IN THE SUPREME COURT OF OHIO

Transcription

1 tl, IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel., Origina-l Action in Procedendo Relator, vs. JUDGE TIMOTHY S. HORTON, Franklin County Court of Common Pleas, Civil Division 345 South High Street, Third Floor Columbus, OH COMPLAINT Respondent. ORIGINAL ACTION FOR AN OMNIBUS WRIT OF PROCEDENDO AND/OR LEAVE FOR REMOVAL TO SUPREME COURT JURISDICTION 98 Hosack Street Columbus, Ohio (614) voice (614) mobile gmail.com Judge Timothy S. Horton, Franklin County Court of Common Pleas Civil Division 345 South High Street, Third Floor Columbus, OH (614) voice (614) facsimile Relator pro se Respondent ;;^s,; /,+ ;'<`4;' g. ; ' i ^.^;... :. <.i't^b,^^, +, i....i+,l:.+c. r.v,.,s, i1^^rr 1

2 IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel., Original Action in Procedendo Relator, vs. JUDGE TIMOTHY S. HORTON, Franklin County Court of Common Pleas, Civil Division 345 South High Street, Third Floor Columbus, OH COMPLAINT Respondent. ORIGINAL ACTION FOR AN OMNIBUS WRIT OF PROCEDENDO AND/OR LEAVE FOR REMOVAL TO SUPREME COURT JURISDICTION 1.) Relator,. ("Relator"), Case No. 11 CV , is a pro se Plaintiff in a civil action captioned Edward Hafnilton et al. v. Ohio Department of Healtla et al in the Franklin County Court of Common Pleas, Civil Division.. 2.) Respondent, Judge Timothy S. Horton ("Respondent"), is a duly elected, qualified, and active judge for the Franklin County Court of Common Pleas, Civil Division, 345 High Street, Columbus, OH JURISDICTION 3.) Relator files this action pursuant to Article IV, Section 3 of the Ohio Constitution and R.C , et seq. and the Supreme Court of Ohio holds original jurisdiction over this instant action. 2

3 PROCEDURAL HISTORY AND FACTS OF THE CASE 4.) On November 2, 2011, Relator had filed an original verified complaint with a Motion for a Temporary Restraining Order (TRO) in the aforementioned cause of action with two fonner plaintiffs to nullify administrative rules for Ohio's Ryan White Program (O.A.C et seq.) improperly promulgated under OAC by the Ohio Department of Health (ODH). 5.) On November 3, 2011, Relator and former plaintiffs had been granted the requested TRO by the Respondent against ODH to bar enforcement of subject rules. 6.) On November 29, 2011, Relator and former plaintiffs had been granted a Preliminary Injunction by Respondent to bar enforcement of subject rules. 7.) On December 27, 2011, ODH liad filed a stay in discovery that was granted by Respondent on January 11, ) On June 26, 2012, Plaintiff David Baker voluntarily dismissed his claims without prejudice, leaving Relator and Plaintiff William Booth awaiting further action from the Respondent. 9.) On August 27, 2012, ODH had filed Motion to Dismiss Original Complaint. Relator and Plaintiff William Booth had requested Leave to File an Amended Complaint in addition to another Motion for TRO alleging multiple violations of the American with Disabilities Act, Rehabilitation Act, 14th Amendment Due Process, Ryan White Treatment and Modernization Act of 2009, Due Process Clause of the Ohio Constitution, and Ohio Administrative Procedures Acts. Respondent had jurisdiction to entertain and rule on the merits of the motion. However, Respondent had not ruled on this motion. 3

4 10.) On August 29, 2012, Respondent had granted Relator and Plaintiff Booth with Leave to File an Anlended. Complaint and denied the Motion for TRO and the ODH Motion to Dismiss the Original Complaint. 11.) On September 18, 2012, the stay of Discovery dated January 11, 2012 was lifted by Respondent. 12.) On September 28, 2012, ODH filed a Motion to Dismiss Amended Complaint. Respondent had jurisdiction to entertain and rule on the merits of the motion. However, Respondent had not ruled on this motion. 13.) On October 25, 2012, Relator and Plaintiff William Booth had requested Leave to File a Second Amended Complaint alleging multiple violations of the American with Disabilities Act, Rehabilitation Act, 14th Amendment Due Process Clause of the U.S. Constitution, Ryan White Treatment and Modernization Act of 2009, Due Process Clause of the Ohio Constitution, and Ohio Administrative Procedures Acts. Respondent had jurisdiction to entertain and rule on the merits of the motion. However, Respondent had not ruled on this motion. 14.) A Final Pre-Trial Conference was held October 30, ) On November 14, 2012, Respondent had granted Leave on Motion dated October 25, 2012 and Relator with Plaintiff William Booth had filed Second Amended Complaint. 16.) On November 15, 2012, Joint Case Schedule had been amended pushing the decision on motions date forward to May 31, 2013 and trial date forward to July 29, ) On November 16, 2012, ODH had filed objections to the Second Amended Complaint requesting motions to dismiss all complaints. Respondent had jurisdiction to entertain and rule on the merits of the motion. However, Respondent had not ruled on this motion. 4

5 18.) On April 1, 2013, all parties had requested and on April 9,2013 were a granted a stay by Respondent in the proceedings in light of Federal and Ohio Judicial doctrinal developments regarding the Affordable Care Act and Ohio Medicaid Expansion effects upon Ohio's Ryan White Program. 19) On November 06, 2013, a Continuance Order was ordered by the Respondent and a Status Conference was set for January 29, ) On January 10, 2014, Relator had terininated their representation. with their counsel of record and counsel subsequently withdrew representation. 21.) On January 29, 2014, Status Conference was held. All stays in the case were lifted and the case was reactivated to live docket. Plaintiff Booth had dismissed all claims in the action without prejudice and was finally removed on Apri128, Relator was granted Leave to Proceed as a pro se party to continue the action. 22.) On January 29, 2014, Relator had filed a Motion for Judicial Notice that the Ryan White Treatment Modernization Act of 2009 had expired on September 30, 2013 and had requested a Declaratory Judgment that the corresponding Ohio Revised Code and OAC et seq. be declared unenforceable and that any actions performed by ODH after the expiration of the Federal Statute be declared void ab initio. 23.) All remaining briefs for the January 29, 2014 motion were completed and submitted for a decision by the Respondent on March 29, Respondent had jurisdiction to entertain and rule on the merits of the motion. However, Respondent had not ruled on this motion. PROPOSITION OF LAW 24.) Procedendo is an extraordinary writ, issued by a court of superior jurisdiction

6 ordering a lower court to proceed to judgment in a case. State ex rel. Sherrills v. Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d 899 (1995). A Writ of Procedendo is proper where a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment. E.g. Id. 25.) The Ohio Rules of Civil Procedure, Franklin County Local Rules and the Supreme Court Rules serve as guides in determining whether a trial court has unduly delayed ruling on motions for purposes of ruling on a request for an extraordinary writ. Using those tools as a guide, this Court, then, must use its discretion in determining what constitutes undue delay. 26.) It has been three years since the original complaint, over two years since the First and Second Amended Complaint had been filed, and Respondent has not rendered any substantive ruling or actions on the merits of the instant case other than the Original TRO. It has also been almost eight months since this case has been fully briefed and submitted. Respondent had jurisdiction to entertain and rule on the merits of the motion. However, Respondent had not ruled on this motion. 27.) There have been no status conferences since January 29, ) This clearly constitutes an undue delay on the part of the Respondent in ruling on the motions and the subseqtient responses filed over a period of two years that is obstructing this action from proceeding to any final appealable judgment. 29.) This case has not been deemed COMPLEX litigation which would have extended the time guideline for resolution of the action to three years per the Ohio Rules of Civil Procedure and both the trial and Supreme Courts own internal case management guidelines. Even then, this case has surpassed all Relator known guidelines.

7 28.) There is no valid reason for a delay in ruling on these motions, objections and replies. The lower court's procedure was properly followed. All briefs and responses were timely filed, and Relator did not contribute in any way to the unreasonable delay in any par-t of the action. Further, like Culgan, where a writ of Procedendo was granted, some of these motions dealt with uncomplicated issues. Culgan, 135 Ohio St.3d 436 at ) In addition to Relator having a clear legal right to a decision on all pleadings, and to Respondent having a clear legal duty to issue those decisions, a Writ is required because Relator has no plain and adequate remedy in the ordinary course of the law. Relator can neither advance the action in the trial court nor can he access the courts of appeal in the absence of a final judgment entry adjudicating the action. A delay of this duration not only prejudices the Relatorit is a violation of Relator's Due Process rights, and his individual Ohio and U.S. Statutory and Constitutional interests. PRAYER 30.) Relator respectfully prays that a Peremptory Writ of Procedendo be issued, pursuant to R.C Relator is also requesting that an Alternative Writ be issued if Respondent fails to render immediate decisions in reference to et al. v. Ohio Departm.ent of Health, et al at the Franklin County Court of Common Pleas, Civil Division. Further, in the alternative, since the original cause of action in question involves the intersection of State and Federal Constitutional questions that will eventually arrive at this Court's door, Relator requests this Court to consider transferring the entire original cause of action to its own jurisdiction for further disposition in order to expeditiously carry out justice. 7

8 CONCLUSION 31.) WHEREFORE, Relator prays that this Honorable Court will grant the Writ of Procedendo, and COMMAND Judge Timothy S. Horton to expeditiously rule on Relator's various motions or in the alternative, remove et al. v. Ohio Department of Health et al from the Franklin County Court of Common Pleas, Civil Division to this Court for further disposition. Respectfully submitted, 98 Hosack Street Columbus, Ohio (614) voice (614) mobile Relator pro se 8

9 To the Clerk: PRAECIPE Please issue summons on respondent Judge Timothy S. Horton, Franklin County Court of Common Pleas, Civil Division, 345 South High Street, Third Floor, Columbus, Ohio 43215, by certified mail. 98 Hosack Street Columbus, Ohio (614) voice (614) mobile gmail.com

10 AFFIDAVIT OF VERITY (STATE OF OHIO (FRANKLIN COUNTY ) )SS: ) I,, herebv attest that the following statements are true and correct to the best of my knowledge, and after being first duly cautioned and sworn to say that I am aware of the penalties for perjury and that any false statements made will subject me to such penalties for perjury. 1.) Relator, former plaintiffs, and defendants through their counsel, filed multiple complaints and motions in Franklin County Court of Common Pleas regarding Case No. 11 CV since November 2, ) Relator, as pro se, filed a Motion for Judicial Notice and Declaratory Judgment on January 29, 2013, in Franklin County Court of Common Pleas regarding Case No. 11 CV ) Judge Timothy S. Horton failed to rule on the above properly briefed Motions and Complaints filed, in Franklin County Court of Common Pleas regarding Case No. 11 CV ) Relator is now filing this complaint for a Writ of Procedendo to the Supreme Court of Ohio because Relator has been prejudiced by this delay. Further Affiant Sayeth Naught. ^ Relator Sworn to the above and subscribed before me, a duly commissioned Notary Public, this day of