Baxter v. Erie Cty. Common Pleas Court
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[Cite as Baxter v. Erie Cty. Common Pleas Court, 2003-Ohio-67.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY Edward J. Baxter Court of Appeals No. E-02-046 Petitioner v. Erie County Common Pleas Court, John T. Patton, James A. Gutierrez, and William D. Mason DECISION AND JUDGMENT ENTRY Decided: January 10, 2003 Respondents * * * * * Edward J. Baxter, pro se. David G. Lambert, for respondents William D. Mason and James Gutierrez. Gary A. Lickfelt, for respondent John T. Patton. * * * * * KNEPPER, J. {¶1} This matter is before the court on "Petition in the Nature of a Writ of Prohibition." petitioner's On November 12, 2002, this court granted an alternative writ and ordered respondents to file an answer to petitioner's complaint. December Gutierrez 9, 2002, filed a respondents motion to pursuant to Civ.R. 12(B)(6). answer on December 12, 2002. filed a response. William dismiss D. Mason petitioner's and On James complaint Respondent John T. Patton filed his On December 18, 2002, petitioner On December 31, 2002, respondent John T. Patton filed a motion for summary judgment. {¶2} pending Petitioner criminal Edward J. prosecution Baxter in Erie is the defendant County, Ohio. in a Because petitioner's brother, Kevin Baxter, is the Erie County Prosecutor and the alleged victim of some of the criminal acts of which petitioner is accused, Judge Donald L. Ramsey of the Erie County Court of Common Pleas appointed respondent William D. Mason, Cuyahoga County Prosecutor, as special prosecutor to oversee the case in December 2000. Respondent James Gutierrez, Assistant Prosecutor for Cuyahoga County, also was appointed to work on the case. Respondent Judge John T. Patton, a retired judge of the Eighth District Court of Appeals of Ohio, was assigned by the Supreme Court of Ohio in June 2002 to preside in the Erie County Court of Common Pleas, General Division, over the criminal proceedings against petitioner for the days of June 6 and 7, 2002, and thereafter as necessary to conclude any proceedings in which he participated that might be pending at the end of that period. A copy of that assignment is contained in the record. {¶3} of On June 7, 2002, petitioner was indicted on one count extortion, falsification. him were 18 counts of intimidation and 62 counts of Petitioner asserts that the indictments against procured through fraud. Specifically, petitioner asserts that respondents Gutierrez and Mason did not have the required oaths of office on file with the Erie County Clerk of Courts, that Gutierrez did not have on file his appointment to this case fraud. and that Mason's appointment was procured through Petitioner further asserts that respondent Patton "did not have the required oaths of office *** on file," that the Erie County Clerk of Courts did not have on record Judge Patton's appointment to that court, and that respondent Patton "fabricated evidence to validate his unlawful activities." {¶4} Petitioner respondents from now asks engaging in this any court further to acts prohibit or the conduct as agents of the Erie County Prosecutor's Office and the Erie County Court of Common Pleas. {¶5} Respondents Mason and Gutierrez have filed a joint motion to dismiss pursuant to Civ.R. 12(B)(6) and respondent Patton has filed a motion for summary judgment, also asserting that petitioner has failed to state a claim upon which relief can be granted. Upon due consideration, we find respondents' arguments well-taken. {¶6} A writ of prohibition is an extraordinary writ that is not routinely or easily granted. State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas (1996), 74 Ohio St.3d 536. In order to be entitled to a writ of prohibition, a relator must establish that (1) the court or officers against whom it is sought are about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) denial of the writ will cause injury to relator for which no other adequate remedy in the ordinary course of law exists. State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 336. {¶7} As to respondents Gutierrez and Mason, the Supreme Court of Ohio has held that prohibition will not issue against a prosecuting attorney, because a prosecutor is not seeking to exercise judicial or quasi-judicial power. Leis (1980), 62 Ohio St.2d 102. As State ex rel. Gray v. to respondent Patton, petitioner has not identified any judicial power which respondent is about to exercise relative to petitioner's case in the Erie County Court of Common Pleas. {¶8} first of petition Accordingly, as petitioner has failed to satisfy the the for three a steps writ of set forth prohibition in as Barclay, to supra, respondents Gutierrez, William Mason and John T. Patton is denied. James Costs assessed to petitioner. WRIT DENIED. Melvin L. Resnick, J. ____________________________ JUDGE Richard W. Knepper, J. ____________________________ Mark L. Pietrykowski, J. CONCUR. JUDGE ____________________________ JUDGE his
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