State ex rel. Andrews v. Lake Cty. Court of Common Pleas

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Andrews v. Lake Cty. Court of Common Pleas, Slip Opinion No. 2022-Ohio-4189.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-4189THE STATE EX REL. ANDREWS, CLERK, v. LAKE COUNTY COURT OF COMMON
PLEAS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Andrews v. Lake Cty. Court of Common Pleas,
Slip Opinion No. 2022-Ohio-4189.]
Prohibition—Mandamus—Clerk of courts—Duties of office—Judges’ journal entry
did not merely direct clerk of courts in the performance of her duties but
effectively prevented the clerk from performing her duties and thus
functionally removed her from her elected office—Writs of prohibition and
mandamus granted and writ of quo warranto denied as moot.
(No. 2022-0409—Submitted October 4, 2022—Decided November 30, 2022.)
IN PROHIBITION, MANDAMUS, AND QUO WARRANTO.
__________________
SUPREME COURT OF OHIO
Per Curiam.
I. INTRODUCTION
{¶ 1} This original action involves a dispute between relator, Lake County
Clerk of Courts Faith Andrews, and respondents, the seven judges of the Lake
County Court of Common Pleas.1 The dispute began when Andrews resisted using
clerk’s office funds for the purchase of computer software to be used by the judges,
but it now centers on Andrews’s behavior within the clerk’s office. Andrews’s
alleged conduct led the judges to issue a journal entry in May 2022 that, among
other things, bans Andrews from entering the Lake County courthouse, where the
clerk’s office is located, except for one day a month.
{¶ 2} Andrews alleges that the judges are preventing her from carrying out
her duties as an elected official and that they have “constructively removed” her
from office. She seeks writs of prohibition, mandamus, or quo warranto to prevent
the judges from interfering with her execution of her duties. The judges have
moved to dismiss Andrews’s amended complaint.
{¶ 3} Ohio law gives a common pleas court jurisdiction to remove a person
from public office based on the person’s alleged misconduct, provided that a
sufficient number of qualified electors have signed a complaint and filed it in the
court. See R.C. 3.08. Here, no evidence has been presented that such a complaint
has been filed seeking to remove Andrews from office. Because the judges have
effectively removed Andrews from her office without jurisdiction to do so, we deny
their motion to dismiss. We issue a writ of prohibition vacating the judges’ May
2022 journal entry and prohibiting the judges from imposing similar restrictions
1. The respondent judges are Judge Eugene A. Lucci, Judge Vincent A. Culotta, Judge John P.
O’Donnell, Judge Patrick J. Condon, Judge Colleen A. Falkowski, Judge Karen Lawson, and Judge
Mark J. Bartolotta. In addition to the judges, Andrews named as a respondent the Lake County
Court of Common Pleas. Because a court is not sui juris and may not be sued in its own right, the
court of common pleas is not a properly named party in this case. See State ex rel. Ames v. Portage
Cty. Bd. of Commrs., 165 Ohio St.3d 292, 2021-Ohio-2374, 178 N.E.3d 492, ¶ 26.
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against Andrews without jurisdiction. We also issue a writ of mandamus ordering
the judges to vacate the May 2022 entry. We deny as moot Andrews’s request for
a writ of quo warranto.
II. BACKGROUND
{¶ 4} Andrews was elected as the Lake County clerk of courts in November
2020 and began a four-year term in that position in January 2021.
{¶ 5} Later in 2021, Andrews told the county budget director that she did
not want to use funds designated for digitization of court records to help pay for
computer software that would be used exclusively by the judges and their staffs.
After learning of Andrews’s position on the matter, the judges sent Andrews a letter
signed by all of them, explaining how the software was connected to the digitization
of court records and the clerk of courts’ duty to maintain the records. The judges
emphasized that the clerk of courts performs a ministerial function for the benefit
of the court and said they would journalize an order to compel Andrews to provide
the funding if she would not agree to do so.
{¶ 6} In November 2021, Judge Lucci, the court’s administrative judge,
emailed Andrews about the court’s information technology (“IT”) department,
which at the time was funded and supervised jointly by the court and the clerk.
Judge Lucci told Andrews that she “must comply with the terms” of a draft journal
entry (hereafter, “the November entry”), which the judge had attached to the email,
and which was not signed but included the names of Judges Lucci, Culotta,
O’Donnell, Condon, and Falkowski. Judge Lucci emphasized that the entry was
only a draft and had not been filed, but he told Andrews that if she did not comply,
those judges would “sign the order, file it, and enforce it upon any further
violation.”
{¶ 7} The draft entry directed the clerk to continue to “pay one-half of the
costs associated with the operation of the Court[’s] IT department.” It also stated
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that Andrews had “engaged in conduct unbecoming of her office that undermines
the mission of the court” by
swearing in areas within earshot of the public and visitors to the
court[;] expos[ing] her office to complaints, litigation, and other
claims[;] risk[ing] voluntary resignation of employees under hostile
conditions and involuntary termination without just cause[;]
subject[ing] her employees to such a degree of anxiety where their
work product, and thus, the maintenance of court files and papers, is
degraded[;] and diminish[ing] public confidence in the courts, as
well as the public image of and respect for the court.
The draft entry provided that the court’s IT department would serve the court and
the clerk’s legal division, but not the clerk’s title division. Further, it stated that the
court’s IT department “shall be under the sole and exclusive supervision and
direction of the judges” and that the clerk “shall have no authority to supervise,
interfere with, admonish, direct, hire, discipline, or terminate” any employee in the
IT department. The draft entry stated that any violation of the order by the clerk
would be considered contempt of court, punishable by a fine or incarceration.
{¶ 8} In early March 2022, Andrews requested a meeting with Judge Lucci
to discuss her office’s annual report. When Andrews arrived for the meeting on
Friday, March 4, she was directed to Judge Lucci’s courtroom, where the judge was
sitting on the bench and the other judges had gathered. Andrews alleges that Judge
Lucci criticized her and told her that her staff was “terrified” of her. She says that
she was not given an opportunity to respond. At the meeting, she was given a letter
and a journal entry, the latter of which had been signed by Judges Lucci, Culotta,
O’Donnell, Condon, and Falkowski but had not been filed. According to Andrews,
when the meeting was over, she was told that she “had to leave the courthouse by
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4pm or face arrest for criminal trespass.” She says that she was then escorted out
of the courtroom by two deputy sheriffs.
{¶ 9} In their letter to Andrews, the judges stated that they had “investigated
a multitude of claims and allegations, and ha[d] determined that the operation of
the court is best served if the performance of your duties as clerk of courts is
modified.” The letter stated that the accompanying journal entry contained “what,
in the exhaustive and considered opinion of all of the judges served by you, is
necessary for the continued existence and operation of the court, and without which,
the court cannot operate as required by the Ohio constitution and law.” In the letter,
the judges directed Andrews to review the entry and—by noon on Sunday, March
6—inform Judge Lucci whether she would comply with its terms. The judges said
that if Andrews would not agree to comply with the entry, they would “immediately
journalize and enforce [it] to the fullest extent of [their] authority.”
{¶ 10} The unfiled entry (hereafter, “the March entry”) reported that seven
deputy clerks had resigned in the past year, and the entry provided details from
interviews with current and former deputy clerks. Among other things, the entry
alleges:
• “The clerk has regularly and frequently engaged in profanity laced
explosive tirades in the presence of employees and visitors to the office of
the clerk.”
• “As a result of the behavior of the clerk of courts, as detailed throughout
this order, employees of the clerk are exhibiting physical manifestations of
the increased stress, including massive headaches and stomach distress,
nausea, vomiting, weeping at their desks, loss of sleep and appetite,
digestive issues, and increasing anxiety. Employees are beginning to take
medications that they never used before to help them sleep. Employees are
drinking more than usual to cope with the stress. Employees begin feeling
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dread on Sunday evening about having to come to work the following day.
They are breaking down in tears over the stress and the apprehension of
being belittled in front of other staff.”
• “Employee mental health and productivity are being affected, and they are
complaining of symptoms such as post-traumatic stress, especially when the
clerk slams or pounds her fists on a table or countertop accompanied by the
use of the vilest and foul language, including the words, ‘f—k’, ‘c—t’, and
‘s—t.’ She frequently calls people ‘c—ts’ and ‘bitches.’ ”
• “The clerk exhibits paranoid behavior, which has a deleterious effect upon
the deputy clerks, leaving them with the feelings that they are not trusted
and/or cannot perform their duties without extreme surveillance. The clerk
has required members of the court’s information technology department to
audio record, and inform vendors of the requirement to audio record, all
conversations between them and the members of the I.T. department * * *.”
• “Employees are fearful to approach the judges about their concerns because
they believe they will be fired if the clerk finds out. The clerk tells
employees that she has ‘something’ (presumably, evidence of crimes,
ethical violations, or other wrongdoing) on all of the judges and that, if the
clerk ‘goes down,’ she is ‘taking the judges with her.’ It is reasonable to
surmise that her purpose in so saying this is to discourage employee
complaints to the judges * * *.”
• “The clerk makes statements, perhaps in a failed attempt at humor, about
‘taking (employees) out back and shooting (them).’ Employees are fearful
for their own safety in the workplace, and have requested that the clerk go
through security like all other employees. The employees are ‘very scared
of (the clerk) and what she is capable of doing to (them) and (their) fellow
co-workers.’ ”
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{¶ 11} Based on the information they received, the judges gave Andrews
numerous “directives,” including:
• “The clerk of courts may be physically present in the office of the clerk in
the courthouse (West Annex) on the first business day of each month,
between the hours of 8:30 a.m. and 4:00 p.m. to perform the duties of clerk
of courts, subject to the restrictions and provisions set forth in this entry.
The clerk may not be present in the courthouse at any other time or day.
The supervising deputy clerks of court shall oversee the day-to-day
operations of the court.”
• “The clerk shall not: (1) terminate, remove, discipline, or suspend any
employee from employment; (2) withhold from any employee any salary
increases or employee benefits to which the employee is otherwise entitled;
(3) transfer or reassign any employee; (4) deny any employee a promotion
that otherwise would have been received; or (5) reduce any employee in pay
or position, without prior consultation with, and the concurrence of, the
administrative judge of the general division or the domestic relations
judge.”
• “The clerk shall not make public statements or accusations about allegations
she may have about criminal or other illegal activities occurring within the
office of the clerk of courts, or by predecessors in the office of the clerk of
courts, unless in consultation with, or requested by, the prosecutor’s office
or law enforcement as part of a bona fide investigation.”
{¶ 12} On March 5, Andrews agreed to abide by the terms of the unfiled
March entry. On March 23, Judge Lucci emailed Andrews, directing her not to
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occupy a particular noncourthouse office because some of the clerk’s legal-division
employees work there.
{¶ 13} On April 18, Andrews filed this action, seeking a writ of mandamus
to compel Judges Lucci, Culotta, O’Donnell, Condon, and Falkowski to vacate the
unsigned and unfiled draft November entry, the unfiled March entry, and the
directive that Judge Lucci sent to her by email on March 23. Andrews also sought
a writ of prohibition to prevent the judges from enforcing the entries and directives.
{¶ 14} On April 29, Andrews notified the judges that she would be returning
to her courthouse office fulltime on May 3. She returned to the office on Monday,
May 2 (as she was allowed to do under the judges’ directive), and again on May 3.
{¶ 15} On May 4, all seven judges signed and filed with the court a 26-page
journal entry (hereafter, “the May entry”) that repeats many of the allegations
contained in the unfiled March entry and includes additional information related to
Andrews’s interactions with the court’s IT department (some of which is similar to
what was included in the unsigned and unfiled draft November entry). The May
entry states that “the judges have continued receiving substantial, credible reports
that the clerk continues her abuse of employees and engages in other conduct
unbecoming [of] her office.” And it states that the judges found that Andrews “is
unable to perform the duties” of her office and “is engaging in conduct which
threatens and is detrimental to the operation and mission of the courts.”
{¶ 16} The May entry explains that seeking Andrews’s removal from office
under R.C. 3.08 would require the signatures of more than 14,000 Lake County
electors and that “[s]uch a removal action would fail to provide a timely remedy.”
It then orders Andrews to abide by many of the same limitations she had previously
agreed to, including that Andrews’s presence at the courthouse shall be restricted
to only one day a month, that the supervising deputy clerks shall oversee the day-
to-day operations of the clerk’s legal division, that Andrews shall be prohibited
from making certain management decisions regarding the legal division’s
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employees without the concurrence of the administrative judge, that Andrews shall
be prohibited from managing personnel in the court’s IT department, and that
Andrews shall be prohibited from making “unsupported public statements or
accusations” of criminal activity “occurring within the legal division * * * or by
predecessors in the legal division.” The entry states that any violation of its terms
will subject Andrews to a show-cause hearing regarding why she should not be held
in contempt, at which three of the respondent judges would determine all the issues.
It also states that the court will issue additional entries each month “identify[ing]
relevant changes to the circumstances outlined [in the May entry], as well as an
analysis of whether the directives within th[e] [e]ntry are ripe for modification.”
{¶ 17} On May 10, Andrews filed an amended complaint,2 seeking a writ
of prohibition to prevent the judges from enforcing the “Improper Journal Entries,”
from exercising judicial power in connection with the entries, and from
constructively removing her from office. Andrews also seeks a writ of mandamus
compelling the judges to vacate the entries. In the alternative, Andrews seeks a
writ of quo warranto “restoring her to her elected office.”
{¶ 18} The judges moved to dismiss the amended complaint. Andrews
opposes the motion to dismiss. The Ohio Clerk of Courts Association, as amicus
curiae, has filed a memorandum urging denial of the judges’ motion to dismiss and
granting of the writ.
III. ANALYSIS
{¶ 19} In considering the judges’ motion to dismiss, we must presume that
Andrews’s factual allegations and the documents incorporated into her amended
complaint are true, and we must make all reasonable inferences in Andrews’s favor.
See Volbers-Klarich v. Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-
2. Andrews filed her original complaint against the five judges who signed the unfiled March entry.
Two additional judges (Judges Lawson and Bartolotta) signed the May entry, and Andrews added
them as respondents in her amended complaint.
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2057, 929 N.E.2d 434, ¶ 12. We may dismiss this action only if it appears beyond
doubt that Andrews can prove no set of facts entitling her to relief. See State ex rel.
Brady v. Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, 832 N.E.2d 1202, ¶ 6.
A. Prohibition
{¶ 20} To be entitled to a writ of prohibition, a relator usually must establish
by clear and convincing evidence (1) that the respondent is about to exercise
judicial or quasi-judicial power without authority, (2) that the exercise of that power
is unauthorized by law, and (3) that the relator has no adequate remedy in the
ordinary course of the law. State ex rel. Sliwinski v. Burnham Unruh, 118 Ohio
St.3d 76, 2008-Ohio-1734, 886 N.E.2d 201, ¶ 7; State ex rel. Evans v. McGrath,
153 Ohio St.3d 287, 2018-Ohio-3018, 104 N.E.3d 779, ¶ 4. Andrews, however,
primarily seeks to undo the judges’ actions. For a corrective writ of prohibition to
issue, Andrews must demonstrate that the judges patently and unambiguously
lacked jurisdiction to take the actions of which she complains. See State ex rel.
Feltner v. Cuyahoga Cty. Bd. of Revision, 160 Ohio St.3d 359, 2020-Ohio-3080,
157 N.E.3d 689, ¶ 6, 8 (lead opinion). We therefore need not determine whether
Andrews has an adequate remedy in the ordinary course of the law. See State ex
rel. Koren v. Grogan, 68 Ohio St.3d 590, 595, 629 N.E.2d 446 (1994).
1. Exercise of judicial power
{¶ 21} Andrews seeks a writ of prohibition to prevent the judges “from
enforcing any term, directive, or order” in its “Improper Journal Entries * * *
including, but not limited to, the journalized May [entry], and to prevent [the
judges] from exercising judicial power in connection with any of them.” Andrews
does not precisely define the term “Improper Journal Entries,” but she appears to
refer to the unsigned and unfiled draft November entry, the unfiled March entry,
and the journalized May entry. The judges do not dispute that the May entry was
an exercise of judicial power, but they argue that their actions relating to Andrews
that predated the issuance of the May entry were not exercises of judicial power.
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{¶ 22} In opposing the judges’ motion to dismiss, Andrews does not argue
that the unsigned and unfiled draft November entry was an exercise of judicial
power, but she does argue that the judges exercised judicial power when Judge
Lucci gave her an ultimatum in his courtroom on March 4 demanding that she agree
to abide by the terms of the signed but unfiled March entry or else the entry would
be filed and enforced. Andrews argues that the judges exercised judicial power at
that time under the standard discussed in State ex rel. Fiser v. Kolesar, 164 Ohio
St.3d 1, 2020-Ohio-5483, 172 N.E.3d 1, ¶ 11, 13-14.
{¶ 23} We reject this argument for two reasons. First, Fiser is
distinguishable from the facts of this case because it involved a journalized entry.
See id. at ¶ 5. Here, the judges did not exercise judicial power in March because
they did not file the March entry. See Civ.R. 58(A)(1) (“A judgment is effective
only when entered by the clerk upon the journal”). Second, even if we were to
credit Andrews’s argument that the judges threatened in March to exercise judicial
power, it is evident that the judges followed through on that threat when they
journalized the May entry. The May entry, in other words, constituted the judges’
fulfillment of what they had threatened to do.
{¶ 24} Accordingly, the May entry is the only entry at issue regarding the
requested writs.
2. Patent and unambiguous lack of jurisdiction
{¶ 25} This court has long recognized that a clerk of courts “is only an arm
of the court,” State ex rel. McKean v. Graves, 91 Ohio St. 23, 24, 109 N.E. 528(1914), and that a clerk’s duties are “ministerial,” State ex rel. Glass v. Chapman,
67 Ohio St. 1, 6, 65 N.E. 154 (1902). Moreover, R.C. 2303.26 provides that “in the
performance of official duties the clerk [of the court of common pleas] shall be
under the direction of the court.”
{¶ 26} Andrews does not dispute that the judges have some authority to
direct her performance under R.C. 2303.26. She argues, however, that the judges
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have exceeded that authority. She contends that the May entry prevents her from
performing her duties as the clerk and that the judges have effectively removed her
from office.
{¶ 27} Ohio law vests common pleas courts with jurisdiction to remove a
public officer from office. See R.C. 3.08. The standard for doing so is prescribed
in R.C. 3.07, which provides that an officeholder may be removed from office if a
judge or jury finds the officeholder guilty of “misconduct in office” for “willfully and
flagrantly exercis[ing] authority or power not authorized by law, [or] refus[ing] or
willfully neglect[ing] to enforce the law or to perform any official duty imposed upon
him by law.” See also R.C. 3.08. Removal from office also may be based on an
officeholder’s “gross neglect of duty, gross immorality, drunkenness, misfeasance,
malfeasance, or nonfeasance.” R.C. 3.07.
{¶ 28} A common pleas court’s jurisdiction to remove a person from public
office is invoked only when a sufficient number of qualified electors have signed a
complaint and filed it in the court. See R.C. 3.08; see also State v. Mbodji, 129
Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 12 (stating that the filing of
a complaint invokes a court’s jurisdiction). Moreover, establishing personal
jurisdiction in a removal action requires service of the complaint on the
officeholder. See R.C. 3.08; see also State ex rel. Ballard v. O’Donnell, 50 Ohio
St.3d 182, 553 N.E.2d 650 (1990), paragraph one of the syllabus (holding that a
court lacks jurisdiction to render judgment against a person who was not served
summons, did not appear, and was not made a party to the case).
{¶ 29} Andrews argues that the judges lack subject-matter and personal
jurisdiction to remove her from office absent the filing of a case against her under
R.C. 3.08. She points out that in the May entry, the judges stated that a proceeding
under R.C. 3.08 would require the signatures of more than 14,000 Lake County
electors and that “a removal action would fail to provide a timely remedy.” The
judges dispute Andrews’s assertion that they have removed her from office; they
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argue that they have simply told Andrews how to perform her duties as the clerk of
courts. In other words, the judges do not claim that they have jurisdiction to remove
Andrews from office absent proceedings under R.C. 3.07 and 3.08.
{¶ 30} Yet the judges’ May entry does just that. As an elected official, a
clerk of courts occupies a public office distinct from the court and its judges. See
R.C. 2303.01; State ex rel. Ware v. Kurt, ___ Ohio St.3d ___, 2022-Ohio-1627, ___
N.E.3d ___, ¶ 15. But certain provisions in the judges’ entry give ultimate control
of the clerk’s legal division to the judges, thereby undermining the independence
of Andrews’s office and preventing Andrews from doing her job.
{¶ 31} To start, paragraph No. 100 of the May entry prohibits Andrews
from being in the clerk’s legal-division offices, including the clerk’s courthouse
office, except for one day a month. That paragraph also provides that “[t]he
supervising deputy clerks of court shall oversee the day-to-day operations of the
court.” In addition, paragraph No. 111 of the entry provides:
The clerk shall not: (1) terminate, remove, discipline, or
suspend any legal division employee from employment; (2)
withhold from any legal division employee any salary increases or
employee benefits to which the employee is otherwise entitled; (3)
transfer or reassign any legal division employee; (4) deny any legal
division employee a promotion that otherwise would have been
received; or (5) reduce any legal division employee in pay or
position, without prior consultation with, and the concurrence of, the
administrative judge of the general division or the presiding judge.
The clerk shall not hire any new legal division employee without
prior consultation with, and the concurrence of, the administrative
judge of the general division.
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{¶ 32} R.C. 2303.05 authorizes a clerk of courts to “appoint one or more
deputies.” A “deputy” is “[a] person appointed or delegated to act as a substitute
for another, esp. for an official,” Black’s Law Dictionary 556 (11th Ed.2019), or “a
person appointed, nominated, or elected as the substitute of another and empowered
to act for him, in his name, or in his behalf,” Webster’s Third New International
Dictionary 607 (2002). A clerk’s authority to appoint deputies necessarily implies
the clerk’s authority to supervise and manage them. See State ex rel. Minor v.
Eschen, 74 Ohio St.3d 134, 139, 656 N.E.2d 940 (1995) (“the power of removal is
regarded as incident to the power of appointment”); Alf v. Hunsicker, 82 Ohio
App. 197, 80 N.E.2d 511 (1st Dist.1947), paragraph one of the syllabus (“A deputy
clerk of courts holds his appointment at the pleasure of the clerk of courts and his
tenure may be terminated at any time and for any cause”). Yet paragraphs Nos.
100 and 111 of the May entry prevent Andrews from having any meaningful
involvement in or control over the operation of the clerk’s legal division. In fact,
paragraph No. 100 gives certain deputy clerks day-to-day control of the legal
division, and paragraph No. 111 gives ultimate oversight of the office’s legal
division to the administrative judge. These provisions do not merely direct
Andrews in the performance of her duties as the clerk under R.C. 2303.26; they
take away Andrews’s ability to carry out numerous statutory duties imposed on her
as the clerk and make the administrative judge—Judge Lucci—the de facto clerk
of the office’s legal division.
{¶ 33} In addition, paragraph No. 130 of the May entry provides:
The Clerk of Courts shall have no authority to approve,
disapprove, interfere with, diminish, modify, or require the
approval, including prior and post, for the purchase, acquisition, use,
disposal, or retirement of equipment, supplies, hardware, software,
or other technology that has been approved or directed by the judges
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to be purchased, acquired, used, disposed, or retired, whether used
exclusively or in part by the clerk’s office or otherwise.
As a general matter, common pleas courts have the power to order funding that is
necessary to the administration of their business. See State ex rel. Maloney v.
Sherlock, 100 Ohio St.3d 77, 2003-Ohio-5058, 796 N.E.2d 897, ¶ 25. But again,
the clerk of courts’ office is an independent office, not a legislative body that
appropriates funds. A common pleas court may have some authority to direct the
use of funds derived from the clerk’s collection of certain fees, see, e.g., R.C.
2303.201, but the judges have provided no legal support for paragraph No. 130,
which purports to broadly authorize the court to direct the clerk’s use of funds
regardless of their source.
{¶ 34} As these provisions in the judges’ May entry show, the entry does
not merely direct Andrews in the performance of her duties; it effectively prevents
Andrews from performing her duties and thus functionally removes her from her
elected office. If Andrews is to be removed from office, her removal must be done
according to the standard and procedure established by statute. See R.C. 3.07 and
3.08.
{¶ 35} Andrews also argues that the judges have exceeded their authority in
restraining her speech through paragraph No. 110 of the May entry, which provides:
The clerk shall not make unsupported public statements or
accusations about allegations of criminal or other illegal activities
occurring within the legal division office of the clerk of courts, or
by predecessors in the legal division office of the clerk of courts.
This in no way impedes her ability to consult or cooperate with her
statutory and personal counsel, law enforcement, or any
enforcement agency as part of a bona fide inquiry, report, or
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investigation; or where her statements are expressly protected by
state or federal law.
{¶ 36} Unlike the restrictions discussed above, paragraph No. 110 does not
prevent Andrews from carrying out any duty that the law requires of a clerk of courts;
that is, Andrews has not shown that the judges have effectively removed her from
office by including paragraph No. 110 in the May entry. But R.C. 2303.26—the
statute the judges rely on as the source of their jurisdiction—does not authorize a
court or its judges to restrain the content of a clerk of courts’ off-duty speech. Even
if a common pleas court has subject-matter jurisdiction to order a restraint on speech
in an ordinary adversarial proceeding, the directives within paragraph No. 110 were
not issued in an ordinary proceeding in which the court’s general subject-matter
jurisdiction was invoked. The directives in paragraph No. 110 were issued as a sua
sponte administrative action, under which the judges’ narrow authority allowed them
to direct Andrews “in the performance of [her] official duties,” R.C. 2303.26.
Paragraph No. 110 does not constitute “direction” concerning Andrews’s
performance of her official duties.
{¶ 37} We deny the judges’ motion to dismiss, because Andrews’s
allegations show that the judges patently and unambiguously exceeded their
jurisdiction by effectively removing her from office. Moreover, because “it appears
beyond doubt,” State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d
368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 14, that Andrews is entitled to relief in
prohibition, we issue a writ of prohibition vacating the May entry and prohibiting
the judges from imposing similar restrictions on Andrews in the future without
jurisdiction.
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B. Mandamus
{¶ 38} Andrews also seeks a writ of mandamus to compel the judges to
vacate the May entry. “[W]here a lower court patently and unambiguously lacks
jurisdiction over the cause, prohibition and mandamus will issue to prevent any
future unauthorized exercise of jurisdiction and to correct the results of prior
jurisdictionally unauthorized actions.” State ex rel. Dannaher v. Crawford, 78
Ohio St.3d 391, 393, 678 N.E.2d 549 (1997). Because Andrews has shown that the
judges patently and unambiguously lack jurisdiction to prevent her from
performing the essential duties of her office, we deny the judges’ motion to dismiss
the mandamus claim and issue a writ of mandamus ordering the judges to vacate
the May entry.
C. Quo warranto
{¶ 39} Andrews seeks a writ of quo warranto as an alternative remedy in
the event that we do not issue writs of prohibition and mandamus. Because we
issue writs of prohibition and mandamus, we deny the quo warranto claim as moot.
IV. CONCLUSION
{¶ 40} Because the judges have acted with a clear lack of jurisdiction, we
deny their motion to dismiss and issue writs of prohibition and mandamus.
Andrews’s alternative request for a writ of quo warranto is denied as moot.
Writs of prohibition and mandamus granted
and writ of quo warranto denied as moot.
O’CONNOR, C.J., and KENNEDY, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
FISCHER, J., concurs with respect to the majority’s denial of the writ of quo
warranto and its conclusion that Lake County is not a proper party and otherwise
dissents.
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Porter, Wright, Morris & Arthur, L.L.P., Edmund W. Searby, Kevin J.
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SUPREME COURT OF OHIO
Kelley, and L. Bradfield Hughes, for relator.
Montgomery Jonson, L.L.P., Kimberly V. Riley, and Linda L. Woeber, for
respondents.
Roetzel & Andress, L.P.A., and Stephen W. Funk, urging granting of the
writ for amicus curiae, Ohio Clerk of Courts Association.
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