State ex rel. Heck v. Kessler

[This opinion has been published in Ohio Official Reports at 

72 Ohio St.3d 98

.]




                 THE STATE EX REL. HECK ET AL., v. KESSLER, JUDGE.
                [Cite as State ex rel. Heck v. Kessler, 

1995-Ohio-304

.]
Prohibition to prevent judge from exercising jurisdiction in an aggravated
         menacing case—Mandamus to compel judge to vacate prior decisions and
         to try defendant on an ethnic intimidation charge—Writs granted, when.
      (No. 94-1831—Submitted February 21, 1995—Decided April 26, 1995.)
                              IN MANDAMUS AND PROHIBITION.
                                      __________________
         {¶ 1} In cases arising from separate incidents, James B. May, Jr. and Mark
J. Staton were charged with ethnic intimidation, R.C. 2927.12, predicated on
aggravated menacing. Respondent, Judge John W. Kessler of the Montgomery
County Court of Common Pleas, granted May's and Staton's motions to dismiss the
indictments on the basis that R.C. 2927.12 is unconstitutionally vague, in violation
of Section 16, Article I of the Ohio Constitution and the Fourteenth Amendment to
the United States Constitution because (1) the "by reason of" phrase used in R.C.
2927.12 describes no statutorily cognizable mental state as required by R.C.
2901.21 for an element of the offense, and (2) the language of R.C. 2927.12 does
not sufficiently specify the relationship of the race, etc. of the other "person or
group of persons" to the actor or victim. The Court of Appeals for Montgomery
County affirmed Judge Kessler's dismissal of the ethnic intimidation charges on the
basis that R.C. 2927.12 is unconstitutionally vague. However, the court of appeals
further held that Judge Kessler erred in dismissing the underlying aggravated
menacing charges. The court of appeals certified its judgment as being in conflict
with the judgment of the Court of Appeals for Delaware County in State v. Wyant
(Dec. 6, 1990), Delaware App. No. 90-CA-2, unreported.
                             SUPREME COURT OF OHIO




       {¶ 2} The May and Staton cases were consolidated with other ethnic
intimidation cases in this court, and in State v. Wyant (1992), 

64 Ohio St.3d 566

,

597 N.E.2d 450

 ("Wyant I"), at syllabus, R.C. 2927.12 was held to "create a 'thought
crime,' in violation of Section 11, Article I of the Ohio Constitution, and the First
and Fourteenth Amendments to the United States Constitution." We affirmed the
judgment of the court of appeals dismissing May's and Staton's ethnic intimidation
charges and remanding the causes to Judge Kessler to proceed on the underlying
aggravated menacing charges. In so holding, we did not reach constitutional
challenges to R.C. 2927.12 based on vagueness, equal protection, due process, and
overbreadth. Wyant I, supra, at 579-580, 

597 N.E.2d at 459

.
       {¶ 3} The cases in Wyant I, including May and Staton, were remanded to
this court by the Supreme Court of the United States for the purpose of "further
consideration in light of Wisconsin v. Mitchell, 

508 U.S. __

 [

113 S.Ct. 2194

, 

124 L.Ed.2d 436

] (1993)." See (1993), 

509 U.S. __

, 

113 S.Ct. 2954

, 

125 L.Ed.2d 656

.
In State v. Wyant (1994), 

68 Ohio St.3d 162

, 

624 N.E.2d 722

 ("Wyant II"), we
vacated Wyant I and held in the syllabus that "R.C. 2927.12, the Ohio Ethnic
Intimidation Act, is constitutional under the United States and Ohio Constitutions."
In this court's mandate, as to May and Staton, it was ordered that "the judgment of
the court of appeals is reversed and the cause is remanded for a new trial consistent
with the opinion rendered herein."
       {¶ 4} Although May and Staton did not file a motion for rehearing, this
court sua sponte denied rehearing. Other defendants in Wyant II filed motions for
rehearing, which argued, in part, that this court had not decided other constitutional
issues raised regarding R.C. 2927.12, including the vagueness claim. We overruled
the motions.
       {¶ 5} On remand from this court, May and Staton filed motions to dismiss
the ethnic intimidation charges. On June 30 and July 1, 1994, Judge Kessler
dismissed those charges and further ordered that the cases be set for trial on the




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                                January Term, 1995




underlying aggravated menacing charges. The state appealed Judge Kessler's
dismissal orders, and on September 6, 1994, Judge Kessler vacated the scheduled
trial dates for May and Staton and stayed all proceedings pending resolution of the
state's appeal.
        {¶ 6} On August 23, 1994, relators, Montgomery County Prosecuting
Attorney Mathias H. Heck, Jr., and then-Ohio Attorney General Lee Fisher, filed a
complaint in this court seeking (1) a writ of mandamus ordering Judge Kessler to
vacate his June 30 and July 1, 1994 decisions and set the matter for trial on the
ethnic intimidation charges, and (2) a writ of prohibition preventing Judge Kessler
from requiring the state to proceed against May and Staton on the aggravated
menacing charges. On October 19, 1994, we overruled Judge Kessler's motion to
dismiss and granted an alternative writ. The Court of Appeals for Montgomery
County granted leave to the state to appeal Judge Kessler's decisions, but later
stayed further appellate proceedings pending the outcome of relators' action in this
court. On January 18, 1995, we denied a request for oral argument.
        {¶ 7} The cause is now before this court for a consideration of the parties'
arguments and submitted evidence.
                               __________________
        Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram, Assistant Prosecuting Attorney; Betty D. Montgomery, Attorney
General, and Simon B. Karas, Deputy Chief Counsel, for relators.
        David H. Bodiker, Ohio Public Defender, and Susan Gellman, Assistant
Public Defender, for respondent.
                               __________________
        Per Curiam.
        {¶ 8} Initially, relators note that Staton has died and that the action is moot
as to him. Accordingly, that portion of relators' complaint for extraordinary relief




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                             SUPREME COURT OF OHIO




is properly dismissed as moot. The following discussion is limited to May,
defendant in the remaining underlying criminal case pending before Judge Kessler.
       {¶ 9} As to their claim for a writ of mandamus, relators must establish a
clear legal right to have Judge Kessler try May on the ethnic intimidation charge, a
corresponding clear legal duty on the part of Judge Kessler, and the absence of a
plain and adequate remedy at law. State ex rel. Seikbert v. Wilkinson (1994), 

69 Ohio St.3d 489, 490

, 

633 N.E.2d 1128, 1129

. Mandamus may not be employed as
a substitute for appeal from an interlocutory order. State ex rel. Horwitz v.
Cuyahoga Cty. Court of Common Pleas, Probate Div. (1992), 

65 Ohio St.3d 323, 328

, 

603 N.E.2d 1005, 1009

; see, generally, R.C. 2731.05. The state has the right
to appeal even interlocutory orders in a criminal case by leave of the court of
appeals pursuant to R.C. 2945.67. State ex rel. Steckman v. Jackson (1994), 

70 Ohio St.3d 420, 438-439

, 

639 N.E.2d 83, 96-97

. The Court of Appeals for
Montgomery County granted leave for the state to appeal in May's criminal case.
       {¶ 10} Generally, the availability of a discretionary appeal is an adequate
remedy that will preclude a writ of mandamus. State ex rel. Birdsall v. Stephenson
(1994), 

68 Ohio St.3d 353, 356

, 

626 N.E.2d 946, 949

. In other words, extraordinary
remedies like mandamus and prohibition may not be employed before trial on the
merits as a substitute for appeal for the purpose of reviewing mere errors or
irregularities in the proceedings of a court having proper jurisdiction. State ex rel.
Levin v. Sheffield Lake (1994), 

70 Ohio St.3d 104, 109

, 

637 N.E.2d 319, 324

.
       {¶ 11} Nevertheless, in Ohio, it is recognized that a writ of mandamus is an
appropriate remedy to require a lower court to comply with an appellate court's
mandate directed to that court. State ex rel. Potain v. Mathews (1979), 

59 Ohio St.2d 29

, 

13 O.O.3d 17

, 

319 N.E.2d 343

; State ex rel. Schneider v. Brewer (1951),

155 Ohio St. 203

, 

44 O.O. 170

, 

98 N.E.2d 2

. This view comports with the holdings
of the Supreme Court of the United States, as well as other federal and state courts.
Vendo Co. v. Lektro-Vend Corp. (1978), 

434 U.S. 425, 427-428

, 

98 S.Ct. 702

, 703-




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                                January Term, 1995




704, 

54 L.Ed.2d 659, 662-663

; In re Sanford Fork & Tool Co. (1895), 

160 U.S. 247, 255

, 

16 S.Ct. 291, 293

, 

40 L.Ed. 414, 416

; Casey v. Planned Parenthood of
Southeastern Pennsylvania (C.A.3, 1994), 

14 F.3d 848

, 856-857; Hartford Acc. &
Indemn. Co. v. Gulf Ins. Co. (C.A.7, 1988), 

837 F.2d 767, 774

; Cleveland v. Fed.
Power Comm. (C.A.D.C.1977), 

561 F.2d 344

; Ex Parte Ufford (Ala.1994), 

642 So.2d 973

; see, generally, 52 American Jurisprudence 2d (1970), Mandamus,
Section 355.
       {¶ 12} The Supreme Court of the United States has held:
       "When a case has been once decided by this court on appeal, and remanded
to the Circuit Court, whatever was before this court, and disposed of by its decree,
is considered as finally settled. The Circuit Court is bound by the decree as the law
of the case; and must carry it into execution, according to the mandate. That court
cannot vary it, or examine it for any other purpose than execution; or give any other
or further relief; or review it, even for apparent error, upon any matter decided on
appeal; or intermeddle with it, further than to settle so much as has been remanded.
*** If the Circuit Court mistakes or misconstrues the decree of this court, and does
not give full effect to the mandate, its action may be controlled, either upon a new
appeal (if involving a sufficient amount) or by a writ of mandamus to execute the
mandate of this court. *** But the Circuit Court may consider and decide any
matters left open by the mandate of this court; and its decision of such matters can
be reviewed by a new appeal only. *** The opinion delivered by this court, at the
time of rendering its decree, may be consulted to ascertain what was intended by
its mandate; and, either upon an application for a writ of mandamus, or upon a new
appeal, it is for this court to construe its own mandate, and to act accordingly." In
re Sanford Fork & Tool Co., supra, 

160 U.S. at 255-256

, 

16 S.Ct. at 293

, 

40 L.Ed. at 416

; Vendo Co., supra, 

434 U.S. at 427-428

, 

98 S.Ct. at 703-704

, 

54 L.Ed.2d at 662-663

.




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                              SUPREME COURT OF OHIO




        {¶ 13} The Supreme Court of the United States has thus recognized the
availability of either mandamus or appeal as appropriate remedies to secure lower-
court compliance with the Supreme Court's prior mandate.                See, generally,
Annotation, Supreme Court's Views as to Remedies Available in Supreme Court to
Compel Lower Court's Compliance with Supreme Court's Earlier Decision in Case
(1979), 

54 L.Ed.2d 921

, 922, Section 2[a]. An appeal is inadequate if it is not
complete in its nature, beneficial and speedy. State ex rel. Liberty Mills, Inc. v.
Locker (1986), 

22 Ohio St.3d 102, 104

, 22 OBR 136, 137, 

488 N.E.2d 883

, 885-
886. In cases where a lower court refuses to follow a superior court's mandate,
appeal is an inadequate remedy:
        "[E]ven an interlocutory appeal would be an inadequate alternative to
mandamus in these circumstances. The purpose of an appeal is to establish legal
rights. In contrast, the purpose of mandamus is to enforce legal rights that have
already been established. Mandamus proceeds on the assumption that the petitioner
has the legal right asserted. In this case [the petitioner's] position was that the court
of appeals had already decided that the stock did not need to be valued. If he were
to appeal he would be asking the court of appeals to say again what he maintained
the court had already said. Mandamus was the only means available to him to put
teeth into that adjudication. If he were wrong in his interpretation of the decree he
would not be entitled to mandamus, but if he were right mandamus was the
appropriate remedy. ***" Hewitt v. Ryan (Iowa 1984), 

356 N.W.2d 230, 234

.
        {¶ 14} Based upon the foregoing authorities, the availability of an appeal
for the state, from Judge Kessler's decision dismissing the ethnic intimidation
charge against May and ordering May to stand trial on the underlying aggravated
menacing charge, does not preclude relators' action for a writ of mandamus to
compel Judge Kessler's compliance with the mandate in Wyant II.                To hold
otherwise might lead to the result of a lower court perpetually refusing a superior
court's mandate, necessitating repeated, ineffective appeals.




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                                January Term, 1995




       {¶ 15} In the mandate issued in Wyant II, this court ordered that "the
judgment of the court of appeals is reversed and the cause is remanded for a new
trial consistent with the opinion rendered herein." The syllabus of Wyant II
provides that "R.C. 2927.12, the Ohio Ethnic Intimidation Act, is constitutional
under the United States and Ohio Constitutions."
       {¶ 16} Judge Kessler contends that mandamus will not lie because he
merely ruled on the constitutionality of R.C. 2927.12, which is an action within his
judicial discretion. A writ of mandamus will not issue to control judicial discretion,
even if that discretion is abused. State ex rel. Keenan v. Calabrese (1994), 

69 Ohio St.3d 176, 180

, 

631 N.E.2d 119, 122

, citing State ex rel. Kirtz v. Corrigan (1991),

61 Ohio St.3d 435, 439

, 

575 N.E.2d 186, 189

; R.C. 2731.03. However, "[a]bsent
extraordinary circumstances, such as an intervening decision by the Supreme Court,
an inferior court has no discretion to disregard the mandate of a superior court in a
prior appeal in the same case." (Emphasis added.) Nolan v. Nolan (1984), 

11 Ohio St.3d 1

, 11 OBR 1, 

462 N.E.2d 410

, syllabus; Columbus Bd. of Edn. v. Franklin
Cty. Bd. of Revision (1994), 

70 Ohio St.3d 344, 345

, 

639 N.E.2d 25

, 26. As noted
previously, mandamus is an appropriate remedy in these circumstances.
       {¶ 17} Judge Kessler further contends that his dismissal of the ethnic
intimidation charges did not exceed this court's mandate in Wyant II because the
dismissal was on grounds other than free speech rights of the First Amendment to
the United States Constitution. He argues that this court never decided whether
R.C. 2927.12 is unconstitutionally vague. It is axiomatic that the syllabus of an
opinion issued by the Supreme Court of Ohio states the law of the case, and, as
such, all lower courts in this state are bound to adhere to the principles set forth
therein. Smith v. Klem (1983), 

6 Ohio St.3d 16, 18

, 6 OBR 13, 15-16, 

450 N.E.2d 1171, 1173

; Grange Mut. Cas. Co. v. Smith (1992), 

80 Ohio App.3d 426, 431

, 

609 N.E.2d 585, 588

. It is also generally improper for a lower court to determine that
a syllabus of an Ohio Supreme Court opinion is obiter dictum. The Wyant II




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                             SUPREME COURT OF OHIO




syllabus broadly states that R.C. 2927.12 is constitutional and is not limited to
attacks based upon free speech.
       {¶ 18} Further, under S.Ct.R.Rep.Op. 1(B), "[t]he syllabus of a Supreme
Court opinion states the controlling point or points of law decided in and
necessarily arising from the facts of the specific case before the Court for
adjudication." (Emphasis added.) See, also, Worrell v. Athens Cty. Court of
Common Pleas (1994), 

69 Ohio St.3d 491, 495

, 

633 N.E.2d 1130, 1134

. The
vagueness issue was raised in Wyant I and II, as well as in some of the motions for
rehearing.
       {¶ 19} On remand from this court, Judge Kessler again dismissed the ethnic
intimidation charges against May based upon the prior court of appeals' decision
because he found that he was "constrained to follow the unreversed decision of [the
court of appeals in Wyant I]." Judge Kessler now concedes that the court of appeals'
decision was reversed by this court in Wyant II. Since the issue of the alleged
unconstitutional vagueness of R.C. 2927.12 was unquestionably before the court in
May's appeal in Wyant II, our reversal of the court of appeals' judgment, which was
based upon this constitutional ground, manifestly decided the issue. If this was not
intended, reversal would not have been warranted. Therefore, Judge Kessler's
dismissal of the ethnic intimidation charge against May based on the prior court of
appeals' judgment exceeded the scope of this court's mandate on remand.
Accordingly, relators are entitled to a writ of mandamus to compel Judge Kessler
to comply with the Wyant II mandate by proceeding to try May on the ethnic
intimidation charge.
       {¶ 20} As to relators' claim for a writ of prohibition, they must establish that
(1) Judge Kessler is about to exercise judicial or quasi-judicial power, (2) the
exercise of that power is unauthorized by law, and (3) denying the writ will result
in injury for which no other adequate remedy exists in the ordinary course of law.
State ex rel. Keenan, supra, 

69 Ohio St.3d at 178

, 

631 N.E.2d at 121

. While




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                                January Term, 1995




addressing relators' mandamus claim, Judge Kessler's brief does not specifically
respond to relators' prohibition claim. In these circumstances, the availability of an
appeal does not preclude extraordinary relief. State ex rel. Potain, State ex rel.
Schneider, and Vendo Co., supra. Further, absent the stay entered by Judge Kessler
pending resolution of the state's discretionary appeal in May's criminal case, which
stay was issued after the filing of this action by relators, Judge Kessler would
proceed to try May on the underlying aggravated menacing charge. This action is
legally unauthorized because in addition to lacking discretion to depart from a
superior court's mandate, an inferior court also lacks jurisdiction to do so. State ex
rel. TRW, Inc. v. Jaffe (1992), 

78 Ohio App.3d 411

, 

604 N.E.2d 1376

 (retrial of
damages inconsistent with the Supreme Court's opinion would exceed the
jurisdiction of the court). As we stated in State ex rel. Potain, supra, 

59 Ohio St.2d at 32

, 

13 O.O.3d at 18-19

, 

391 N.E.2d at 345

:
       "The doctrine of law of the case is necessary, not only for consistency of
result and the termination of litigation, but also to preserve the structure of the
judiciary as set forth in the Constitution of Ohio.        Article IV of the Ohio
Constitution designates a system of 'superior' and 'inferior' courts, each possessing
a distinct function. The Constitution does not grant to a court of common pleas
jurisdiction to review a prior mandate of a court of appeals." (Emphasis added.)
       {¶ 21} Consequently, relators are entitled to a writ prohibiting Judge
Kessler from proceeding to try May on the lesser aggravated menacing charge
alone. State ex rel. TRW, supra.
       {¶ 22} Accordingly, we grant the requested writs of mandamus and
prohibition to relators as to May's criminal case and dismiss as moot that portion of
the complaint relating to Staton's criminal case.
                                                               Writs granted in part
                                                               and dismissed in part.




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                        SUPREME COURT OF OHIO




       MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
                          __________________




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