IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel. MARC S. TRIPLETT, Supreme Court No. 332 South Main Street Bellefontaine, Ohio 43311, Relator, ORIGINAL ACTION IN PROHIBITION vs. JOHN L. ROSS, Judge, Bellefontaine Municipal Court 226 West Columbus Avenue Bellefontaine, Ohio 43311, and MARTY CARMEAN, Clerk Bellefontaine Municipal Court 226 West Columbus Avenue Bellefontaine, Ohio 43311 and BELLEFONTAINE MUNICIPAL COURT 226 West Columbus Avenue Bellefontaine, Ohio 43311 Respondents. BRIEF IN SUPPORT OF COMPLAINT FOR A WRIT OF PROHIBITION JEFFREY M. GAMSO (0043869) Legal Director, ACLU of Ohio Foundation, Inc. Max Wohl Civil Liberties Center 4506 Chester Avenue Cleveland, Ohio 44103-3621 Phone: (216) 472-2220 Fax: (216) 472-2210 e-mail: jmgamso@acluohio.org COUNSEL FOR RELATOR, MARC S. TRIPLETT
BRIEF IN SUPPORT OF COMPLAINT FOR A WRIT OF PROHIBITION I. Factual Background On December 14, 2005, the Ohio General Assembly passed Am.Sub.S.B. 9, commonly known as the Ohio Patriot Act. It was signed by the Governor on January 11, 2006 and takes effect on April 14, 2006. Among other things, the Ohio Patriot Act created new sections of the Ohio Revised Code mandating that persons or entities seeking to obtain licenses from, do business or obtain contracts or employment with, or to seek funding from, the State of Ohio, its agencies and instrumentalities, or its subdivisions must certify that they are not terrorists, do not employ terrorists, and do not provide material support to terrorists. See generally R.C. 2909.32, 2909.33, and 2909.34. New section R.C. 2909.32(A)(2)(b) sets forth a series of six questions which persons or entities seeking such licenses, contracts or funding must answer: (1) Are you a member of an organization on the U.S. Department of State Terrorist Exclusion List? (2) Have you used any position of prominence you have within any country to persuade others to support an organization on the U.S. Department of State Terrorist Exclusion List? (3) Have you knowingly solicited funds or other things of value for an organization on the U.S. Department of State Terrorist Exclusion List? (4) Have you solicited any individual for membership in an organization on the U.S. Department of State Terrorist Exclusion List? 1
(5) Have you committed an act that you know, or reasonably should have known, affords "material support or resources" to an organization on the U.S. Department of State Terrorist Exclusion List? (6) Have you hired or compensated a person you knew to be a member of an organization on the U.S. Department of State Terrorist Exclusion List or a person you knew to be engaged in planning, assisting, or carrying out an act of terrorism? Failure to answer the questions honestly is a felony of the fifth degree. R.C. 2909.32(F); 2909.33(A)(3)(c); 2909.34(E). Failure fully to complete the questionnaire is a disqualification for the license, contract, employment, or funding. Answering any of the six questions affirmatively is also a disqualification. R.C. 2909.32(C); 2909.33(B)- (D); 2909.34(B). These sections do provide an appellate mechanism whereby certain people or entities can overcome a disqualification based on an affirmative answer to one of the questions. They do not provide any mechanism for overcoming disqualification based on refusal to answer any of the questions or all of them - regardless of whether there is a rational relationship between the questions and the license, contract, employment, or funding at issue. Relator Marc S. Triplett is an attorney licensed by this Court to practice law in this State. He also accepts court appointments from the Bellefontaine Municipal Court. As a governmental entity that court 1 1 And in fact every court in Ohio. 2
is required by the Ohio Patriot Act to ensure that every person who seeks to obtain contracts from it shall answer the questions set forth in R.C. 2909.32(A)(2)(b) on the disclosure form prepared by the Division of Homeland Security of the Department of Public Safety. To that end, Bellefontaine Municipal Court sent All Court Appointed Counsel a copy of the disclosure form. As the certification on the form itself (Exhibit A to the affidavit accompanying the complaint in this case) states, failure to complete fully the form and to answer all the questions will be a disqualification. Thus, the General Assembly, through the Ohio Patriot Act, has declared that only persons who attest that they are not terrorists, do not employ terrorists, and do not provide material support to terrorists may represent indigent persons on appointment in the courts of Ohio. And by sending the form to All Court Appointed Counsel, the Bellefontaine Municipal Court, its Clerk, and its Judge have implemented that requirement. But the General Assembly does not have the authority to create that rule and the Bellefontaine Municipal Court, Clerk, and Judge do not have the authority to implement that rule. II. Regulation of Practice of Law Section 2(B)(1)(g), Article IV, of the Ohio Constitution provides that this Court has original jurisdiction over Admission to the practice of law, the discipline of persons so admitted, and all other 3
matters relating to the practice of law. (Emphasis sic). As this Court has repeatedly held, this Court has exclusive power to regulate and and control the practice of law. [i]t has been methodically and firmly established that the power and responsibility to admit and discipline persons admitted to the practice of law, to promulgate and enforce professional standards and rules of conduct, and to otherwise broadly regulate, control, and define the procedure and practice of law in Ohio rests inherently, originally, and exclusively in the Supreme Court of Ohio. Shimko v. Lobe, 103 Ohio St.3d 59, 62, 2004-Ohio-4202, 15 (citing cases). The power of this Court over the practice of law is plenary and any attempt by another branch of government or a lesser court to usurp that power is clearly improper. This Court and other courts in Ohio have previously addressed questions regarding the power to determine when attorneys may be barred from representing clients. Thus, it is clear that a court has the authority to determine that a particular lawyer may be disqualified from representing a particular client in a particular case. E.g., State v. Keenan (1998), 81 Ohio St.3d 133. But it is equally clear that trial court judges do not have the general authority to determine that certain duly licensed attorneys simply may not represent clients before them. Melling v. Stralka (1984), 12 Ohio St.3d 105. For them to do so, would be to create "rules of general application, which place limits on an attorney's ability to practice and/or impose 4
'across-the-board' disciplinary measures on members of the bar,' and neither trial nor appellate courts may do that. Id. at 107. That is precisely what the General Assembly attempted to do and what the Respondents here are prepared to do. They have created and are preparing to enforce a rule that the indigent accused may only be represented by persons who declare under penalty of felony that they are not terrorists, do not employ terrorists, and do not provide material support to terrorists. Sadly, this is perhaps not the forum to debate whether an actual terrorist confronted with that declaration would decide that risking a felony by lying would be too grave a consequence. Nor is this the occasion to wonder at the need to prevent terrorists from defending persons charged with misdemeanor assault or driving with a prohibited breath alcohol concentration - if those persons happen to be indigent. 2 The foolishness and irrationality of mandating the oaths nearly matches the offensiveness of being forced to declare on pain of blacklist that one is not now and has never been. But this is the place to observe that through the Ohio Patriot Act, the General Assembly attempted to declare who could practice law 2 It might be relevant, however, that there is a violation of the Equal Protection of the laws, Fourteenth Amendment, United States Constitution; Section 2, Article I, Ohio Constitution, drawing an invidious distinction between whom may represent the accused with money and who may represent the accused who are indigent and require appointed counsel. 5
in what circumstances in the courts of this State. That it may not do. And this is the time for this Court to remind the lower courts of this State that they simply do not have the authority to implement such regulation. It is this Court which has the inherent, original, and exclusive right to control the practice of law in this State. Respondents are preparing to usurp that right as the General Assembly has attempted to. It is appropriate for this Court to refuse to permit it. III. Prohibition the Appropriate Remedy A writ of prohibition is the appropriate remedy to prevent the usurpation of judicial power. State ex rel. Flannery v. Sidwell, (1970) 24 Ohio St.2d 74, 74. It is appropriate in this case because Relator is not seeking to correct an action of Respondents or to require them to perform a deed. Rather, Relator seeks an order prohibiting Respondents from usurping the unique authority of this Court to regulate the practice of law in Ohio. Before he may obtain a writ of prohibition, Relator must make a three-part showing: That Respondents are about to exercise judicial or quasi-judicial power; that the exercise of that power exceeds Respondents' jurisdiction; that Relator has no adequate remedy in the ordinary course of law. State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359 6
demonstrate first that Respondents are about to exercise judicial or quasi-judicial power. They are, because they are determining who shall be on the lists of persons to be appointed to represent the indigent accused - a task for the judiciary, and because they will be making those determinations and appointments. Second, Relator must show that the exercise of that power is unauthorized by law. In this case, it is because only this Court may regulate the practice of law in Ohio. Third, Relator must show that he has no adequate remedy at law. Initially, it is clear that Relator has a personal interest that is cognizable by the courts. He is an attorney, has accepted appointments in from Respondents in Respondent court, and wishes to continue to accept those appointments. However, he believes that he cannot be compelled to fill out the disclosure as a condition of accepting those appointments, and he intends not to fill out the disclosure. Accordingly, and unless this Court says otherwise, he will be denied the opportunity to represent the indigent accused in Bellefontaine Municipal Court. Moreover, his interest cannot be vindicated in the ordinary course of law. The Municipal Court and Judge and Clerk will not vindicate his rights because they are the very ones who improperly are attempting to usurp this Court's power. Nor would an action seeking injunctive or declaratory relief provide a complete remedy because this Court does 7
not have original jurisdiction over those actions and it is precisely this Court's power which Respondents are attempting to usurp. CONCLUSION Accordingly, and for all these reasons, Relator asks this Court to issue a peremptory writ as set forth in his Complaint or, in the alternative, to issue an alternative writ and set the case for full briefing and argument. Respectfully submitted, JEFFREY M. GAMSO (0043869) Legal Director, ACLU of Ohio Foundation, Inc. Max Wohl Civil Liberties Center 4506 Chester Avenue Cleveland, Ohio 44103-3621 Phone: (216) 472-2220 Fax: (216) 472-2210 e-mail: jmgamso@acluohio.org 8