State ex rel. Reynolds v. Kirby

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Reynolds v. Kirby, Slip Opinion No. 2023-Ohio-782.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2023-OHIO-782THE STATE EX REL . REYNOLDS v. KIRBY, JUDGE, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Reynolds v. Kirby, Slip Opinion No.
2023-Ohio-782.]
Mandamus—Prohibition—R.C. 2945.44(A)—Neither probate-juvenile court’s
status as a division of a common pleas court nor its status as a probate court
vested it with jurisdiction to grant application for immunity in criminal
case— Prosecutor has no clear legal duty to file an application for
immunity in general division of common pleas court because R.C.
2945.44(A) gives prosecutors discretion whether to pursue immunity—Writ
granted to compel probate-juvenile court to vacate order granting immunity
to two witnesses, and prosecutor’s motion to dismiss complaint granted.
(No. 2022-0630—Submitted January 10, 2023—Decided March 16, 2023.)
IN MANDAMUS and PROHIBITION.
_______________________
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} If a witness refuses to testify after asserting the privilege against self-
incrimination, R.C. 2945.44(A) authorizes “the court of common pleas of the
county in which the proceeding is being held” to compel the witness to testify and
to grant the witness immunity from prosecution for any criminal act about which
the witness will testify. The issue in this original action is whether the probate-
juvenile division of a common pleas court had jurisdiction to grant an application
for immunity filed under R.C. 2945.44 in a criminal case. For the reasons that
follow, we hold that the probate-juvenile court patently and unambiguously lacked
jurisdiction to do so. We therefore grant a peremptory writ of prohibition
compelling the probate-juvenile court to vacate its order granting such immunity to
two witnesses.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In December 2018, relator, Jessica R. Reynolds, was charged with
misdemeanor counts of domestic violence and child endangering relating to her
juvenile son, L.C. Her case was assigned to respondent Judge Gary A. Loxley of
the Warren County Court. Like a municipal court, the Warren County Court has
jurisdiction over misdemeanor offenses. R.C. 1901.20(A)(1) and 1907.02(A)(1).
After conducting a bench trial, Judge Loxley convicted Reynolds of both charges.
{¶ 3} Reynolds appealed to the Twelfth District Court of Appeals, which
vacated her convictions after determining that the county court lacked jurisdiction
over the child-endangering offense and lacked jurisdiction to conduct a bench trial.
State v. Reynolds, 12th Dist. Warren No. CA2019-08-077, 2020-Ohio-4354.
{¶ 4} Thereafter, the prosecution filed an application in the county court
seeking immunity for L.C. under R.C. 2945.44. Judge Loxley denied the
application for want of jurisdiction, noting that under the statute, applications for
immunity must be filed in the court of common pleas.
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{¶ 5} The prosecution then filed an application under R.C. 2945.44 in the
Probate-Juvenile Division of the Warren County Court of Common Pleas
(hereinafter, “the probate-juvenile court”). The application requested immunity for
both L.C. and his stepbrother, M.R., stating that during an interview with
Reynolds’s counsel, L.C. described the events giving rise to the charges differently
than how he had initially alleged them to law enforcement. In a December 7, 2021
order, respondent Judge Joseph W. Kirby granted immunity to both witnesses.
Reynolds appealed the order to the Twelfth District, which dismissed the appeal for
lack of a final, appealable order.
{¶ 6} Reynolds now seeks a writ of mandamus to compel Judge Kirby to
vacate his order granting immunity to L.C. and M.R. and a writ of prohibition to
prevent Judge Loxley from giving effect to that order at Reynolds’s criminal trial.
She also seeks a writ of mandamus to compel respondent Warren County
Prosecuting Attorney David P. Fornshell to petition the Warren County Common
Pleas Court for witness immunity.
{¶ 7} Fornshell and Judges Kirby and Loxley have moved to dismiss the
complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief
can be granted.
II. LEGAL ANALYSIS
A. Request for writs of mandamus and prohibition
against Judges Kirby and Loxley
1. Applicable legal standards
{¶ 8} To be entitled to a writ of mandamus, a relator must establish by clear
and convincing evidence (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell, 150 Ohio
St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3.
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{¶ 9} To be entitled to a writ of prohibition, a relator must establish by clear
and convincing evidence (1) the exercise of judicial power, (2) the lack of authority
for the exercise of that power, and (3) an injury that would result from denial of the
writ for which no adequate remedy exists in the ordinary course of the law. See
State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d
1138, ¶ 13. If the respondent’s lack of jurisdiction is patent and unambiguous, the
relator need not establish the lack of an adequate remedy in the ordinary course of
the law. State ex rel. Ford v. Ruehlman, 149 Ohio St.3d 34, 2016-Ohio-3529, 73
N.E.3d 396, ¶ 62. And in such cases, mandamus or prohibition will lie to prevent
the unauthorized exercise of jurisdiction in the future and to provide relief from
prior judicial actions taken without jurisdiction. State ex rel. Smith v. Frost, 74
Ohio St.3d 107, 109, 656 N.E.2d 673 (1995).
{¶ 10} For a court to grant a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted, it must appear beyond doubt from
the complaint that the nonmovant can prove no set of facts warranting relief, after
all factual allegations of the complaint are presumed true and all reasonable
inferences are made in the nonmovant’s favor. State ex rel. Sands v. Court of
Common Pleas Judge, 155 Ohio St.3d 238, 2018-Ohio-4245, 120 N.E.3d 799, ¶ 7;
State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d
1014, ¶ 8.
2. The probate-juvenile court’s status as a division of the common pleas
court does not vest it with jurisdiction to grant immunity under R.C. 2945.44
{¶ 11} Reynolds acknowledges that R.C. 2945.44 “authorizes a common
pleas court to grant immunity,” but she claims that the statute does not authorize a
juvenile division of a court of common pleas to do so. Judges Kirby and Loxley
argue that because the probate-juvenile court is a division of the Warren County
Court of Common Pleas, R.C. 2945.44 vests the probate-juvenile court with
jurisdiction to rule on an application for immunity and that Judge Kirby possessed
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the requisite jurisdiction to issue the order granting immunity to L.C. and M.R.
Therefore, the judges contend, Reynolds can prove no set of facts that would entitle
her to relief.
{¶ 12} R.C. 2945.44(A) provides:
In any criminal proceeding in this state * * *, if a witness
refuses to answer or produce information on the basis of the
witness’s privilege against self-incrimination, the court of common
pleas of the county in which the proceeding is being held, unless it
finds that to do so would not further the administration of justice,
shall compel the witness to answer or produce the information, if
both of the following apply:
(1) The prosecuting attorney of the county in which the
proceedings are being held makes a written request to the court of
common pleas to order the witness to answer or produce the
information, notwithstanding the witness’s claim of privilege; [and]
(2) the court of common pleas informs the witness that by
answering, or producing the information the witness will receive
immunity under division (B) of this section.
(Emphasis added.)
{¶ 13} R.C. 2945.44 plainly grants courts of common pleas the power to
grant immunity to witnesses in criminal proceedings on the written application of
the prosecution. The important question for our purposes is whether the statute’s
reference to “the court of common pleas” includes all divisions of that court.
{¶ 14} The Ohio Constitution provides, “The courts of common pleas and
divisions thereof shall have such original jurisdiction over all justiciable matters
* * * as may be provided by law.” Ohio Constitution, Article IV, Section 4(B).
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The “provided by law” qualification means that there must be a statutory basis for
jurisdiction. R.C. 2931.03 and 2305.01 give common pleas courts jurisdiction over
all but the most minor criminal offenses and civil cases. We have held that “the
court of common pleas is a court of general jurisdiction, with subject matter
jurisdiction that extends to ‘all matters at law and in equity that are not denied to
it.’ ” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d
1040, ¶ 20, quoting Saxton v. Seiberling, 48 Ohio St. 554, 558-559, 29 N.E. 179(1891).
{¶ 15} While probate courts—like the courts of common pleas—are
provided for in the Ohio Constitution, juvenile courts were established by statute.
See Article IV, Section 4(C) (“Unless otherwise provided by law, there shall be a
probate division and such other divisions of the courts of common pleas as may be
provided by law”). As a statutory creation, a juvenile court “possesses only the
jurisdiction that the General Assembly has expressly conferred upon it.” In re
Gibson, 61 Ohio St.3d 168, 172, 573 N.E.2d 1074 (1991). R.C. 2151.07 provides
that a “juvenile court is a court of record within the court of common pleas” and
vests juvenile courts with “the powers and jurisdiction conferred in Chapters 2151.
and 2152. of the Revised Code.” R.C. 2151.23 limits the juvenile court’s
jurisdiction to certain subject matters involving juveniles. Nothing in R.C.
2151.23—or Chapters 2151 and 2152 generally—gives the juvenile court authority
to grant immunity from prosecution for a criminal act.
{¶ 16} Furthermore, while the General Assembly has expressly conferred
the powers and jurisdiction of the court of common pleas on the domestic-relations
and juvenile divisions in some counties, Warren County is not among them. For
example, eight provisions of R.C. 2301.03 specify that judges “shall be elected and
designated as judge[s] of the court of common pleas, juvenile division,” shall be
“the juvenile judge[s] as provided in Chapters 2151. and 2152. of the Revised
Code,” and shall have “the powers and jurisdiction[s]” conferred by those chapters.
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January Term, 2023
R.C. 2301.03(D)(2), (E)(2), (F)(2), (G)(2), (I)(2), (K)(2), (M)(2), and (O)(2)
(respectively conferring jurisdiction to judges of the court of common pleas,
juvenile division, in Lucas, Mahoning, Montgomery, Richland, Summit, Butler,
Lake, and Greene Counties). Those provisions expressly provide that the judges
elected to the juvenile courts in those counties “shall have the same qualifications,
exercise the same powers and jurisdiction, and receive the same compensation as
[the] other judges of the court of common pleas.” (Emphasis added.) R.C.
2301.03(D)(2), (E)(2), (F)(2), (G)(2), (I)(2), (K)(2), (M)(2), and (O)(2). In
construing another provision of R.C. 2301.03, which applies to the Cuyahoga
County Court of Common Pleas, Division of Domestic Relations, we determined
that that court’s jurisdiction was not limited to divorce, dissolution-of-marriage,
legal-separation, and annulment cases, because the enabling statute provided that
the judges of that court “retain ‘the same powers and jurisdiction * * * as other
judges of the court of common pleas.’ ” (Ellipsis sic.) Pula v. Pula-Branch, 129
Ohio St.3d 196, 2011-Ohio-2896, 951 N.E.2d 72, ¶ 6, quoting R.C. 2301.03(L)(1).
{¶ 17} The General Assembly has not conferred the general powers of the
common pleas court on the probate-juvenile court in Warren County. Rather, R.C.
2301.03(R) confers such concurrent authority on only judges of the division of
domestic relations in that county. Thus, in Warren County, the probate-juvenile
court does not possess the same powers and jurisdiction as the General Division of
the Warren County Court of Common Pleas.1 Accordingly, we conclude that the
1. This conclusion conflicts with In re Poth, 2 Ohio App.3d 361, 442 N.E.2d 105 (6th Dist.1981),
in which the court of appeals held that the Juvenile Division of the Huron County Court of Common
Pleas had jurisdiction to grant an application for immunity under R.C. 2945.44 because R.C.
2151.21 affords juvenile courts the same jurisdiction in contempt as the courts of common pleas and
because under the version of R.C. 2151.07 in effect at that time, juvenile courts were courts of record
within the domestic-relations or probate divisions of the courts of common pleas. See former R.C.
2151.07, Am.H.B. No. 574, 134 Ohio Laws, Part II, 2081, 2082. Importantly, the court in Poth
failed to consider whether the General Assembly had enacted any statute conferring the jurisdiction
of the court of common pleas on the juvenile court. Because the Huron County Court of Common
Pleas, Juvenile Division, had not been granted those powers, see R.C. 2301.03, Poth was wrongly
decided.
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probate-juvenile court’s status as a division of a common pleas court does not vest
it with jurisdiction to grant witness immunity under R.C. 2945.44.
3. The probate-juvenile court’s status as a probate court does not vest it with
jurisdiction to grant immunity under R.C. 2945.44
{¶ 18} The only other potential source of jurisdiction for the probate-
juvenile court to grant witness immunity under R.C. 2945.44 is its status as a
probate court.
{¶ 19} Probate courts, like juvenile courts, are courts of limited jurisdiction
that can exercise only the authority granted to them by statute and the Ohio
Constitution.2 See In re Guardianship of Spangler, 126 Ohio St.3d 339, 2010-
Ohio-2471, 933 N.E.2d 1067, ¶ 46. The primary statute conferring jurisdiction on
probate courts, R.C. 2101.24, grants them exclusive jurisdiction over numerous
matters relating to probate estates, guardianships, trusts, and postdeath disputes.
{¶ 20} In addition, R.C. 2101.24(B)(1) sets forth three circumstances in
which a probate court has jurisdiction concurrent with that of the general division
of the court of common pleas. The only provision of that statute that could apply
to the facts of the underlying case authorizes a probate court to exercise jurisdiction
concurrent with that of the general division of the court of common pleas in an
action involving a particular subject matter “[i]f jurisdiction relative to [that]
subject matter is stated to be concurrent in a section of the Revised Code or has
been construed by judicial decision to be concurrent.” R.C. 2101.24(B)(1)(a). R.C.
2945.44 does not expressly grant concurrent jurisdiction to probate courts, and
Reynolds has cited no decision construing that statute as conferring such
jurisdiction.
2. Although Article IV, Section 8 of the Ohio Constitution previously set forth the jurisdiction of
the probate court, that provision was repealed effective May 7, 1968.
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January Term, 2023
{¶ 21} In light of the foregoing, we conclude that the probate-juvenile
court’s status as a probate court does not vest it with jurisdiction to grant witness
immunity under R.C. 2945.44.
4. The probate-juvenile court patently and unambiguously lacks jurisdiction
to grant immunity under R.C. 2945.44
{¶ 22} The probate-juvenile court possesses only the jurisdiction that the
General Assembly has conferred on it. Because that court has not been granted
jurisdiction concurrent with that of the court of common pleas, it patently and
unambiguously lacked jurisdiction to grant immunity to L.C. and M.R. under R.C.
2945.44. Therefore, we deny the motion of Judges Kirby and Loxley to dismiss
Reynolds’s complaint and we grant a peremptory writ of prohibition to compel
Judge Kirby to vacate his December 7, 2021 immunity order. See Hughes v.
Calabrese, 95 Ohio St.3d 334, 2002-Ohio-2217, 767 N.E.2d 725, ¶ 15 (“Where an
inferior court patently and unambiguously lacks jurisdiction over the cause,
prohibition will lie both to prevent the future unauthorized exercise of jurisdiction
and to correct the results of prior actions taken without jurisdiction”).
{¶ 23} Our judgment granting a peremptory writ of prohibition against
Judge Kirby renders moot Reynolds’s request for a writ of prohibition to prevent
Judge Loxley from giving effect to the invalid immunity order because there is no
suggestion in the record that Judge Loxley intends to give effect to that order even
if vacated.
B. Reynolds has not alleged facts showing that she is entitled to a writ of
mandamus against Fornshell
{¶ 24} Reynolds also seeks a writ of mandamus to compel Fornshell to
petition the Warren County Common Pleas Court—rather than the probate-juvenile
division of that court—to grant L.C. and M.R. immunity under R.C. 2945.44.
Fornshell counters that the probate-juvenile court in Warren County is a division of
the court of common pleas in that county and that it therefore possessed the
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requisite jurisdiction to rule on the application for immunity that his office filed in
that court. Accordingly, Fornshell argues that Reynolds has no legal right to
compel him to apply for witness immunity and that there is no clear legal duty on
his part to file an application for immunity in another court.
{¶ 25} R.C. 2945.44(A) provides for a grant of immunity upon the written
request of the prosecuting attorney in a criminal proceeding for a witness who has
refused to answer or produce information on the basis of the witness’s privilege
against self-incrimination—but it does not require the prosecuting attorney to seek
such immunity. Instead, the statute gives the prosecutor discretion to pursue
immunity. “A writ cannot compel the exercise of a permissive act.” State ex rel.
Xenia v. Greene Cty. Bd. of Commrs., 160 Ohio St.3d 495, 2020-Ohio-3423, 159
N.E.3d 262, ¶ 10, citing State ex rel. Hodges v. Taft, 64 Ohio St.3d 1, 4, 591 N.E.2d
1186 (1992).
{¶ 26} Because Fornshell has no clear legal duty to file an application for
immunity in the general division of the court of common pleas, Reynolds cannot
establish that she has a clear legal right to a writ of mandamus to compel such a
filing. We therefore grant Fornshell’s motion to dismiss.
III. CONCLUSION
{¶ 27} Accordingly, we deny the motion of Judges Kirby and Loxley to
dismiss the complaint, grant a peremptory writ of prohibition to compel Judge
Kirby to vacate his December 7, 2021 immunity order, and deny as moot
Reynolds’s request for a writ of prohibition preventing Judge Loxley from giving
effect to Judge Kirby’s immunity order. We also grant Fornshell’s motion to
dismiss the complaint as it relates to him.
Writ of prohibition granted in part
and denied in part
and writ of mandamus denied.
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January Term, 2023
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,
and DETERS, JJ., concur.
_________________
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for relator.
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael
Greer, Assistant Prosecuting Attorney, for respondents Judge Joseph W. Kirby and
Judge Gary A. Loxley.
David P. Fornshell, Warren County Prosecuting Attorney, and Adam M.
Nice, Assistant Prosecuting Attorney, for respondent Warren County Prosecuting
Attorney David P. Fornshell.
_________________
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