IN THE SUPREME COURT OF OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO ^ ^ ^^ Cinseree Johnson, Relator : OHIO SUPREME COURT : CASE NO: vs. : (Original Action in Prohibition) John Bodovetz, et al., ^ Respondents ^ _ MOTION TO DISMISS COMPLAINT FOR WRIT OF PROHIBITION ON BEHALF OF RESPONDENTS JOHN BODOVETZ, BAINBRIDGE POLICE DEPARTMENT JUDGE TERRI L. STUPICA, AND CHARDON MUNICIPAL COURT DAVID P. JOYCE (# ) GEAUGA COUNTY PROSECUTOR Nicholas A. Burling (# ) Assistant Prosecuting Attorney Geauga County Prosecutor's Office 231 Main Street, 3rd Floor Chardon, Ohio (440) CINSEREE JOHNSON P.O. Box Cleveland, Ohio Counsel for Respondents, John Bodovetz, Bainbridge Police Department, Judge Terri L. Stupica, and Chardon Municipal Court Relator, Pro Se ^^^^U NQ^ ^^ ^G^Z CL^RE< QF CO!!RT ^EE^d^ ^AU^^ ^^ ( ^^^^ (^ ^ ^^^^ ^^_^^R^^ ^^^= ^^^^UR^ SUPRE6^^ ^UUR^ ^^ ^HIO

2 IN THE SUPREME COURT OF OHIO Cinseree Johnson; : OHIO SUPREME COURT Relator : CASE NO: vs. : (Original Action in Prohibition) John Bodovetz, et al., Respondents : ' MOTION TO DISMISS COMPLAINT FOR WRIT OF PROHIBITION ON BEHALF OF RESPONDENTS JOHN BODOVETZ, BAINBRIDGE POLICE DEPARTMENT, JUDGE TERRI L. STUPICA, AND CHARDON MUNICIPAL COURT NOW COME RESPONDENTS JOHN BODOVETZ, BAINBRIDGE POLICE DEPARTMENT, JUDGE TERRI L. STUPICA, AND CHARDON MUNICIPAL COURT, by and through undersigned ^counsel, and hereby move this Honorable Court to dismiss Relator's Complaint for a Writ of Prohibition. A memorandum in support is attached hereto and incorporated herein. Respectfully submitted, DAVID P. JOYCE (# ) GEAUGA COUNTY PROSECUTOR Nicholas A. Burling (#0083 Assistant Prosecuting Att ney Geauga County Prosecut 's ffice ^ 231 Main Street, 3rd Floor Chardon, Ohio (440)

3 MEMORANDUM IN SUPPORT Procedural Background On October 19, 2012, Relator Cinseree Johnson filed an original action in prohibition with the Ohio Supreme Court. Relator seeks to prevent Respondents John Bodovetz, Bainbridge Police Department, Judge Terri Stupica, and the Chardon Municipal Court from pursuing Chardon Municipal Case No CRA or further investigation of Relator. Relator bases her complaint in the allegation that the acts which constitute the offense charged occurred outside the "territorial jurisdiction" of the Chardon Municipal Court or Bainbridge Police Department. Law and Argument To be entitled to a writ of prohibition, Relator must establish that (1) Respondents are about to exercise judicial or quasi judicial power, (2) the exercise of that power is unauthorized by 1aw, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of law. See State ex rel. Finkbeine^ v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, 14. Dismissal of a complaint for a writ of prohibition "is required if it appears beyond doubt, after presuming the truth of all material factual allegations of relators' complaint and making all reasonable inferences in their favor, that [relator is] not entitled to the requested extraordinary relief in prohibition ***." State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, 13. With regard to the first requirement for a writ of prohibition, Respondents Judge Stupica and Chardon Municipal Court concede that they do exercise judicial power. Respondents John

4 Bodovetz (a police officer with Bainbridge Police Department) and Bainbridge Police Department, however, do not. Relator objects to Bainbridge Police Department's investigation of her and: filing of a complaint against her in court for prosecution of an alleged crime. Law enforcement, however, is an executive, not judicial, function. - See e.g. State v. Hobbs, 133 Ohio St.3d 43, 2012-Ohio- 3886, 975 N.E.2d 965. The filing of charges and prosecution of a criminal case are also purely executive functions. See e.g. In ^e Metzenbaum, 26 Ohio Misc. 47, 48, 265 N.E.2d 345 (1970). Therefore, the police department's investigation, the filing of charges, and the prosecution of those charges are not judicial or quasi judicial functions, and they are not properly the subject of a writ of prohibition. Relator's complaint fails the first requirement for a writ of prohibition with respect to Respondents John Bodovetz and Bainbridge Police Department, and thus, her complaint is invalid with respect to them. As to the second requirement, Relator claims that the filing of charges in Chardon Municipal Court is unauthorized by law because the acts constituting the alleged violation occurred outside of Geauga County's "territorial jurisdiction." By "territorial jurisdiction," it appears Relator is referring to venue, as established in R.C The venue statute states that "[t]he trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter; and in the territory of which the offense or any element of the offense was committed." R.C (A). Therefore, subject matter jurisdiction and "territorial jurisdiction," or "venue," are two separate matters: "[A] writ of pronibition `tests and determines "solely and or?y" the subject rnatter jurisdiction' of the lower court." State ex ^el. Jones v. Suster, 84 Ohio St.3d 70, 73, 701 N.E.2d 1002 (1998), citing State ex ^ el. Eaton Corp. v. Lancaster, 40 hio St.3d 404, 409, 534 N.E.2d

5 ^. i^.... _.. 46 (1988), and State ex rel. Staton v. F^anklin Cty. Common Pleas Cou^t (1965), 5 Ohio:St.2d 17, d 10, 213 N.E.2d 164 (1965). Therefore; Relator's allegation concerning jurisdiction, even if true, does not concern the type of jurisdiction that is properly addressed by a writ of prohibition. Relator's complaint fails the second requirement for a writ of prohibition with respect to all Respondents. Finally, Relator fails to establish that she is without an adequate remedy in the ordinary course of law in the event the writ is denied. Nowhere in her complain or affidavit does Relator address the presence of absence of alternate remedies. In actuality, other remedies do exist. Relator could file a motion to dismiss at the trial court level based on improper venue. Were the trial court to deny such a motion, Relator could litigate the issue to a jury, as the State is required to prove venue as an element of its case. Were Relator to lose at trial, she could appeal the issue. The normal trial and appellate procedures afford Relator other remedies to pursue. Therefore, Relator has failed the third requirement for a writ of prohibition with respect to all Respondents.

6 Conclusion As Relator's complaint fails all three requirements necessary to be entitled to a writ of prohibition, her complaint must be dismissed. WHEREFORE, Respondents John Bodovetz, Bainbridge Police Department, Judge Terri L. Stupica, and Chardon Municipal Court respectfully request this Honorable Court dismiss Relator's Complaint for a Writ of Prohibition on grounds that, even if Relator's factual allegations are true, the allegations do not meet the requirements for a writ of prohibition. Furthermore, Respondents request that costs of these proceedings be assessed to Relator. Respectfully submitted, DAVID P. JOYCE (# ) GEAUGA CO TY PROSECUTOR. Nicholas A. Burling (#00836 Assistant Prosecuting Att Geauga County Prosecutor s Office 231 Main Street, 3rd Floor Chardon, Ohio (440)

7 CERTIFICATE OF SERYICE A copy of the foregoing MOTION TO DISMISS was sent by regular U.S. mail, postage prepaid; or hand delivered to the correspondence box located at the Geauga County Court of Common Pleas, Chardon, Ohio, for routine personal pick-up on the 8th day of November, 2012, to the following: Cinseree Johnson. P.O. Box94166 Cleveland, Ohio Relator John Bodovetz and Bainbridge Police Department 8353 Bainbridge Road Chagrin Falls, Ohio Judge Terri L. Stupica and Chardon Municipal Court 111 Water Street Chardon, bhio Respondents ^ / Nicholas A. Burling (#^ Assistant Prosecuting ^