IN THE SUPREME COURT OF OHIO
THE STATE OF OHIO, ex rel.
FAITH ANDREWS, CLERK OF
COURTS FOR LAKE COUNTY, OHIO
Relator,
v.
THE COURT OF COMMON PLEAS
OF LAKE COUNTY, OHIO, et al.,
Respondents.
CASE NO: 2022-0409
ORIGINAL ACTION
MEMORANDUM IN RESPONSE TO MOTION TO DISMISS
Edmund W. Searby (No. 0067455)
(COUNSEL OF RECORD)
Kevin J. Kelley (No. 0077707)
PORTER WRIGHT MORRIS & ARTHUR LLP
950 Main Avenue, Suite 500
Cleveland, OH 44113-7201
(440) 443-9000 (Tel.)
(440) 443-9011 (Fax)
L. Bradfield Hughes (No. 0070997)
PORTER WRIGHT MORRIS & ARTHUR LLP
41 South High Street
Columbus, Ohio 43215-6194
(614) 227-2053 (Tel.)
(614) 227-2100 (Fax)
Counsel for Relator Faith Andrews, Clerk of
Courts for Lake County, Ohio
Linda L. Woeber (0039112)
MONTGOMERY JONSON LLP
600 Vine Street, Suite 2650
Cincinnati, OH 45202
Tel: (513) 768-5239
Fax: (513) 768-9244
Kimberly V. Riley (0068187)
MONTGOMERY JONSON LLP
14701 Detroit Avenue, Suite 555
Lakewood, OH 44107
Tel: (440) 779-7978
Counsel for Respondents
Supreme Court of Ohio Clerk of Court - Filed June 24, 2022 - Case No. 2022-0409
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
I. INTRODUCTION .............................................................................................................. 1
II. FACTUAL AND PROCEDURAL BACKGROUND........................................................ 3
III. ARGUMENT ...................................................................................................................... 9
A. The Amended Complaint States Valid Claims For The Issuance Of Writs To
Address Clear Abuses Of Judicial Power Unauthorized Under Law ..................... 9
B. Ms. Andrews States A Valid Claim for A Writ of Prohibition ............................. 10
1. The Judges Have Exercised Judicial Power and Threaten to Continue to
Exercise Judicial Power ............................................................................ 10
2. The Exercise of Judicial Power is Unauthorized by Law ......................... 13
a. The Judges Overstate Their Authority over the Clerk of Courts .. 13
b. The Judges Have No Authority to Override the Constitutional and
Statutory Requirements For the Removal of An Elected Official 14
3. The Orders Constitute Unlawful Prior Restraint In Violation of First
Amendment Rights ................................................................................... 18
4. Ms. Andrews Need Not Demonstrate the Lack of An Adequate Remedy 20
5. There Is No Adequate Remedy ................................................................. 21
6. The May 4 Order Does Not Moot This Action for a Writ of Prohibition . 23
C. The Complaint States A Valid Claim for a Writ of Mandamus ........................... 24
1. Ms. Andrews Has a Clear Legal Right to Have the March Journal Entry
and the May 4 Order Vacated And The Respondents Have An Obligation
To Provide It ............................................................................................. 24
2. Ms. Andrews Lacks An Available Remedy Which Should Foreclose A
Writ of Mandamus .................................................................................... 25
D. The Complaint States A Valid Claim For A Writ Of Quo Warranto ................... 27
IV. CONCLUSION ................................................................................................................. 28
CERTIFICATE OF SERVICE ..................................................................................................... 30
ii
TABLE OF AUTHORITIES
Cases Page(s)
2867 Signers of Petition etc. v. Mack,
66 Ohio App.2d 79, 419 N.E.2d 1108 (9th Dist. 1979) ...........................................................17
Arbino v. Johnson & Johnson,
116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420 ..........................................................18
Bd. of Edn. v. Stringer,
11th Dist. Trumbull Case No. 3664, 1986 Ohio App. LEXIS 6030 (Mar. 21, 1986) .............16
Bell v. Horton,
142 Ohio App.3d 694, 696, 756 N.E. 2d 1241 (2001) .............................................................22
Dorrian v. Scioto Conservancy Dist.,
27 Ohio St.2d 102, 271 N.E.2d 834 (1971) .............................................................................17
Fairview v. Giffee,
73 Ohio St. 183, 76 N.E. 865 (1905) .......................................................................................12
Fed. Home Loan Mortg. Corp. v. Schwartzwald,
134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214 (2012) ..............................................17
In re E.H.,
10th Dist. Franklin No. 15AP-680, 2016-Ohio-1186 ..............................................................22
Krupp v. Poor,
24 Ohio St.2d 123, 265 N.E.2d 268, (1970) ............................................................................24
McMillen v. Diehl,
128 Ohio St. 212, 190 N.E. 567 (1934) ...................................................................................16
N. Ohio Patrolmen’s Benevolent Assn. v. Cty. of Cuyahoga,
8th
Dist. Cuyahoga No. 49656, 1985 Ohio App. LEXIS 8856 (Oct. 17, 1985) ......................21
Osborn v. President, Dirs. & Co. of Bank,
22 U.S. (9 Wheat) 738, 6 L.Ed. 204 (1824) .............................................................................18
Pratts v. Hurley,
102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992 ............................................................17
State ex rel. Balas-Bratton v. Husted,
138 Ohio St.3d 527, 2014-Ohio-1406, 8 N.E.3d 933 ........................................................10, 23
iii
State ex rel. Beane v. City of Dayton,
112 Ohio St.3d 553, 2007-Ohio-811, 862 N.E.2d 97 ..............................................................22
State ex rel. Brubaker v. Lawrence Cty. Bd. of Elections,
2022-Ohio-1087 .......................................................................................................................24
State ex rel. Cin. Enquirer v. Shanahan,
2022-Ohio-448, 185 N.E.3d 1089............................................................................................24
State ex rel. Cody v. Toner,
8 Ohio St.3d 22, 456 N.E.2d 813 (1983) .................................................................................21
State ex rel. Corn v. Russo,
90 Ohio St.3d 551, 740 N.E.2d 265 (2001) .............................................................................12
State ex rel. Corrigan v. Hensel,
2 Ohio St.2d 96, 206 N.E.2d 563 (1965) .................................................................................16
State ex rel. Dieter v. McGuire,
119 Ohio St.3d 384, 894 N.E.2d 680 (2008) .............................................................................9
State ex rel. Ferreri,
70 Ohio St.3d 587, 639 N.E.2d 1189 (1994) ...........................................................................25
State ex rel. Fiser v. Kolesar,
164 Ohio St.3d 1, 2020-Ohio-5483, 172 N.E.3d 1 .......................................................... passim
State ex rel. Hoel v. Brown,
105 Ohio St. 479, 138 N.E. 230 (1922) .............................................................................15, 18
State ex rel. Hunter v. Certain Judges of the Akron Mun. Court,
71 Ohio St.3d 45, 641 N.E.2d 722 (1994) ...............................................................................14
State ex rel. Huntington Ins. Agency v. Duryee,
73 Ohio St.3d 530, 1995-Ohio-337, 653 N.E.2d 349 (1995) ..................................................26
State ex rel. Keith v. McMonagle,
103 Ohio St.3d 430, 2004-Ohio-5580, 816 N.E.2d 597 ..........................................................22
State ex rel. Koren v. Grogan,
68 Ohio St.3d 590, 629 N.E.2d 446 (1994) .............................................................................20
State ex rel. Leis v. Outcalt,
1 Ohio St.3d 147, 438 N.E.2d 443 (1982) ...............................................................................24
iv
State v. Mbodji,
129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025 ........................................................17
State ex rel. Mfg. Corp. v. Ohio Civil Rights Comm’n,
63 Ohio St.3d 179, 586 N.E.2d 105 (1992) .............................................................................20
State ex rel. O’Diam v. Greene Cty. Bd. of Comm’rs,
161 Ohio St.3d 242, 2020-Ohio-3503, 162 N.E.3d 740 ..........................................................16
State ex rel. Rogers v. Brown,
80 Ohio St.3d 408, 1997-Ohio-334, 686 N.E.2d 1126 ............................................................23
State ex rel. Toledo Blade Co. v. Henry Cty Court of Common Pleas,
125 Ohio St.3d 149, 2010-Ohio-1533, 926 N.E.2d 634 ..........................................................19
State ex rel. Yeaples v. Gall,
141 Ohio St.3d 234, 2014-Ohio-4724, 23 N.E.3d 1077 ..........................................................21
State ex rel. Zupancic v. Limbach,
58 Ohio St.3d 130, 568 N.E. 2d 1206 (1991) ..........................................................................26
Tory v. Cochran,
544 U.S. 734, 125 S.Ct. 2108, 161 L.Ed.2d 1042 (2005) ........................................................19
Whitney v. City of Milan,
677 F.3d 292 (6th Cir. 2012) ...................................................................................................19
Zeigler v. Zumbar,
129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405 ..........................................................26
Statutes and Rules
R.C. 3.08 ................................................................................................................................ passim
R.C. 2303.01 ..................................................................................................................................13
R.C. 2303.05 ..................................................................................................................................14
R.C. 2303.08 ..................................................................................................................................14
R.C. 2303.09 ..................................................................................................................................14
R.C. 2303.14 ..................................................................................................................................14
R.C. 2303.26 ..................................................................................................................................13
v
R.C. 2733.06 ..................................................................................................................................26
Sup.R. 45 ..................................................................................................................................24, 25
Other Authorities
41 Ohio Jurisprudence 3d 308, Equity Sec. 205 ............................................................................22
Ohio Constitution Article I, Section 16 .........................................................................................28
Ohio Constitution Article II, Section 38 ....................................................................................7, 15
Ohio Constitution, Article IV, Section 4 .......................................................................................17
https://www.merriman-webster.com/dictionary/ordinance (visited June 22, 2022) ........................6
https://www.supremecourt.ohio.gov/JCS/courtSvcs/dashboards/default.asp
(visited June 23, 2022) .............................................................................................................23
I. INTRODUCTION
In the First Amended Complaint in this action, Relator Faith Andrews, Clerk of Courts
for Lake County, Ohio, detailed how the Respondents, Judges of the Lake County Court of
Common Pleas (collectively “Judges”) have deprived her of her office without due process and
otherwise abused judicial power contrary to law. The Judges’ Motion to Dismiss the First
Amended Complaint (“Motion to Dismiss”) never fairly addresses the allegations in the
Complaint, the shocking orders imposed upon Ms. Andrews, or the law of this Court supporting
the issuance of extraordinary writs to stop an unprecedented abuse of judicial power. Instead, the
Judges set forth pages of boilerplate to support “the inherent authority” of the court and the
“ministerial duties of the clerk,” and then mischaracterize what transpired as “informal
discussions” and benign “directives” as to how Ms. Andrews might better perform her duties
well within the authority of the court.
But this entire argument is predicated upon largely ignoring what is actually alleged in
the Amended Complaint and indisputably stated in the Judges’ orders. The Judges know this, and
they even suggest this Court should not carefully read the orders, see Motion to Dismiss at p. 40
(“[t]his Court … is not obligated to review the minutiae of the Common Pleas Court’s Entry to
evaluate if its determinations were proper in every respect…”), but instead accept conclusory
statements that “each element” is within the inherent authority of the Court. Only in one
footnote, do the Judges acknowledge what is actually at issue in this case: their “inherent
authority is not absolute” and “it does not empower courts to bypass constitutionally sound
statutory requirements in the name of their inherent authority.” Id. at 32, n. 8.
Fairly considered, the Judges’ orders constitute such a clear abuse of authority in
contravention of clearly established constitutional and statutory requirements. The Judges have
2
not simply given direction to Ms. Andrews in the performance of her duties, but have expressly
forbidden her under threat of contempt from being physically present in the courthouse except
for one day a month and reassigned her elected duties without any of the due process clearly
afforded under constitutional and statutory requirements. Specifically, the Judges have
circumvented the sole right of the electorate to initiate a removal action, denied her constitutional
right to notice of the charges in a complaint served upon her, denied her the right to be heard
formally or informally, and denied her the jury trial guaranteed under law. In place, the Judges
have made ex parte findings in a non-existent case where the Respondents serve as plaintiff,
judge, and jury, and Ms. Andrews has no opportunity to offer evidence or even to know the
witnesses against her.
In a further abuse of power, the Judges impose upon Ms. Andrews under penalty of
contempt a naked prior restraint to bar her from making public statements about unethical
conduct in the Clerk’s office or to make any statement about any “person or officer” of the court
that is deemed “denigrating” or “demeaning.” Furthermore, without exhausting the summary of
content offensive to basic legal requirements and fairness, the orders impose extraordinary
security arrangements to suggest without any factual basis that Ms. Andrews is a mentally
imbalanced threat to the physical safety of others and to otherwise harm her reputation in the
eyes of the voters.
Accordingly, by this action, Ms. Andrews seeks to restore the rights and duties of her
elected office subject to potential proceedings that comply with law, and to restore her rights to
freedom of speech. She seeks extraordinary writs, but this an extraordinary case. The Judges’
seek to end this case without any real scrutiny of the extreme judicial misconduct at issue. The
Motion to Dismiss fails on the law. The extraordinary writs of prohibition, mandamus, and quo
3
warranto exist to provide an actual remedy in cases where judges act outside the authority
granted to them. No matter how angry or numerous they may be, the Judges are not above the
law.
II. FACTUAL AND PROCEDURAL BACKGROUND
The complete factual and procedural background is set forth in the First Amended
Complaint at p. 6-23 and in the attached exhibits. Relator Andrews will not restate all of the
allegations herein, but instead highlights certain facts which are dispositive of this motion and
are ignored or mischaracterized in the Motion to Dismiss.
Ms. Andrews is the elected Clerk of Lake County, Ohio. Compl., ¶ 21; Affidavit of Faith
Andrews, ¶ 4 (“Andrews Aff.,” attached to the First Amended Complaint). She campaigned
based upon a promise to improve the transparency, efficiency, and fiscal accountability of the
Clerk’s Office. Compl., ¶ 10; Andrews Aff., ¶ 2.
Ms. Andrews soon learned that even recommending improvements would face resistance
and outright hostility. After Ms. Andrews privately raised with the budget director disagreement
with the Clerk’s Office funding in part a software application not used by the employees of her
office, she received by email from Judge Lucci a letter signed by the Judges addressing
disagreement with her position as to the funding of the software. Amongst other statements, the
letter stated that Ms. Andrews misunderstood her “role” and that her duties were simply
“ministerial.” Andrews Aff., Exhibit A at pp. 1, 6. The letter further threatened to “journalize an
order of the court, but, in the interest of collegiality and cooperation and not airing to the public
internal difficulties caused by your misunderstanding your role, we are providing you an
opportunity to consider this letter as what a journal entry might contain, and comply.” Id., at pp.
5-6.
4
But the typed letter did not resolve the furor towards Ms. Andrews. The following month,
Respondents sent a draft Journal Entry and again reminded Ms. Andrews that her duties are only
ministerial and that she “must obey court orders.” Andrews Aff., Exhibit C at p. 1. The Journal
Entry further directed that the Clerk of Courts “pay one-half of the costs associated with the
operation of the Court’s IT department” and that if the Clerk lacked the funds, the County
Commissioners must pay it. The Journal Entry further accused Ms. Andrews for the first time of
“conduct unbecoming of her office.” Id. at p. 2. The Journal Entry concluded by stating that
“[A]ny violation of this order by the Clerk of Courts or the Board of Lake County
Commissioners shall be considered a contempt of court, and punishable as such by fine and/or
imprisonment.” Id. at p. 4.
The situation only grew worse. On March 4, 2022, Ms. Andrews went to see Judge Lucci
for what she expected to be an informal meeting. Andrews Aff. at ¶ 11. Instead, she was directed
into Judge Lucci’s Courtroom where he sat on the bench with the other Judges present. From the
bench, he excoriated Ms. Andrews without affording her any opportunity to speak. Id. At this
time, Respondent Lucci hand delivered a letter with a journal entry (“March 4 Journal Entry,”
attached as Exhibit E to the Andrews Aff). Id. While Respondents characterize this conduct as
only “administrative,” Judge Lucci caused two Sheriffs to lead Ms. Andrews out of the
Courthouse.
The letter accompanying the Journal Entry stated that the Judges have “investigated a
multitude of claims and allegations,” and forbade her “presence in the Courthouse buildings, the
parking lots, or your office from 4:00p.m. today until Monday, March 7, 2022 at 8:30 a.m.” Id.,
and Exhibit D. The letter further threatened judicial and criminal sanctions warning that failure
to obey “will be considered a criminal trespass, subjecting you to contempt of court and/or
5
criminal charges.” Id. The letter further demanded an answer by noon on Sunday, March 6, 2020
by email to one question, “Will you comply with every provision of this Journal Entry?” Id.
The accompanying March 4, Journal Entry speaks for itself. The Judges tell this Court
that it is only a “draft(s) … devoid of any legal or judicial significance” (Id., at p. 18), but the
March 4 Journal Entry is a twelve page typed Journal Entry with a case caption for a non-
existent judicial matter and signed by some of the Judges. As Judge Lucci’s letter states, it
reflects an investigation of a “multitude of claims and allegations,” and “the exhaustive opinion
of all of the Judges.” Andrews Aff., Exhibit D, at p. 1. While not journalized, the letter plainly
stated that if Ms. Andrews did not agree in writing to comply with its terms, then the Judges
“have a signed original which we will immediately journalize and enforce to the fullest extent of
our authority.” Id., at p. 2. The Journal Entry further provides that “the judges will enforce a
violation of any provision in this order as contempt of court and such shall result in fine and/or
imprisonment.” Id.
Respondents characterize this and the prior Journal Entry as simply “administrative”
orders within the Court’s inherent authority over the operations of the Court, but they do not
acknowledge the following extraordinary provisions in the March 4 Journal Entry:
Forbids Ms. Andrews, the elected clerk, from being present in the Courthouse except
on day a month;
Orders that “the Supervising deputy clerks of court shall oversee the day-to-day
operations of the court”;
Removes her right and duty as Clerk of Courts to supervise the employees in her
office, denying her basic supervisory rights including:
o “to terminate, remove, discipline, or suspend any employee” (¶ 44);
6
o “to withhold” any “salary increases” or “benefits;”
o “to transfer or reassign any employee;”
o “deny … a promotion that otherwise would have been received;”
o “reduce any employee in pay or position” without prior consultation;
o “(H)ire any new employee” without prior consultation; and
o Maintaining a file on any employee (¶ 45).
Extraordinary Security Measures
Without stating any valid justification, the March 4 Journal Entry implemented
extraordinary security measures suggesting that Ms. Andrews posed a physical threat to the
safety of others during her one day a month in the Courthouse, including:
Posting a sheriff’s deputy “in the area of the clerk’s office … whenever the clerk is in
the office” (¶ 43);
“One of the security cameras in the clerk of courts’ office shall be aimed towards and
display the area just outside of the clerk’s personal office…” (¶ 42);
The clerk’s personal office is subject to an administrative search at any time…” (¶
41);
“When the clerk of courts is physically present in the courthouse, the clerk shall pass
through the same security screening as all other employees…” (¶ 39); and
“The clerk may not convey or attempt to convey, or possess or have under her
control, a firearm, other deadly weapon, or dangerous ordnance …”
1
(¶ 40).
1
“Ordnance” is defined as “military supplies including weapons, ammunition, combat vehicles,
and maintenance tools and equipment.” See https://www.merriam-
webster.com/dictionary/ordnance (visited June 22, 2022).
7
Without exhausting the baseless, unlawful, or unconstitutional provisions, the Journal
Entry further included a gag order or prior restraint on speech, providing that “[T]he clerk shall
not make public statements or accusations about allegations she may have about criminal or
other illegal activities occurring within the office of the clerk of courts, unless in consultation
with, or requested by, the prosecutor’s office or law enforcement as part of a bonafide
investigation.” Id., at ¶ 46.
Respondent Judges not only avoid the content of the March 4 Journal Entry, but the fact
that the Judges never afforded Ms. Andrews the opportunity to informally discuss any real
concerns before finalizing it and serving it upon her in open court. Compl. at ¶ 28; Andrews Aff.
at ¶ 16. The Journal Entry further purports to be the product of “a multitude of claims and
allegations” from unnamed sources with the Judges serving as both adversary and factfinder. Ms.
Andrews was provided no advance notice of the allegations against her, afforded no opportunity
to confront the witnesses against her or to even be heard as to the allegations.
In substantially removing Ms. Andrews from the rights and duties of her elective office,
the Judges expressly acknowledged the requirements of Ohio Constitution, Article II, Section 38
and R.C. 3.08, but stated that “such a removal action would take more time than the situation
allows.” March 4 Journal Entry, ¶ 38. With this justification, the Judges removed Ms. Andrews
from her elected position without complying with the constitutional and statutory requirements.
Without hope of informally resolving this dispute, Ms. Andrews filed this action on April
18, 2022. Unable to perform her duties while excluded from the Courthouse on all but one day a
month, Ms. Andrews notified the Court that she intended to return physically to her office full
time. Andrews Aff., at ¶ 28. This Ms. Andrews did without incident on May 2 and May 3, 2022.
8
However, the next day – May 4, 2022 – the Respondents journalized a twenty-six page
journal entry (“the May 4 Order”). Andrews Aff., Exhibit I. The May 4 Order repeated the same
unlawful directives summarized above. See also Compl., ¶ 48. To wit, the May 4 Order again
barred Ms. Andrews from being physically present in the Courthouse but one day a month, and
ordered that the “supervising deputy clerks of court shall oversee the day-to-day operations of
the Court.”
Like the March Journal Entry, the May 4 Order again acknowledged the Ohio
Constitutional and statutory requirements to remove an elected official from office, but expressly
declined to follow, the required process because it was not a “timely remedy.” Id. at ¶ 98.
Although Ms. Andrews strongly challenged the extreme security measures imposed in the
March Journal Entry and the lack of any proof they were necessary, the May Order imposed the
same security measures (posting a deputy “in the area of the Clerk’s Office, aiming a security
camera at her door, subjecting her to intrusive administrative search,” and others) still without
stating any specific facts to support their necessity. Respondents again contrived the false and
defamatory portrayal of Ms. Andrews as a mentally unbalanced individual who poses a threat to
the physical safety and well-being of others.
2
This time, however, knowing that the Journal Entry
would be available for all, the Respondents include a gratuitous (and false) allegation that Ms.
Andrews spoke in “graphic detail about sex acts she performed with her husband” at a Clerk’s
Office holiday party. Id., at ¶ 48.
Whether or not the allegations and findings made against Ms. Andrews are true or false,
the May 4 Order again denies all due process to Ms. Andrews. It is purportedly entered in a
2
In the May 4 Order, the Respondent Judges dropped the prior reference to her as “paranoid.” Id.
at ¶ 48.
9
fictitious case: Lake County Court of Common Pleas vs. Defendant, Case No. 22AA000001. Ms.
Andrews still has not been served with any complaint or other advance notice of the charges
against her, much less a complaint endorsed by 14,000 electors in Lake County (the approximate
number of electors required for recall under R.C. 3.08). She has still not been afforded the
opportunity to be heard. She has not been afforded the trial required under law. Based upon
anonymous sources, the Judges who are the plaintiff prosecuting the allegations against her also
purport to make judicial findings against her.
Following the May 4 Order, Ms. Andrews filed her First Amended Complaint
incorporating the May 4 Order. Respondents have moved to dismiss, and for the reasons that
follow, including the complete lack of jurisdiction of the Court of Common Pleas and abuse of
judicial power, this motion to dismiss should be denied and the writs granted.
III. ARGUMENT
A. The Amended Complaint States Valid Claims For The Issuance Of Writs To
Address Clear Abuses Of Judicial Power Unauthorized Under Law
Ms. Andrews respectfully seeks extraordinary writs to stop extraordinary abuses of
judicial power, to compel the Judges to follow basic Constitutional and statutory limits, and to
restore the rights and duties of her elected office. The Judges move this Court to dismiss this
action without fair consideration of what they have actually done. This is not the law.
In reviewing this complaint or petition, this Court presume all factual allegations to be
true, and makes all reasonable inferences in Ms. Andrew’s favor. State ex rel. Dieter v. McGuire,
119 Ohio St.3d 384, 387, 894 N.E. 2d 680 (2008). Dismissal is only appropriate if “it appears
beyond doubt that they could prove no set of facts entitling them to the requested extraordinary
relief.” Id. The Judges acknowledged this standard (Motion to Dismiss at p. 5), but then largely
ignore the specific allegations at issue.
10
B. Ms. Andrews States A Valid Claim for A Writ of Prohibition
Ms. Andrews seeks a writ of prohibition to stop the exercise of judicial power which is
contrary to and unauthorized under law. To demonstrate entitlement to a writ of prohibition, Ms.
Andrews must establish that (1) the Judges are “about to or [have] exercised judicial or quasi-
judicial power, (2) the exercise of that power is unauthorized by the law, and (3) denying the writ
would result in injury for which no other adequate remedy exists in the ordinary course of law.”
State ex rel. Fiser v. Kolesar, 164 Ohio St.3d 1, 2020-Ohio-5483, 172 N.E.3d 1, ¶ 7, quoting
State ex rel. Balas-Bratton v. Husted, 138 Ohio St.3d 527, 2014-Ohio-1406, 8 N.E.3d 933, ¶ 15.
1. The Judges Have Exercised Judicial Power and Threaten to Continue to
Exercise Judicial Power
The Judges concede that the May 4 Order qualifies as an exercise of judicial authority
(Motion to Dismiss at p. 15), but argue that the prior Orders and directives that were not
journalized are only administrative. This argument is not dispositive of this motion and also
invalid.
As an initial matter, the allegations of the Complaint demonstrate that the Judges’
contentions are without merit. For example, the March Journal Entry
3
and accompanying letter is
plainly an exercise of judicial authority. In serving Ms. Andrews with these documents, Judge
Lucci took the bench in an obvious display of judicial authority. Andrews Aff. at ¶ 11. At the
Judges’ direction, two sheriffs’ deputies then escorted Ms. Andrews out of the Courthouse. Id.
This was not an “informal discussion.” Motion to Dismiss at p. 25 (claiming that at the time of
3
In a fine example of this Orwellian nature of this case, the Judges state that Ms. Andrews
“regularly mischaracterizes these unjournalized draft entries and orders as “Journal Entries” or
“Orders.” Motion at 17. The Judges themselves titled the March 4 Journal Entry as a “Journal
Entry” and signed it. The word “draft” nowhere appears on this document.
11
the initial filing, Ms. Andrews “alleged the Common Pleas Court had only engaged in the
informal discussions and provisions of draft entries…”).
Nor is the characterization of the Judges prior orders as “not binding” “unenforceable
drafts devoid of legal significance” (Motion to Dismiss at p. 18) true or fair. For example, Judge
Lucci’s letter served with the March Journal Entry states “The judges forbid your entry into or
presence in the courthouse buildings” and that a violation “will be considered a criminal
trespass, subjecting you to contempt of court and/or criminal charges.” Andrews Aff.,
Exhibit D (emphasis in the original). This was not some “nonbinding” directive but a clear
exercise of immediate judicial power. Fiser at ¶ 14 (threat of contempt is a judicial act).
Furthermore, the Judges made clear that unless Ms. Andrews agreed to be bound by the
March Journal Entry, “the judges have a signed original which we will immediately journalize
and enforce to the fullest extent of our authority.” Andrews Aff., Exhibit D at p. 2. By these
terms, the Journal Entry communicated to Ms. Andrews that she would be punished for action
occurring prior to the filing of the signed Journal Entry.
In any event, the Judges’ efforts to “walk back” signed documents because they were not
filed or journalized is misplaced. A writ of prohibition applies where a court has not only
exercised judicial authority but “is about to” exercise judicial or quasi-judicial power. Fiser at ¶¶
27-28. A signed twelve page “Journal Entry” that will be “immediately” filed and enforced under
penalty of “contempt of court,” resulting in “fine and/or imprisonment” is certainly a threatened
exercise of “judicial or quasi-judicial power.”
In Fiser, this Court held a journal entry by the administrative judge vacating another
judge’s pay raises for court personnel to be judicial action and granted a writ of prohibition
against the vacating order. Id. at ¶ 23. This Court rejected the administrative judge’s argument
12
that the vacating entry was not an exercise of judicial power because “the entry addressed a
matter internal to the Court rather than resolving a dispute between litigants before the Court.”
Id. at ¶ 9. In finding judicial action, this Court emphasized the administrative judge’s threat of
contempt. Id. at ¶ 14, quoting State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 555, 740 N.E.2d
265 (2001) (“[W]e cannot ignore the fact that Judge Kolesar issued his threat in an attempt ‘to
compel obedience to a court order,’ which is a feature of a civil-contempt sanction”). Here, as in
Fiser, the Judges not only threatened contempt (with fines and/or imprisonment) but in fact
ordered on March 4 that Ms. Andrews leave the Courthouse and faced contempt of court and/or
criminal charges if she returned. Andrews Aff., Exhibit D at p. 2. As in Fiser, these orders
constituted judicial conduct “in an attempt to compel obedience” with a court order.
Likewise, the substance of the March Journal Entry like the later filed May 4 Order has a
clear (yet improper) “core judicial” function of making findings of fact and applying the law to
the facts. Fiser at ¶ 13, citing Fairview v. Giffee, 73 Ohio St. 183, 190, 76 N.E. 865 (1905) (“It is
indisputable that it is a judicial function to hear and determine a controversy between adverse
parties, to ascertain the facts, and applying the law to the facts, to render a final judgment”).
Here, fairly considered, the March Journal Entry makes substantial findings of fact based
upon review of a multitude of claims and allegations.” Andrews Aff., Exhibit E at ¶¶10-33. The
transmittal letter for the March Journal Entry (Andrews Aff., Exhibit D) at page 1 sets forth the
law purportedly establishing the Judge’s authority over the Clerk and then issues under penalty
of contempt of court the extraordinary “directives that follow.” While, as discussed below,
patently outside the authority of the Court, this is unquestionably judicial conduct and it is
plainly intended to invoke the authority of the Court.
13
Even if the Journal Entry, letter, and other orders entered prior to filing did not constitute
judicial action -- which for the reasons set forth above it does -- then this first element would still
be satisfied by the May 4 Order which is conceded to be judicial action.
2. The Exercise of Judicial Power is Unauthorized by Law
The Judges make no real effort to demonstrate that their specific directives in the March
Journal Entry or the May 4 Order are authorized under law.
4
Instead, the Judges set forth general
case law regarding the duties of a Clerk and the Court’s “inherent authority” over this
“ministerial” office while avoiding mention of what they actually ordered and the lack of
authority under law. They then claim in a conclusory fashion that their conduct falls within that
inherent authority, and that this Supreme Court “is not obligated to review the minutiae of the
Common Pleas Court’s Entry to evaluate if its determinations were proper in every respect – it
need only determine the Court was authorized to direct the Clerk’s conduct in the areas it did.”
Motion to Dismiss at pp. 39-40.
a. The Judges Overstate Their Authority over the Clerk of Courts
As an initial matter, the scope of R.C. 2303.26 does not permit the level of control
claimed by the Judges. The General Assembly created the office of the clerk in R.C. 2303.01.
R.C. 2303.26 provides, “[t]he clerk of the court of common pleas shall exercise the powers
conferred and perform the duties enjoined upon the clerk by statute and by the common law; and
in the performance of official duties the clerk shall be under the direction of the court [of
common pleas].”
4
The Judges float the proposition that “so long as an order proceeds with some subject matter
jurisdiction, prohibition is not an appropriate remedy, even if that order is allegedly overbroad or
erroneous.” Motion to Dismiss at p. 24-25. Not surprisingly, the Judges can cite no authority in
support. While unclear what is meant by “overbroad,” it cannot logically support the idea that
once a court has subject matter jurisdiction to order something, that it can order something else
without any authority and a writ of prohibition is unavailable to stop it.
14
The “official duties” are enumerated in other statutes. R.C. 2303.08 describes the
mechanics of filing and making records. R.C. 2303.09 requires the clerk to "file together and
carefully preserve in his office all papers delivered to him for that purpose in every action or
proceeding," and R.C. 2303.14 directs the clerk to “keep the journals, records, books, and papers
appertaining to the court and record its proceedings.”
None of the complained-of elements of the March Journal Entry and the May 4 Order
address the “direction” of the “official duties.” Nor do the Judges cite any other legal authority
for their extreme usurpation of the Clerk’s duties, but instead implicitly rely on the absence of a
direct prohibition. But as Justice Douglass said in dissenting from the dismissal of an original
action brought by a clerk, “I have been unable to find in those sections (concerning the authority
of municipal judges) or in any other section the right of the judges to control, direct, or otherwise
interfere with the operation of the clerk’s office.” State ex rel. Hunter v. Certain Judges of the
Akron Mun. Court, 71 Ohio St.3d 45, 50, 641 N.E.2d 722 (1994).
Furthermore, the Judges unlawfully usurp Ms. Andrews’ authority to appoint her own
deputy clerks provided by R.C. 2303.05. May 4 Order at ¶ 111. Indeed, in further implicit
contradiction of this provision, the Judges reassigned Ms. Andrews rights to supervise the day-
to-day operations of the court to the deputy clerks. Id. at ¶ 100.
b. The Judges Have No Authority to Override the Constitutional and
Statutory Requirements For the Removal of An Elected Official
In a footnote, the Judges finally acknowledge their inherent authority is not absolute – it
does not empower courts to bypass Constitutionally sound statutory requirements in the name of
their inherent authority.” Motion to Dismiss at p. 32, fn. 8.
Of course, the Judges have not simply directed her in the performance of Ms. Andrews’
duties; they effectively removed her from her elected office. Under the March Journal Entry and
15
the May 4 Order, the Judges forbid Ms. Andrews from being physically present in the
Courthouse but for one day a month, and they have reassigned her duties to “[t]he supervising
deputy clerks of court [who] shall oversee the day-to-day operations of the Court.” Andrews Aff,
Exhibit E at ¶ 37, Exhibit I at ¶ 100. The Judges further have removed all right to supervise her
staff. Id., Exhibit I at ¶ 111.
Moreover, these actions and orders plainly violate constitutional and statutory
prerequisites to the removal of an elected official from office. Article II, Section 38 of the Ohio
Constitution provides that the removal of officers requires “complaint and hearing.” Long ago,
this Court recognized that this constitutional provision “clearly and concretely extends to” all
officers “due process of law…a law, which hears before it condemns; which proceeds upon
inquiry, and renders judgment only after trial.” State ex rel. Hoel v. Brown, 105 Ohio St. 479,
487, 138 N.E. 230 (1922).
Consistent with these principles, R.C. 3.08 mandates that the removal of public officers
“shall be commenced by the filing of a written or printed complaint specifically setting forth the
charge” and “signed by qualified electors,” “not less in number than percent of the total vote cast
for governor in the political subdivision whose officer it is sought to remove.” The statute further
provides for a hearing within “thirty days from the date of the filing of the complaint by said
electors,” and a trial by twelve jurors if demanded “by the officer against whom the complaint
has been filed.” Id.
In effectively removing Ms. Andrews from her elected office, the Judges have acted in
callous disregard of all of these constitutional and statutory requirements. There has been no
complaint specifying the charges against her, much less one signed by fifteen percent of the
electors, no opportunity for Ms. Andrews to be heard or present witnesses in her favor, and no
16
right to trial by jury. Compare R.C. 3.08. By this complete denial of due process, the Judges
further serve both as accuser and finder of fact in perversion of the most basic norms of our
system of justice.
As to the constitutional and statutory requirements blocking their desired course of
conduct, the Judges simply stated that “the removal action would fail to provide a timely remedy
for the reported events the Judges conclude threaten the ongoing operations of their courts; it
would likewise fail to adequately address their concerns about treatment of court staff and others
accessing court services.” May 4 Order, at ¶ 98. In short, the Judges claim the inherent authority
to do whatever they deem necessary even if it contravenes constitutional and statutory
requirements.
This Court not surprisingly has clearly stated to the contrary: “the inherent power of a
court does not allow a judge to sidestep an otherwise constitutional statutory process.” State ex
rel. O'Diam v. Greene Cty. Bd. of Comm’rs, 161 Ohio St.3d 242, 2020-Ohio-3503, 162 N.E.3d
740, ¶ 12. Furthermore, removal is a disfavored quasi-penal proceeding and its requirements are
“strictly construed.” Bd. of Edn. v. Stringer, 11th Dist. Trumbull Case No. 3664, 1986 Ohio App.
LEXIS 6030, at *4 (Mar. 21, 1986), citing McMillen v. Diehl, 128 Ohio St. 212, 215, 190 N.E.
567 (1934) and State ex rel. Corrigan v. Hensel, 2 Ohio St.2d 96, 99, 206 N.E.2d 563 (1965).
The statutory requirement the Judges cite to excuse the denial of all due process is the
requirement of a complaint signed by 15% of the electors in the most recent gubernatorial
election (calculated by the Judges to require 14,271 signatures from Lake County voters). This
requirement is not discretionary, but is mandated by the word “shall” contained in R.C. 3.08
(“proceedings for the removal of public officers … shall be commenced by the filing of a written
complaint … signed by qualified electors.”) “The word ‘shall’ is usually interpreted to make the
17
provision in which it is contained mandatory, especially if frequently repeated.” Dorrian v.
Scioto Conservancy Dist., 27 Ohio St.2d 102, 107, 271 N.E. 2d 834 (1971). The denial of this
mandatory requirement not only deprives Ms. Andrews of a legal and constitutional safeguard,
but constitutes a clear abuse of judicial power at the expense of the voters.
The Ohio Constitution, Article IV, Section 4, limits the jurisdiction of the Courts of
Common Pleas “to justiciable matters.” Without a complaint brought by the voters, there was not
justiciable controversy conferring jurisdiction to remove Ms. Andrew from her elected office.
“‘Jurisdiction’ means the courts’ statutory or constitutional power to adjudicate the case.” Pratts
v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E. 2d 992, ¶ 11. Plainly and
unambiguously, the Judges lacked statutory or constitutional power to adjudicate a case lacking
in the complaint required by the Ohio Constitution and the signatures of voters to the complaint
at the least mandated by statute. See 2867 Signers of Petition etc. v. Mack, 66 Ohio App.2d 79,
419 N.E.2d 1108 (9th Dist.1979) (discussing the requirements of both signatures and a valid
complaint to commence an action to remove a public official); State v Mbodji, 129 Ohio St.3d
325, 2011-Ohio-2880, 951 N.E. 2d 1025, ¶ 1 (“We hold that a complaint that meets the
requirements of Crim. R. 3 invokes the subject-matter of a trial court”). Here, there was no
complaint. Accordingly, the Judges lacked not only subject-matter jurisdiction
5
over the dispute
but personal jurisdiction over Ms. Andrews. See Pratts at ¶ 11 (the term “jurisdiction”
“encompasses jurisdiction over the subject matter and over the person … it is a condition
precedent to the court’s ability to hear the case.”) (internal quotation omitted).
5
As R.C. 3.08 expressly only confers standing upon the voters to bring a removal action, the
Judges patently lack authority to do so and the court lacks jurisdiction. See, Fed. Home Loan
Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 18, 2012-Ohio-5017, 979 N.E. 2d 1214
(2012) (“standing to sue is required to invoke the jurisdiction of the common pleas court”).
18
The Judges further exercised power unauthorized by law in removing Ms. Andrews and
making findings against her without affording her the opportunity to be heard guaranteed by the
Ohio Constitution, State ex rel. Hoel, 105 Ohio St. at 487 (all Ohio officers guaranteed due
process “which hears before it condemns”), and the right to trial by jury guaranteed by statute.
Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E. 2d 420, ¶ 31 (the
right to trial by jury “serves as one of the most fundamental and long-standing rights in our legal
system…it was ‘[d]esigned to prevent government oppression and to promote the fair resolution
of issues.’”) (citation omitted). Without affording a trial or other due process, we can have no
confidence in the outcome.
In short, the Judges’ usurpation of the electors’ role as plaintiff and the people’s role as
jury is a wholesale denial of due process and a flagrant exercise of power unauthorized by law.
The Judges claim a necessary expediency and an inherent authority to override the clear dictates
of the Constitution and Ohio law (despite the fact that R.C. 3.08 provides for a hearing “within
thirty days”). This is a rejection of the rule of law. As the Supreme Court famously observed,
“[j]udicial power is never exercised for the purpose of giving effect to the will of the Judge;
always for the purpose of giving effect to the will of the Legislature, or in other words, to the
will of the law.” Osborn v. President, Dirs. & Co. of Bank, 22 U.S. (9 Wheat.) 738, 866, 6 L.Ed.
204 (1824).
3. The Orders Constitute Unlawful Prior Restraint In Violation of First
Amendment Rights
Finally, the Judges further demonstrated the breadth of their disregard for basic
constitutional rights in imposing a gag order providing that “the clerk shall not make public
statements or accusations about allegations she may have about criminal or other illegal activities
occurring within the office of the Clerk of Courts, or by predecessors in the office of the Clerk of
19
Courts, unless in consultation with or requested by, the prosecutor’s office or law enforcement as
part of a bona fide investigation.” March Journal Entry, at ¶ 46. This gag order is a “prior
restraint”: a judicial order that “operate(s) to forbid expression before it takes place.” State ex rel.
Toledo Blade Co. v. Henry Cty Court of Common Pleas, 125 Ohio St.3d 149, 2010-Ohio-1533,
926 N.E.2d 634, ¶ 20. “[P]rior restraints on speech [] are the most serious and least tolerable
infringement on First Amendment rights.” Id., quoting Tory v. Cochran, 544 U.S. 734, 738, 125
S.Ct. 2108, 161 L.Ed.2d 1042 (2005). “Prior restraints are simply repugnant to the basic values
of an open society.” Id. (citation omitted). Moreover, the restraint here is particularly egregious
because it gags public statements about illegal activity in government, a subject recognized to be
a matter of public concern. See Whitney v. City of Milan, 677 F.3d 292, 297 (6th Cir. 2012).
(collecting cases supporting that speech concerning allegations of corruption or misconduct in
government involves a matter of public concern.)
After the filing of this action and no doubt advised by how indefensible this gag order
was, the Judges tweaked it in the May 4 Order to only bar “unsupported public statements or
accusations …” and not “where her statements are protected by state or federal law.” May 4
Order, at ¶ 110. This revised gag order is still in context an unlawful prior restraint (without
expiration date) with, at a minimum, a chilling effect on free speech regarding a matter of public
concern. For to speak a concern, she risks a finding of contempt of court, previously defined to
be punishable by imprisonment and fines. And who will determine if her statement is
“supported,” the same inherently conflicted judges who signed the March Journal Entry and the
May 4 Order and who have denied her due process of law and basic fairness? Who will decide
whether Ms. Andrews public statements are “expressly protected by state or federal law?” Those
20
same Judges who either believed an obviously “repugnant” prior restraint was lawful or simply
did not care.
Furthermore, the May 4 Order contains other directives without expiration that suppress
free speech such as any speech about “any person or officer” of the court which is “denigrating”
or “demeaning.” May 4 Order, at ¶ 122.
6
By these terms, Ms. Andrews is gagged from criticizing
any employee or publicly responding to the allegations made against her.
There can be no dispute that the Judges’ have abused their authority in gagging Ms.
Andrews, and the Judges do not even address the allegations in moving to dismiss.
4. Ms. Andrews Need Not Demonstrate the Lack of An Adequate Remedy
As to the third and final element, the Judges contend that Ms. Andrews has an adequate
remedy in other legal actions. However, demonstrating the lack of an adequate remedy is
unnecessary where, as here, “the court patently and unambiguously lacks jurisdiction to act.”
State ex rel. Koren v. Grogan, 68 Ohio St.3d 590, 595, 629 N.E. 2d 446 (1994); accord Fiser at ¶
11 (the second and third elements of a petition for a writ of prohibition may be satisfied by
showing that the lack of jurisdiction is patent and unambiguous); State ex rel. Mfg. Corp. v. Ohio
Civil Rights Comm’n, 63 Ohio St.3d 179, 180, 586 N.E. 2d 105 (1992) (“we may grant a writ of
prohibition if a judicial or quasi-judicial tribunal patently and unambiguously lacks jurisdiction,
despite a relator’s having an adequate remedy of law.)
As set forth above, the Judges not only lacked authorization under law, they “patently”
and “unambiguously” lacked jurisdiction to enter orders in a non-existent case styled “Lake
County Court of Common Pleas, plaintiff vs. Defendant, Case No. 22AA000001. Andrews Aff.,
Exhibit I. Moreover, they plainly lacked jurisdiction to make findings and issue orders in a
6
The Judges’ concern for “denigrating” or “demeaning” statements does not extend to their
statements about Ms. Andrews in the March Journal Entry and May 4 Order.
21
fictitious action wherein they were the listed adverse party. Furthermore, they certainly lacked
jurisdiction to remove Ms. Andrews from her elected office and reassign her day-to day
oversight without a complaint endorsed by the required number of electors, to deny the trial by
jury required under law, or even the opportunity to be heard. Finally, the Judges patently and
unambiguously lacked jurisdiction to issue gag orders against Ms. Andrews in violation of the
First Amendment.
5. There Is No Adequate Remedy
Even if the Judges did not patently and ambiguously lack jurisdiction – which in fact they
did and do lack – Ms. Andrews can demonstrate that there is no adequate remedy. To be
adequate, an available remedy must be “adequate under the circumstances of the case,” State ex
rel. Cody v. Toner, 8 Ohio St.3d 22, 23, 456 N.E. 2d 813 (1983), and be “complete in nature,
beneficial, and speedy.” State ex rel. Yeaples v. Gall, 141 Ohio St.3d 234, 2014-Ohio-4724, 23
N.E.3d 1077, ¶ 33.
Here, the Judges claim that Ms. Andrews has an adequate remedy at law in a direct
appeal. This is plainly not the case. The March Journal Entry is conceded by the Judges not to be
a final order (they even wrongly characterize it as a draft). Following the service upon her in
court of this document, she filed this action for a writ of prohibition against the shocking
directives in this Journal Entry. Barred from her elected office (except one day a month), denied
any opportunity to be heard, formal or informal, and gagged from certain public speech. Ms.
Andrews understandably sought a writ of prohibition rather than waiting for a final appealable
order.
7
7
Given the level of animus demonstrated by the Judges against Ms. Andrews, she should not be
expected to force a finding of contempt to seek appellate review. By the express terms of the
March Journal Entry and the May 4 Order, such a gambit would result in her arrest and
imprisonment while she hoped some higher court would intervene.
22
The Judges claim that the May 4 Order – journalized only after Ms. Andrews filed this
original action – created an adequate remedy in the form of a direct appeal. This is not correct.
The availability of an adequate remedy is determined at the time of the filing of the action for
extraordinary relief. N. Ohio Patrolmen’s Benevolent Assn. v. Cty. of Cuyahoga, 8th Dist.
Cuyahoga No. 49656, 1985 Ohio App. LEXIS 8856, at *5 (Oct. 17, 1985), citing 41 Ohio
Jurisprudence 3d 308, Equity Sec. 205. Because the Judges do not claim a final appealable order
at the time of filing of this original action, a direct appeal would not be an adequate remedy.
Furthermore, the May 4 Order – journalized only after the filing of this action – is not a
final appealable order. “A judgment that leaves issues unresolved and contemplates that further
action must be taken is not a final appealable order.” State ex rel. Keith v. McMonagle, 103 Ohio
St.3d 430, 2004-Ohio-5580, 816 N.E.2d 597, ¶ 4, quoting Bell v. Horton, 142 Ohio App.3d 694,
696, 756 N.E. 2d 1241 (2001). The May 4 Order not only fails to indicate that it is a final
judgment, but expressly “contemplates…further action.” It states that the courts will be in an
ongoing and regular state of evaluating “whether the conduct, climate and concerns outlined in
this Entry have improved to a sufficient degree to warrant modification of its terms.” May 4
Order, at ¶ 136. It further contemplates the issuance of “subsequent Journal Entries to identify
relevant changes to the circumstances outlined above, as well as an analysis of whether the
directives within this Entry are ripe for modification.” Id. at ¶ 137. Accordingly, had Ms.
Andrews taken a direct appeal from this Order, it would have been surely dismissed for lack of
appellate jurisdiction. In re E.H., 10th Dist. Franklin No. 15AP-680, 2016-Ohio-1186, ¶ 25 (a
court order leaving a matter “open for further review” does not constitute a final appealable
order).
23
Even if Ms. Andrews had a direct appeal – which she does not – it would not be
“complete, beneficial, and speedy.” State ex rel. Beane v. City of Dayton, 112 Ohio St.3d 553,
2007-Ohio-811, 862 N.E.2d 97, ¶ 31. First, with the finite term of her elected office ticking
down, the importance of a “speedy” remedy is all the more important. A direct appeal may take
more than a year or longer.
8
Second, while up on appeal or even after a successful appeal, the
Judges can continue to issue orders based on claimed additional information from unnamed
sources which is in fact what they indicate they will do. May 4 Order at ¶ 137. An extraordinary
writ is necessary to bring closure to this unfortunate dispute.
6. The May 4 Order Does Not Moot This Action for a Writ of Prohibition
The Judges also suggest that by filing the May 4 Order, they mooted the action for a writ
of prohibition because the act sought to be prevented had been completed. Motion to Dismiss at
p. 26. This is not a correct statement of law. This Court has repeatedly recognized that a writ of
prohibition applies where respondent “is about to or has exercised judicial or quasi-judicial
power.” Fiser at ¶ 7 (emphasis added), quoting Balas-Bratton at ¶ 15; accord State ex rel. Rogers
v. Brown, 80 Ohio St.3d 408, 410, 1997-Ohio-334, 686 N.E.2d 1126 (court of appeals erred in
holding journalization of entry mooted complaint for a writ of prohibition because prohibition
will lie to prevent future events and to correct “previous jurisdictionally unauthorized actions.”)
Furthermore, as the Judges themselves indicate an intention to file additional orders, a writ of
prohibition for prospective relief remains an issue. May 4 Order at ¶ 137.
8
The Court’s interactive dashboards for the Courts of Appeals indicate that the “overall time
standard for all case types is 210 days from appeal filing to the release of the opinion…” See
State of Ohio Court Statistics,
https://www.supremecourt.ohio.gov/JCS/courtSvcs/dashboards/default.asp (visited June 23,
2022).
24
Because Ms. Andrews has sufficiently alleged the elements entitling her to a writ of
prohibition, the Motion to Dismiss should be denied as to this claim.
C. The Complaint States A Valid Claim for a Writ of Mandamus
In the Amended Complaint, Ms. Andrews requested a writ of mandamus. Id., ¶¶ 56-66.
To be entitled to the writ, she must present evidence that she has a clear legal right to the
requested relief; respondents have a legal duty to provide it; and Ms. Andrews lacks an adequate
remedy in the course of the law. State ex rel. Brubaker v. Lawrence Cty. Bd. of Elections, 2022-
Ohio-1087, ¶ 9.
1. Ms. Andrews Has a Clear Legal Right to Have the March Journal Entry
and the May 4 Order Vacated And The Respondents Have An Obligation
To Provide It
The Judges generally contend that Ms. Andrews does not have a clear legal right to
vacate an order implicating “judicial discretion.” As an initial matter, the Judges fail to cite any
case in which the “judicial discretion” concept was utilized in the context of the purportedly
“administrative” orders issued here.
Regardless, for the reasons described in Section III(B)(2)-(4) above, the impact of the
March Journal Entry and the May 4 Order are outside any judicial discretion. When a court lacks
judicial discretion, mandamus will issue to require vacating the order. State ex rel. Leis v.
Outcalt, 1 Ohio St.3d 147, 150, 438 N.E.2d 443 (1982).
The whole concept of “judicial discretion” as a bar to mandamus here is a red herring.
Judicial discretion has been defined in Ohio as “the option which a judge may exercise between
the doing and not doing of a thing which cannot be demanded as an absolute legal right, guided
by the spirit, principles and analogies of the law, and founded upon the reason and conscience of
the judge, to a just result in the light of the particular circumstances of the case.” Krupp v. Poor,
25
24 Ohio St.2d 123, 265 N.E.2d 268 (1970). Judicial discretion implies the existence of a case.
There simply is not one here.
Were there any question on the issue, in the recently issued State ex rel. Cin. Enquirer v.
Shanahan, 2022-Ohio-448, 185 N.E.3d 1089, ¶ 28, this Court reviewed de novo the factual
findings under a Sup.R. 45 decision sealing an affidavit from public access. The trial court
argued that judicial discretion controlled its decision in the sealing matter. This Court ultimately
issued the mandamus order, requiring the trial court to release the document to the public.
This Court appropriately overruled the trial court’s discretion which required a written
decision finding by “clear and convincing evidence” a series of factors and a hearing if
requested. Sup.R. 45(E). Here, the Judges made factual findings based off of nothing reported
under oath or subject to cross-examination. This Court clearly has the province to review such
unsupported factual findings to determine whether mandamus should require vacating the
applicable orders, or to order the due process required under law.
2. Ms. Andrews Lacks An Available Remedy Which Should Foreclose A Writ
of Mandamus
As with the writ of prohibition, the Judges argue that there is an adequate remedy in a
direct appeal from the May 4 Order. As set forth above, this argument fails because (1) the
availability of an adequate remedy is determined as of the time of filing of this original action;
(2) the May 4 Order is not a final appealable order because it expressly contemplates further
action and orders from the court; and (3) direct appeal does not constitute a “complete,
beneficial, and speedy” remedy. See State ex. rel. Ferreri, 70 Ohio St.3d 587, 592, 639 N.E. 2d
1189 (1994). The authority and argument in support of these grounds is cited above and
incorporated herein.
26
The Judges also argue that Ms. Andrews has an adequate remedy in a declaratory
judgment action. This is not the case. The filing of such an action would not be substantially
certain to be “complete, beneficial, or “speedy.” After all, where would such an action be filed?
To file it in a neighboring county in an effort to draw an independent judge would invite a
motion to dismiss for lack of venue. To file in Lake County would risk a time consuming and
uncertain fight to disqualify the Judges from litigating a matter in which they are obviously
hostile and conflicted. Any inclination to assume that the Judges would recuse themselves must
be re-examined in light of the provision in the May 4 Order providing for an inherently
conflicted panel of the Respondent Judges to determine whether Ms. Andrews should be held in
contempt. See May 4 Order, at ¶¶ 132, 133.
All of these issues would open up a variety of opportunities for the Judges to take appeals
that like a direct appeal would expend at least a year, if not longer, of her remaining term in
office. And, if Ms. Andrews somehow obtained a declaratory judgment stating the obvious – that
the Judges are acting in violation of constitutional and statutory mandated process -- would the
Judges even obey it or just take another appeal to exhaust time?
On this point, this Court has repeatedly recognized that a declaratory judgment “is not an
appropriate basis to deny a writ to which the relator is otherwise entitled.” State ex rel.
Huntington Ins. Agency v. Duryee, 73 Ohio St.3d 530, 537, 1995-Ohio-337, 653 N.E. 2d 349
(1995) (collecting authority). Where no declaratory action is already pending, a merely available
action to declare rights is not an adequate remedy.
9
Id.
9
Nor does the combination of a declaratory judgment action with an injunction qualify as an
adequate remedy since an injunction is itself considered an extraordinary remedy. Huntington
Ins. Agency, 73 Ohio St.3d at 537, citing State ex rel. Zupancic v. Limbach, 58 Ohio St.3d 130,
133, 568 N.E. 2d 1206 (1991) (remaining citations omitted).
27
At the pleadings stage, Ms. Andrews has sufficiently alleged all of the elements entitling
her to a writ of mandamus. Dismissal is inappropriate.
D. The Complaint States A Valid Claim For A Writ Of Quo Warranto
The Judges further challenge Ms. Andrews petition for a writ of quo warranto. As the
Judges acknowledge, this writ issues when the relator establishes that another person has
unlawfully usurped the relator’s public office. See R.C. 2733.06; Zeigler v. Zumbar, 129 Ohio
St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 23.
The Judges’ argument to dismiss the claim for a writ of quo warranto appears entirely
based upon mischaracterizing Ms. Andrews’ allegations. After acknowledging that Ms. Andrews
alleged that the Judges removed her from her elected office in violation of the removal
procedures and due process of law (Motion to Dismiss at p. 47), the Judges ignore these
allegations, claiming that “she has only alleged the Judges imposed requirements pertaining to
how she performs her legal division duties – which they are expressly and unequivocally
authorized to do.” Id. at p. 48. This is far from a fair characterization. As alleged in the Amended
Complaint and stated in the plain text of the March Journal Entry and May 4 Order, which orders
the Judges do not want this Court to actually read, the Judges ordered Ms. Andrews not to be
present in the Courthouse except one day a month under armed guard, stripped her of her right to
supervise her staff, and reassigned her oversight of the day-to-day operations of the court. May 4
Order at ¶¶ 100, 111, and 107. Any reasonable person subject to these directives would
understand that they had been effectively removed from their elected position.
Moreover, as alleged in the Complaint, it is the Judges themselves who have usurped Ms.
Andrews’ position, including the supervision of her staff. Amended Complaint at ¶ 80.
Accordingly, Ms. Andrews states a valid claim for a writ of quo warranto and the Motion to
Dismiss should be denied.
28
IV. CONCLUSION
This case involves an unprecedented and unauthorized abuse of judicial authority by
common pleas court judges to control the Clerk of the Court . The scope and breadth of the
orders both threatened and issued has no readily ascertainable equivalent. Hamstrung in the
performance of her duties and threatened with contempt for even revealing the existence of the
administrative proceedings, Ms. Andrews brought this action seeking judicial review.
The Judges respond not by welcoming the inquiry as to the lawfulness of their orders on
the merits as would be appropriate under the Rules of Judicial Conduct and the universal goal of
promoting confidence in the judiciary, but instead by making hypertechnical and unfounded
arguments that the action should be dismissed.
The Judges’ positions are internally inconsistent and incompatible with the traditional
notions of due process under Ohio law. The Judges’ positions, if correct, would be that they can
receive allegations of wrongdoing or misuse of the Clerk’s office and enforce administrative
orders relating to those factual allegations without referring it to an appropriate investigative
body, or even providing due process or an opportunity to be heard. In response to the First
Amended Complaint, seeking issuance of writs of prohibition, mandamus, and quo warranto to
resolve the novel issues, the Judges simultaneously argue that it must be dismissed because: (1)
there was a final appealable order despite there being no case brought against Ms. Andrews; (2)
that there could be a final appealable order if she receives a criminal contempt order for failing to
comply with their orders; and (3) that an action for declaratory relief brought required to be
brought in the court that issued the challenged orders is the appropriate vehicle to challenge the
legality.
It is clear that the Judges do not want an effective review of their actions – they directly
state as much in the Motion. This is completely contrary to Article I, Section 16 of the Ohio
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Constitution, which provides that “all courts shall be open, and every person…shall have remedy
by due course of law, and shall have justice administered without denial or delay.”
At this stage of the proceeding, Ms. Andrews has sufficiently alleged the entitlement to
each of the requested writs. The Motion to Dismiss should be denied.
Respectfully submitted,
/s/ L. Bradfield Hughes
L. Bradfield Hughes (No. 0070997)
PORTER WRIGHT MORRIS & ARTHUR LLP
41 South High Street
Columbus, Ohio 43215-6194
(614) 227-2053 (Tel.)
(614) 227-2100 (Fax)
Edmund W. Searby (No. 0067455)
(COUNSEL OF RECORD)
Kevin J. Kelley (No. 0077707)
PORTER WRIGHT MORRIS & ARTHUR LLP
950 Main Avenue, Suite 500
Cleveland, OH 44113-7201
(440) 443-9000 (Tel.)
(440) 443-9011 (Fax)
Counsel for Relator Faith Andrews, Clerk
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21003400v4
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the following counsel for the Respondents named in
Relator’s original Complaint were served with the foregoing via electronic mail on June 24,
2022:
Linda L. Woeber
MONTGOMERY JONSON LLP
Kimberly V. Riley
Counsel for Respondents
/s/ L. Bradfield Hughes
L. Bradfield Hughes
