, 422, 137 N.E. 906
(1922) (in action to quiet title over property, prior order conveying the property
was disregarded as void); Fifth Third Bank, N.A. v. Maple Leaf Expansion, Inc.,
188 Ohio App. 3d 27, 2010-Ohio-1537, 934 N.E.2d 366, ¶ 10 (7th Dist.) (noting
that although void foreign judgments cannot be vacated, an Ohio court may refuse
to enforce them). But a void judgment does not by itself create a justiciable
controversy that a court may seize upon and resolve. To be subject to collateral
attack, the judgment must be relevant to the relief sought or to the enforcement of
some right in a controversy properly before the court. See Kingsborough v.
Tousley, 56 Ohio St. 450, 458, 47 N.E. 541 (1897) (“a collateral attack is an
attempt to defeat the operation of a judgment, in a proceeding where some new
right derived from or through the judgment is involved” [emphasis added]). And
the fact that a judgment might be void certainly does not give every court the
authority to directly reverse, vacate, or modify that judgment.
{¶ 48} A court has the inherent authority to vacate its own void
judgments. Patton v. Diemer, 35 Ohio St. 3d 68, 518 N.E.2d 941 (1988),
paragraph four of the syllabus. However, the authority to vacate the void
judgments of another court is exclusively conferred by the Ohio Constitution on
courts of direct review. Ohio Constitution, Article IV, Section 2(B)(2) (“The
supreme court shall have appellate jurisdiction” and the power to “review and
affirm, modify, or reverse” certain judgments); Ohio Constitution, Article IV,
Section 3(B)(2) (“Courts of appeals shall have such jurisdiction as may be
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provided by law to review and affirm, modify, or reverse judgments or final
orders of the courts of record inferior to the court of appeals within the district”).
See also Price v. Hobstetter, 9 Ohio Misc. 238, 243, 213 N.E.2d 753 (C.P.1965)
(“There is certainly no authority, yea, no power, which [a] common pleas court
* * * may assert to vacate a judgment entered in [another] common pleas court
* * *”); State v. Harroff, 8th Dist. Cuyahoga No. 35140, 1976 WL 191092 (July
29, 1976) (“the Common Pleas Court is without jurisdiction to vacate any
judgment of the * * * Municipal Court”).
{¶ 49} We again emphasize that the effect of the judgment from the
Cuyahoga County Court of Common Pleas was to review and vacate a portion of
Glick’s sentencing entry from the Berea Municipal Court. Because the common
pleas court was not empowered either inherently or by Ohio’s Constitution to
provide the requested review and relief, the court lacked jurisdiction to proceed
with the plaintiffs’ case. In this context, the intent of the Eighth District’s holding
is better understood; whether an error in a criminal judgment entry causes a
portion of the judgment to be void or voidable, the remedy lies in a direct or
collateral attack before a court with the authority to vacate the decision, not an
attack on the judgment in a different court with no authority to vacate the
decision.
CONCLUSION
{¶ 50} The Berea Municipal Court’s cost-assessment practices had rightly
come under fire, and this might have been an entirely different case had the merits
come before this court. But we are constrained to review the cause of action as it
was actually presented to us, and we therefore decline to explore the bounds of
jurisdiction in other scenarios.
{¶ 51} Although Glick’s suit was couched in terms traditionally used for
equitable actions against administrative agencies, an inquiry into the substance of
Glick’s action reveals that he was asking the common pleas court to vacate a
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portion of the judgment entry of sentence rendered against him in the Berea
Municipal Court. A court of common pleas has no power to vacate a final order
rendered by a municipal court, and the Cuyahoga County Court of Common Pleas
therefore should have granted summary judgment in favor of all named
defendants and dismissed the plaintiffs’ class action. We therefore affirm the
appellate court’s decision to reverse and remand the case to the common pleas
court with instructions to grant summary judgment for Wohl.
Judgment accordingly.
O’DONNELL, KENNEDY, and FRENCH, JJ., concur.
LANZINGER, J., concurs in judgment only.
PFEIFER and O’NEILL, JJ., dissent.
____________________
O’DONNELL, J., concurring.
{¶ 52} I concur in the majority opinion that a common pleas court has no
authority to review and vacate an order of a municipal court, and that while it
generally does have the power to enter declaratory judgments, which it purported
to do in this matter, it does not have the authority to provide the relief requested
here. However, the subliminal issue in this case concerns the authority of the
municipal court to assess court costs on a per charge basis and on dismissed
charges.
{¶ 53} After being cited for weaving and for operating a motor vehicle
under the influence of alcohol, William Glick agreed to plead guilty to a reduced
charge of reckless operation in exchange for dismissal of the weaving charge.
Prior to accepting the plea agreement, he understood that he would be required to
pay court costs. Glick paid the court costs in cash, and although he noticed that
he paid court costs for the dismissed weaving charge, he never appealed his
conviction or sentence. Rather, he filed a class action and sought declaratory,
injunctive, and restitution relief in the Cuyahoga County Court of Common Pleas.
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{¶ 54} The court of common pleas granted summary judgment in favor of
Raymond J. Wohl, the Clerk of the Berea Municipal Court, on Glick’s claims for
improperly charged costs under R.C. 2949.091(A) and 2743.70(A), granted in
part and denied in part Glick’s motion for summary judgment on count one for
declaratory judgment, and granted in part Glick’s motion for summary judgment
as to count one of the first amended class action complaint.
{¶ 55} More specifically, the court declared that fees collected for the
computer maintenance fund, computer research fund, and construction fund, and a
processing fee constitute “special project” fees and may be assessed on a “per
charge” basis pursuant to R.C. 1901.26(B)(1). However, the court further
declared that Glick was improperly charged general court costs twice and should
have been charged only once, noting that general court costs do not fall under
R.C. 1901.26(B) and must be charged on a “per case basis.” The court also
declared that Glick was improperly charged with fees for computer maintenance,
computer research, and construction on the dismissed charge and with a $2
processing fee.
{¶ 56} The court of common pleas also granted Glick’s motion for
summary judgment on the claim for injunctive relief and ordered Wohl to refrain
from charging costs on dismissed counts, “general court costs” on a per charge
basis, and a processing fee when costs are paid in cash. The court further granted
Glick’s motion for summary judgment on the restitution claim and ordered that
Wohl issue a refund to Glick in the amount of $85.
{¶ 57} Although the court of common pleas determined that some of these
costs were improperly imposed, because Glick failed to properly challenge the
municipal court’s imposition of the court costs, the municipal court’s assessment
of costs in this case remains in effect. Had Glick sought a stay and appealed the
sentence to the court of appeals raising the issue of improper imposition of court
costs, and had one of the parties sought discretionary review in this court, we may
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have reached the issue whether the municipal court properly assessed costs in this
case.7 See State ex rel. Galloway v. Lucas Cty. Court of Common Pleas, 130 Ohio
St.3d 206, 2011-Ohio-5259, 957 N.E.2d 11, ¶ 4 (“any error regarding the
imposition of court costs can be challenged by appeal”); see also Cleveland Hts.
v. Lewis, 129 Ohio St. 3d 389, 2011-Ohio-2673, 953 N.E.2d 278, at ¶ 23-26
(determining that misdemeanant who contested charges at trial, paid the fines and
costs imposed, unsuccessfully sought a stay of execution from the trial court, and
appealed his conviction and whose inactive period of probation expired during the
pendency of the appeal did not voluntarily complete the sentence imposed by the
trial court and thus his appeal did not become moot). Because this appeal derives
from appellate review of a judgment of the court of common pleas, which lacked
the power to grant the relief requested, rather than from an appeal of the
municipal court’s judgment, we are prevented from reviewing whether the
municipal court properly imposed certain costs here.
{¶ 58} However, some of the costs imposed in this case appear to be
problematic. First, the imposition of costs that are not “special project” fees on a
per charge basis raises concerns presented in our decision in Middleburg Hts. v.
Quinones, 120 Ohio St. 3d 534, 2008-Ohio-6811, 900 N.E.2d 1005, at paragraphs
two and three of the syllabus, in which we held that “R.C. 2947.23(A)(1) specifies
that in all criminal cases, judges are to include the costs of prosecution in the
sentence and render a judgment for such costs,” whereas “R.C. 1901.26(B)
authorizes municipal courts by rule to charge a special-projects fee in addition to
all other court costs on the filing of each criminal cause.” (Emphasis sic.)
{¶ 59} Second, although the record is unclear as to whether Glick agreed
to pay the court costs related to the dismissed charge, assessing costs on dismissed
7. Additionally, R.C. 2947.23(C), which became effective March 22, 2013, now provides: “The
court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution,
including any costs under section 2947.231 of the Revised Code, at the time of sentencing or at
any time thereafter.” 2012 Sub.S.B. No. 247.
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charges in the absence of an agreement between the parties also raises concerns.
See Cuyahoga Falls v. Coup-Peterson, 124 Ohio App. 3d 716, 717, 707 N.E.2d
545 (9th Dist.1997) (noting that “there is no authority for a court to assess costs
against a defendant who has not been sentenced, absent an agreement otherwise
between the parties,” and concluding that assessing court costs following
dismissal of criminal charges violates due process).
{¶ 60} Notably, various statutes demonstrate the General Assembly’s
intent to impose certain court costs on charges resulting in convictions but not on
those resulting in dismissals. For example, R.C. 2947.23(A)(1)(a) specifies that
the court must impose certain costs as part of the sentence (“In all criminal cases,
including violations of ordinances, the judge or magistrate shall include in the
sentence the costs of prosecution, including any costs under section 2947.231 of
the Revised Code, and render a judgment against the defendant for such costs”
[emphasis added]). R.C. 2929.01(EE) defines “sentence” as “the sanction or
combination of sanctions imposed by the sentencing court on an offender who is
convicted of or pleads guilty to an offense,” while Black’s Law Dictionary (9th
Ed.2009) defines “sentence” as “[t]he judgment that a court formally pronounces
after finding a criminal defendant guilty; the punishment imposed on a criminal
wrongdoer.” Id. at 1485. Recently, in State v. Harris, 132 Ohio St. 3d 318, 2012-
Ohio-1908, 972 N.E.2d 509, ¶ 28, we stated: “a sentence is a penalty or
combination of penalties imposed on a defendant as punishment for the offense he
or she is found guilty of committing.” Thus, by providing that certain costs be
imposed as part of the sentence, the statute and our case law evince an intent to
impose court costs only on those who are convicted or found guilty, not on those
whose charges are dismissed. See State v. Powers, 117 Ohio App. 3d 124, 128,
690 N.E.2d 32 (6th Dist.1996) (“the intent of [R.C. 2947.23] is to impose costs on
a defendant after his or her conviction”).
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January Term, 2014
{¶ 61} Similarly, R.C. 2949.091 and 2949.094 specify that the court shall
impose certain costs if the defendant is convicted of or pleads guilty to an offense
and shall return costs added to the amount of the bail if the person is not found
guilty or the charges are dismissed. R.C. 2949.091(A)(1)(a) (“The court in which
any person is convicted of or pleads guilty to any offense shall impose one of the
following sums as costs in the case in addition to any other court costs that the
court is required by law to impose upon the offender * * *”); R.C. 2949.091(B)
(“Whenever a person is charged with any offense described in division (A)(1) of
this section, the court shall add to the amount of the bail the thirty, twenty, or ten
dollars required to be paid by division (A)(1) of this section. * * * If the person is
found not guilty or the charges are dismissed, the clerk shall return the thirty,
twenty, or ten dollars to the person”); R.C. 2949.094(A) (“The court in which any
person is convicted of or pleads guilty to any moving violation shall impose an
additional court cost of ten dollars upon the offender”); R.C. 2949.094(C)
(“Whenever a person is charged with any offense that is a moving violation and
posts bail, the court shall add to the amount of the bail the ten dollars required to
be paid by division (A) of this section. * * * If the person is found not guilty or
the charges are dismissed, the clerk shall return the ten dollars to the person”).
{¶ 62} Here, the court of common pleas declared that Glick was
improperly charged with the computer maintenance fee, the computer research
fee, and the construction fee on the dismissed charge. Although R.C. 1901.261,
which pertains to fees for computer services, is silent as to whether fees relating
to computer services are to be assessed on dismissed charges, and R.C.
1901.26(B)(1) provides that the court may charge special project fees “on the
filing of each criminal cause,” it appears to be consistent with the General
Assembly’s intent for courts not to impose court costs on dismissed charges
unless payment of such costs is part of a plea agreement.
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{¶ 63} Thus, although we cannot dispose of the issues pertaining to the
imposition of certain costs in this case, courts that continue to assess court costs
that are not “special project” fees on a per charge basis and to impose costs on
dismissed charges in the absence of a plea agreement run the risk of being
compelled to refund those costs if they are ultimately found to be improperly
assessed.
KENNEDY, J., concurs in the foregoing opinion.
____________________
LANZINGER, J., concurring in judgment only.
{¶ 64} I would accept the reasoning of the court of appeals and therefore
concur in judgment only.
____________________
PFEIFER, J., dissenting.
{¶ 65} This case has me flummoxed. On the one hand, the majority paints
a compelling picture. The law and the facts appear to point in one direction, that
of requiring Glick and any other similarly situated individual to appeal his or her
case in order to challenge the excessive costs. On the other hand, the Berea
Municipal Court has been found to be charging excessive costs, and it is subject
to the authority, both appellate and supervisory, of the Supreme Court of Ohio.
Why can’t we do something about it here and now?
(1)
{¶ 66} A majority of this court and the appellee, the clerk of the Berea
Municipal Court, agree that Glick should have filed a direct appeal. But on what
grounds? Glick does not contest his conviction or the legitimate court costs that
he was required to pay. And in truth there is nothing to contest; he pled guilty and
agreed to pay court costs. So this court must be suggesting that Glick should have
appealed the allegedly unauthorized court costs. But how could he? It does not
appear that the judge in the municipal court assessed the unauthorized charges
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January Term, 2014
that were collected. Glick alleged that the court clerk charged court costs that are
not authorized by statute. That is a void act, a nullity, and there is no reason to
think it constitutes a final, appealable order. See State ex. rel. Carnail v.
McCormick, 126 Ohio St. 3d 124, 2010-Ohio-2671, 931 N.E.2d 110, ¶ 36 (“void
judgments do not constitute final, appealable orders”). Glick had an untenable
choice: either file a frivolous appeal (appealing the imposition of a cost he agreed
to pay) or file no appeal and forgo any remedy because the order was void and
therefore not appealable.
(2)
{¶ 67} Even though the class-action process has been abused at times, the
facts in this case scream out for certification of the class. The facts as alleged
present a classic class-action scenario, even though, if allowed to go forward, the
plaintiffs may ultimately fail to prove their case. Hundreds of parties might have
suffered the same injury, having all been charged excessive fees that were
unauthorized by statute. The excessive fees were so small in each individual case
that seeking redress through the normal legal process was economically unviable.
Glick was assessed $510 in court costs. The lower court found that $85 of the
costs were unauthorized; that finding is undisturbed and remains the law of this
case. Even if all $510 in court costs were unauthorized, it hardly makes economic
sense to force a plaintiff to pay a filing fee (roughly $100), a transcript fee
(roughly $200), and attorney fees for the possible recovery of $510.
{¶ 68} But this court is not allowing the class action to proceed, because
“[a] court of common pleas has no power to vacate an order rendered by a
municipal court.” Majority opinion at paragraph four of the syllabus. The legal
validity of this statement and that of the other paragraphs of the syllabus is
unassailable. I concur in the four paragraphs of syllabus law. But I do not agree
that we are powerless to act in this case.
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{¶ 69} Glick is seeking a declaratory judgment that he was forced to pay
fees that were unauthorized. What else was he supposed to do? As noted above,
he did not have good options. He is also seeking reimbursement of the allegedly
unauthorized fees. If the court of common pleas grants Glick everything he seeks,
it will not affect anything that the judge of the municipal court has done. The
court of common pleas is not attempting to vacate an order of the municipal court;
it is declaring that unauthorized costs were collected and that doing so was a void
act.
{¶ 70} Alas, this court concludes that this is tantamount to reviewing and
vacating a portion of the sentencing entry. But can a court vacate a nullity? By
definition a nullity is something that never happened. The court of common pleas
is not vacating a sentencing order. It is declaring that unauthorized costs were
collected. When sitting in equity, a trial court of this state has jurisdiction to
declare that an act performed on behalf of a court that was unauthorized by statute
is void. See State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d
332, paragraph one of the syllabus (a sentence that is void “may be reviewed at
any time, on direct appeal or by collateral attack”). See also Santos v. Ohio Bur.
of Workers’ Comp., 101 Ohio St. 3d 74, 2004-Ohio-28, 801 N.E.2d 441, syllabus
(“A suit that seeks the return of specific funds wrongfully collected or held by the
state is brought in equity. Thus, a court of common pleas may properly exercise
jurisdiction * * *”).
(3)
{¶ 71} The end result of this case is exactly the opposite of what the
people of Ohio should expect of their government. The people of Ohio expect a
government that acts according to the law. The court of common pleas in this
case found that the Berea Municipal Court acted contrary to law when it
improperly collected multiple special-project costs, improperly charged costs for
offenses that have been dismissed, and improperly charged a credit-card
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January Term, 2014
processing fee for fees paid in cash. All of these actions are unauthorized by
statute. That means that they are illegal. It is also possible, as the complaint
alleged, that other municipal courts are also charging unauthorized fees. That
means that other courts might also be performing illegal acts.
{¶ 72} The majority has thrown its hands in the air and concluded that,
given the posture of this case, “we are constrained to review the cause of action as
it was actually presented to us * * *.” Majority opinion at ¶ 50. I do not agree.
Once we have accepted jurisdiction, it is our duty to provide justice to the parties
before us. In this case, the way to do that is to reinstate the decision of the trial
court, which required the Berea Municipal Court to refrain from illegal activity,
and allow the plaintiffs an opportunity to prove that they are entitled to equitable
redress.
{¶ 73} I would reverse the judgment of the court of appeals and reinstate
the sound decision of the court of common pleas.
O’NEILL, J., concurs in the foregoing opinion.
____________________
Paul W. Flowers Co., L.P.A., and Paul W. Flowers; Bashein & Bashein
Co., L.P.A., and W. Craig Bashein; Plevin & Gallucci and Frank Gallucci III; and
Dworken & Bernstein Co. and Patrick J. Perroti, for appellants.
Climaco, Wilcox, Peca, Tarantino & Garofoli Co., L.P.A., David M.
Cuppage, and Scott D. Simpkins; and James N. Walters, Berea Director of Law,
for appellee.
Peter Galyardt, Assistant Public Defender, urging reversal for amicus
curiae Ohio Public Defender.
Reminger Co., L.P.A., Ronald A. Mingus, and Brent S. Silverman, urging
affirmance for amici curiae Thomas E. Day Jr., Clerk of the Bedford Municipal
Court, Victoria Dailey, Clerk of the Chardon Municipal Court, and Lisa
Mastrangelo, Clerk of the Willoughby Municipal Court.
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Freund, Freeze & Arnold, Wayne E. Waite, and Adam C. Armstrong; and
Theodore A. Hamer III, Kettering Law Director, urging affirmance for amicus
curiae Andrea White, Clerk of the Kettering Municipal Court.
_________________________
30