[Cite as Broderick v. Paris , 2018-Ohio-2123.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106987

JOHN M. BRODERICK

RELATOR

vs. JUDGE MICHELLE L. PARIS

RESPONDENT

JUDGMENT: COMPLAINTS DISMISSED

Writs of Prohibition and Mandamus Order No. 516681

RELEASE DATE: May 25, 2018ATTORNEY FOR RELATOR L. Bryan Carr 1392 SOM Center Road Mayfield Heights, Ohio 44124

ATTORNEYS FOR RESPONDENT

Anne Marie Sferra William D. Mason Bricker & Eckler L.L.P. 1001 Lakeside Avenue East, Suite 1350 Cleveland, Ohio 44114

MARY J. BOYLE, J.: {¶1} On March 28, 2018, the relator, John M. Broderick, commenced this prohibition and mandamus action against the respondent, J udge Michelle Paris, to prevent her from enforcing a condition of probation that Broderick may not have weapons in the marital home during probation and to compel her to amend the conditions of probation to allow him to possess firearms in his home. He also seeks an alternative writ to stay the condition of probation while this court reviews his writ action. On Apr il 24, 2018, the respondent judge filed a motion to dismiss. Broderick filed his brief in oppos ition on May 7, 2018. For the following reasons, this court grants the motion to dismiss, and di smisses the applications for writs of prohibition, mandamus, and an alternative writ. {¶2} The complaint and its attachment s show that on December 22, 2017, while Broderick was intoxicated, he argued with his wife over hunting and politics. During this argument, he struck his wife tw ice in the face, knocked her glasse s off, and jumped on her. At this point, their minor son intervened to pull Br oderick off his mother, and their minor daughtercalled the police. When the police arrived they noticed that Broderick appeared to be highly intoxicated and that the wife had visible redness on her face. The police arrested Broderick for domestic violence. At the time of the arrest, the wife handed over approximately 14 firearms

that were in the house. {¶3} On February 28, 2018, Broderick pled guilty to disorderly conduct, and in an order journalized on March 12, 2018, the respondent judg e sentenced him to one-year active probation. One of the conditions of probation is that “Br oderick is to have no weapons in the marital residence during the probation peri od.” (Probation order.) He now brings this writ action to

contest that condition. {¶4} Broderick argues that although the judge has discretion in settin g the conditions of probation, those conditions must be reasonably re lated to the goals of community control — rehabilitating the defendant , administering justice, and ensu ring good behavior — and not be unduly restrictive of the offender’s liberties. State v. Jones, 49 Ohio St.3d 51, 550 N.E.2d 469 (1990); State v. Mahon, 8th Dist. Cuyahoga No. 106043, 2018-Ohio-295; State v. Maynard , 47 Ohio App.3d 76, 547 N.E.2d 409 (6th Dist.1988); State v. Meldrum , 5th Dist. Stark No. 2001CA00289, 2002-Ohio-1859. Broderick continues that the subject condition is unlawful because it bears no relation to those goals and in fringes on his Second Amendment right to keep and bear arms. Moreover, appeal is not an ade quate remedy because an appeal will take almost all of a year, the duration of the probation. {¶5} These arguments are not well founded. The requisites for mandamus are well established: (1) the relator must have a clear legal right to the re quested relief, (2) the respondent must have a clear legal duty to perform the reque sted relief, and (3) ther e must be no adequate remedy at law. Additionally, mandamus may not control judici al discretion, even if thatdiscretion is grossly abused. State ex rel. Ney v. Niehaus , 33 Ohio St.3d 118, 515 N.E.2d 914 (1987). Furthermore, mandamus is not a substitute for appeal. State ex rel. Daggett v.

Gessaman , 34 Ohio St.2d 55, 295 N.E.2d 659 (1973); State ex rel. Pressley v. Indus. Comm. of

Ohio , 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), para graph three of the syllabus. Thus, mandamus does not lie to correct errors and procedural irregularities in the course of a case. State ex rel. Jerninghan v. Gaughan , 8th Dist. Cuyahoga No. 67787, 1994 Ohio App. LEXIS 6227 (Sept. 26, 1994). Moreover, mandamus is an extr aordinary remedy that is to be exercised with caution and only when the right is clear . It should not issue in doubtful cases. State ex rel. Taylor v. Glasser , 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer v. Ohio Turnpike Comm. , 159 Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel. Connole v. Cleveland Bd. of Edn. , 87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist.1993). {¶6} In the present case, the conditions of probation are within the discretion of the

court and are reviewed on an a buse of discretion standard. Mahon, supra, at ¶ 6. Mandamus does not lie for an abuse of discretion, even if the court grossly abuses its discretion. Thus,

mandamus will not issue. {¶7} The principles governing prohibition are well established. Its requisites are (1) the respondent against whom it is sought is about to ex ercise judicial power, (2 ) the exercise of such power is unauthorized by law, and (3) th ere is no adequate remedy at law. State ex rel. Largent

v. Fisher , 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). Pr ohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause that it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe , 138 Ohio St. 417, 35 N.E.2d 571 (1941), paragraph three of the syllabus. “The writ will not issue to prevent an erroneous judgment, or to serve th e purpose of appeal, or to correct mistakes of the lower court indeciding questions within its jurisdiction.” State ex rel. Sparto v. Ju venile Court of Darke Cty., 153 Ohio St. 64, 65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution

and not issue in a doubtful case. State ex rel. Merion v. Tuscar awas Cty. Court of Common

Pleas , 137 Ohio St. 273, 28 N.E.2d 641 (1940); and Reiss v. Columbus Mun. Court , 76 Ohio Law Abs. 141, 145 N.E.2d 447 (10th Dist.1956). Neve rtheless, when a cour t is patently and unambiguously without jurisdiction to act whatsoever , the availability or adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel. Tilford v. Crush , 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988); and State ex rel. Csank v. Jaffe , 107 Ohio App.3d 387, 668 N.E.2d 996 (8th Dist.1995). However, absent such a pa tent and unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction. A party challeng ing the court’s jurisdiction has an adequate remedy at law via an appeal from the court’s holding that it has jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas , 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997). Moreover, this cour t has discretion in issuin g the writ of prohibition. State ex rel. Gilligan v. Hoddinott , 36 Ohio St.2d 127, 304 N.E.2d 382 (1973). {¶8} R.C. 2929.25(A)(1)(a) grants the court the power to “impose any other conditions of release under a community control sanction that the court considers a ppropriate.” Thus, the respondent judge was acting within her statutor ily granted jurisdiction and power when she imposed that condition of probation. Prohibition w ill not lie if the court is acting within its jurisdiction. {¶9} Moreover, delays and inconveniences do not render the appeal an inadequate remedy. State ex rel. Casey Outdoor Advertisi ng, Inc. v. Ohio Dept. of Transp., 61 Ohio St.3d 429, 575 N.E.2d 181 (1991). The court further notes that Broderick has a ppealed his sentencein Solon v. Broderick , 8th Dist. Cuyahoga No. 107043. Furthermore, the cases he relies upon

— Jones, Mahon, Maynard, and Meldrum — were resolved on appeal, not through an extraordinary writ. {¶10} Accordingly, this court grants the motion to dismiss and dismisses the applications for writs of mandamus, prohibition and an alternative writ. Relator to pay costs.

This court directs the clerk of courts to serve a ll parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B). {¶11} Complaints dismissed.

MARY J. BOYLE, JUDGE MARY EILEEN KILBANE, P.J., and SEAN C. GALLAGHER, J., CONCUR