Summary
In Hughes v. Scaffide, supra, this court reversed a so-called forum non conveniens dismissal of a petition for writ of habeas corpus originally filed in the court of appeals.
Summary of this case from Chambers v. Merrell-Dow Pharmaceuticals, Inc.Opinion
No. 77-592
Decided February 15, 1978.
Habeas corpus — Appellate court must exercise jurisdiction, when — Forum non conveniens not applicable.
Where a petition is filed which states a proper cause of action for a writ of habeas corpus, and there is no plain and adequate remedy in the ordinary course of the law, Sections 2 and 3, respectively, of Article IV of the Ohio Constitution require the Supreme Court and the Court of Appeals to exercise their original jurisdiction in habeas corpus; and in such a case, these courts cannot refuse to exercise that original jurisdiction under the doctrine of forum non conveniens. ( State, ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, applied.)
APPEAL from the Court of Appeals for Licking County.
Appellants, David Paul Hughes and Linda L. Hughes, on February 1, 1977, filed a petition for writ of habeas corpus in the Court of Appeals alleging that their child, age 9, was unlawfully restrained of her liberty by appellees, Eloise Phyllis Scaffide and Joseph Scaffide. The Court of Appeals issued the writ and set the case for hearing, requiring appellees to show cause for the taking and detention of the child. All parties and the child resided in Licking County.
Appellees filed an answer and counterclaim praying for permanent custody of the child and an order requiring appellants to pay child support. The counterclaim stated that appellees were the child's maternal grandparents; that the child had been placed voluntarily with them by the mother; that the child resided with appellees since birth; and that the appellants never supported the child.
The hearing in the Court of Appeals was limited to oral arguments and an interrogation of counsel by the court. The court, without conducting a hearing on the merits, denied the petition for a writ of habeas corpus under the doctrine of forum non conveniens. Although witnesses were available, the court declined to hear evidence, receive exhibits or permit a proffer of testimony by appellants.
Counsel for the appellants stated to the Court of Appeals that the appellants were divorced in 1972 and that the Court of Common Pleas awarded custody of the child to Linda L. Hughes. Counsel stated further that the appellants subsequently remarried. The divorce decree is not contained in this record.
Since the Court of Appeals did not pass on the issue, we do not decide whether the Court of Common Pleas retained continuing jurisdiction over the child's custody after remarriage of the parties.
During oral arguments the Court of Appeals indicated to the appellants that it would have been more appropriate for them to have brought their action in Juvenile Court under R.C. 2151.23, which provides in pertinent part: "(A) The juvenile court has exclusive original jurisdiction under the Revised Code: * * * (2) To determine the custody of any child not a ward of another court of this state; (3) To hear and determine any application for a writ of habeas corpus involving the custody of a child."
The grant of original jurisdiction, by R.C. 2151.23(A)(3), to Juvenile Courts in habeas corpus actions involving the custody of minors is exclusive only as between Juvenile Courts and those courts given general habeas corpus jurisdiction by R.C. 2725.02. The General Assembly is without power to limit or alter the original jurisdiction of Courts of Appeals in habeas corpus actions. In re Black (1973), 36 Ohio St.2d 124.
In pertinent part, the journal entry of the Court of Appeals states:
"It was conceded in open court that the nine year old child whose custody is sought is now in the physical custody of the maternal grandparents, the respondents in this case, and has been in their physical custody continuously all her life, without prior legal objection by court proceedings.
"Because of these facts this Court elects not to entertain jurisdiction in this matter.
"Forum non conveniens.
"Writ denied."
The cause is now before this court as a matter of right.
Mr. Kenneth B. Schumaker, for appellants.
Mr. R. Stewart Beck, for appellees.
The issue to be decided in this appeal is whether the Court of Appeals, under the doctrine of forum non conveniens, can decline to exercise its original jurisdiction to hear a petition which states a proper cause of action in habeas corpus.
The doctrine of forum non conveniens permits a court to dismiss or transfer a case, despite the fact that venue is proper and it has jurisdiction, because there is a more appropriate forum in which the action may be heard. The doctrine permits a court to dismiss or transfer a case if it serves the administration of justice and the convenience of the parties, witnesses and the court. Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501; Annotation 10 A.L.R. Fed. 352.
This doctrine originated at common law and was first developed in state courts. Gulf Oil Corp. v. Gilbert, supra, at page 505, fn. 4. The federal courts adopted the common law doctrine which subsequently was expanded and codified by Congress. Section 1404(a), Title 28, U.S. Code.
This section provides:
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."
The common law doctrine as first applied in the federal system required courts to dismiss, rather than to transfer, an action. It was designed primarily to protect a defendant from harassment and unnecessary expense and difficulty created by the plaintiff's choice of an inconvenient forum. Gulf Oil Corp. v. Gilbert, supra, at pages 508-509. Since the federal statute, unlike the common law, enables a court to transfer an action filed therein, a federal court may invoke the doctrine of forum non conveniens upon a lesser showing of inconvenience than was required at the common law. Norwood v. Kirkpatrick (1955), 349 U.S. 29. It has been held that Section 1404(a), Title 28, U.S. Code, is applicable to federal actions in habeas corpus. United States, ex rel. Meadows, v. New York (C.A. 2, 1970), 426 F.2d 1176. Ohio has no civil rule or statute analagous to Section 1404(a).
Even in the federal system, convenience of the court may not be the sole reason for applying the doctrine of forum non conveniens. However, it may be considered as one of the factors under some circumstances. Pfizer, Inc., v. Lord (C.A. 2, 1971), 447 F.2d 122; Fannin v. Jones (C.A. 6, 1956), 229 F.2d 368.
Some states have adopted the doctrine of forum non conveniens. States are free to accept or reject it as a matter of state policy. Missouri, ex rel. Southern Railway Co., v. Mayfield (1950), 340 U.S. 1. The doctrine of forum non conveniens, however, may not be invoked where the Constitution, rules or statutes of this state require a court to exercise its jurisdiction. In Mattone v. Argentina (1931), 123 Ohio St. 393, we held that a Court of Common Pleas did not have discretion to refuse jurisdiction over a transitory tort action between nonresidents where the General Assembly specifically granted the court jurisdiction over an action of that nature.
This court and the Courts of Appeals have original jurisdiction of the extraordinary writs. Sections 2 and 3, Article IV of the Ohio Constitution. Prior to 1913, the Supreme Court had the discretion to decline to exercise its original jurisdiction over extraordinary writs. State, ex rel. Werden, v. Williams (1875), 26 Ohio St. 170; Ex Parte Shean (1874), 25 Ohio St. 440; Ex Parte Shaw (1857), 7 Ohio St. 81. This court reasoned that, absent a showing of special circumstances, lower courts were more appropriate and convenient tribunals in which to determine whether extraordinary writs should issue. This rationale was undercut by the amendment found in Section 2, Article IV of the Ohio Constitution, effective January 1, 1913, providing, in part, that "no law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the supreme court." State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141. See State, ex rel. Toledo, v. Lynch (1913), 87 Ohio St. 444, 446.
Section 2, Article IV, provides in relevant part:
"(B)(1) The supreme court shall have original jurisdiction in the following:
"(a) Quo warranto;
"(b) Mandamus;
"(c) Habeas corpus;
"(d) Prohibition;
"(e) Procedendo;
"* * *
"[B](3) No law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the supreme court."
Section 3, Article IV, provides in relevant part:
"(B)(1) The courts of appeals shall have original jurisdiction in the following:
"(a) Quo warranto;
"(b) Mandamus;
"(c) Habeas corpus;
"(d) Prohibition;
"(e) Procedendo;"
The question in the instant cause involves a habeas corpus action which was filed in the Court of Appeals and is before this court as a matter of right. Although Sections 2(B)( 1) and ( 3), Article IV of the Ohio Constitution, as amended May 7, 1968, are not applicable to the Court of Appeals, the same rules concerning the original jurisdiction of the Supreme Court in habeas corpus apply to the Court of Appeals. (Section 3[B][ 1], Article IV of the Ohio Constitution.) State, ex rel. Pressley, v. Indus. Comm., supra, at page 162, applied.
Where a petition is filed which states a proper cause of action for a writ of habeas corpus, and there is no plain and adequate remedy in the ordinary course of the law, Sections 2 and 3, respectively, of Article IV of the Ohio Constitution require the Supreme Court and the Court of Appeals to exercise their original jurisdiction in habeas corpus. In such a case these courts cannot refuse to exercise that original jurisdiction under the doctrine of forum non conveniens. State, ex rel. Pressley, v. Indus. Comm., supra, applied.
A writ of habeas corpus will ordinarily be denied where there is an adequate remedy in the ordinary course of law. In re Hunt (1976), 46 Ohio St.2d 378.
The judgment of the Court of Appeals is reversed and this cause is remanded to that court for further proceedings.
Judgment reversed.
O'NEILL, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
PARRINO, J., of the Eighth Appellate District, sitting for CELEBREZZE, J.