Suspended judge loses round in state's top court in fight to ax prosecutor in domestic violence case
A suspended Ohio judge can continue with his legal battle to get a special prosecutor appointed to oversee his felony domestic violence case.
But he will have to do so after trial, the state’s top court says.
In a 4-3 decision granting a writ of prohibition, the Ohio Supreme Court on Tuesday held that a state appeals court had no jurisdiction to hear an interlocutory appeal by Cuyahoga Common Pleas Judge Lance Mason.
Even assuming that Mason is correct and the county prosecutor’s office should be disqualified, the judge cannot appeal the denial of his motion before the overall case is decided, the supreme court explained in a Tuesday slip opinion (PDF). “An incorrect ruling on a criminal defendant’s motion to disqualify the prosecutor’s office may be remedied by a new trial if he or she is convicted and successfully appeals from the ruling,” the majority wrote in its per curiam opinion. “Indeed, many criminal appeals include assertions of error regarding a trial court’s failure to disqualify a prosecutor.”
Mason was seeking an appellate ruling reversing a trial judge’s decision not to grant his motion to disqualify the county prosecutor’s office and appoint a special prosecutor. The state’s Eighth District Court of Appeals had stayed proceedings in the domestic violence case while it determined whether it had jurisdiction to decide the appeal before Mason’s case is tried. However, Cuyahoga County Prosecutor Timothy McGinty appealed the stay, arguing that the appeals court had no jurisdiction to issue it. Ohio’s top court agreed, finding that “the Eighth District patently and unambiguously lacks jurisdiction over an appeal from a denial of a motion to disqualify a prosecutor.”
Although not necessarily disagreeing with the majority’s conclusion that the appeals court lacked jurisdiction, three dissenting judges said the supreme court should not have ruled before the Eighth District Court of Appeals had a chance to determine for itself whether or not it had jurisdiction to hear Mason’s interlocutory appeal.
“Should this court provide a shortcut in the appellate process in every instance in which a party asserts a lack of a final, appealable order in an appellate court? The fact that the answer to the question of whether an order denying the appointment of a special prosecutor seems obvious to the majority does not mean that the court of appeals ‘patently and unambiguously’ lacks the jurisdiction to decide the question,” wrote Senior Associate Justice Paul Pfeifer in a dissent joined by two other judges.
“If the appellate court were to decide the issue incorrectly in this case, this court could fix it,” wrote Pfeifer. “That’s what we do. But I dissent from the majority’s decision to prohibit the court of appeals from doing its job.”
A judge from outside the county is presiding over Mason’s prosecution, a story by the Northeast Ohio Media Group notes. Mason was taken off the bench after charges were filed against him, but is still receiving his $121,000-a-year salary while the criminal case is pending.
Related coverage:
ABAJournal.com: “Judge accused of punching, choking and biting his wife is indicted and put on leave”
