Opinion
No. 79-1497
Decided December 20, 1979.
Prohibition — To prohibit court from restraining Secretary of State in performance of duties — Writ denied, when.
IN PROHIBITION.
On November 14, 1979, the Board of Elections of Butler County voted two to two on a motion to dismiss Joyce Thall as director of said board. Since there was a tie vote, the matter was submitted to relator, Anthony J. Celebrezze, Jr., Secretary of State, in order to break the tie pursuant to R.C. 3501.11. On November 15, 1979, Thall instituted an action in the Court of Common Pleas of Butler County, respondent herein, alleging a violation of R.C. 121.22 (the "Sunshine law") in the board determination of her dismissal. Thall sought and was granted a temporary restraining order barring the board of elections, the individual board members, and relator "from taking any formal action of any kind which would dismiss the plaintiff [Thall] from her position of Director of the Butler County Board of Elections until this case is decided***" by respondent court.
R.C. 3501.11 provides, in pertinent part:
"In all cases of a tie vote or a disagreement in the board, if no decision can be arrived at, the clerk shall submit the matter in controversy to the secretary of state, who shall summarily decide the question and his decision shall be final."
By letter dated November 16, 1979, relator, purportedly pursuant to the authority vested in him under R.C. 3501.16, dismissed Thall from her position "for willful violations of Title XXXV of the Revised Code, and for other good and sufficient cause***." In a press release of the same date, relator enumerated the reasons for the dismissal.
R.C. 3501.16 provides:
"The secretary of state may summarily remove any member of a board of elections, or the clerk, deputy clerk, or any other employee of the board, for neglect of duty, malfeasance, misfeasance, or nonfeasance in office, for any willful violation of Title XXXV of the Revised Code, or for any other good and sufficient cause. Vacancies in the office of chairman, clerk, or deputy clerk shall be filled in the same manner as original selections are made, from persons belonging to the same political party as that to which the outgoing officer belonged. If such vacancies cannot be so filled, they shall be filled by the secretary of state."
Respondent court, upon motion of Thall, determined, inter alia, that relator had violated the temporary restraining order and was, therefore, in contempt of court and that the dismissal of Thall was null and void.
Relator then brought this original action in prohibition in this court to prohibit the "respondent from exercising any jurisdiction over the Secretary of State with respect to his performance of his discretionary executive duties and from exercising any jurisdiction over the Board with respect to its control over its employees."
Mr. William J. Brown, attorney general, and Mr. Thomas V. Martin, for relator.
Carl Morgenstern Co., L.P.A., Mr. Carl Morgenstern and Mr. Roger S. Gates, for respondent.
The three requirements which must exist to support the issuance of a writ of prohibition are: (1) the court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power, (2) the exercise of such power must be clearly unauthorized by law, and (3) it must appear that the refusal of the writ would result in injury for which there is no adequate remedy in the ordinary course of law. State, ex rel. Bell, v. Blair (1975), 43 Ohio St.2d 95. We must decide if relator, alleging error by respondent court in exercising jurisdiction over him and in issuing a restraining order and contempt citation against him, is entitled to relief in prohibition.
Relator's reliance on State, ex rel. Gilligan, v. Hoddinott (1973), 36 Ohio St.2d 127, is misplaced. That case was limited to preventing interference by a court over the exercise of the discretionary powers of the Governor, the chief executive of the state. Although relator is chief election officer of the state, State, ex rel. Gilligan, cannot be read to grant immunity from court interference in the exercise of his powers. Further, State, ex rel. Gilligan, must be read in the context of its factual setting. In that case, we did not approve extraordinary powers in the Governor. Rather, we recognized the needed discretion under some circumstances in the office of Governor in order to protect state citizens and property. There is no comparable impending harm in the instant case as there was in State, ex rel. Gilligan, to warrant noninterference of relator's actions by respondent court.
"Prohibition is a preventive rather than a corrective remedy and is designed to prevent a tribunal from proceeding in a matter which it is not authorized to hear and determine.***It cannot be used to review the regularity of an act already performed." State, ex rel. Stefanick, v. Municipal Court (1970), 21 Ohio St.2d 102, 104. Thus, prohibition cannot lie here to correct any errors made by respondent court. Respondent has jurisdiction over Thall's suit and determined it proper to restrain relator from further action and to hold him in contempt when relator was found to have violated that restraining order. We express no view in the correctness of respondent court's determinations. Our only concern is the correctness in granting a writ. If there were errors or defects by respondent court, there is a suitable remedy by way of appeal. It is well-settled that prohibition does not function as a substitute for an appeal. State, ex rel. Rhodes, v. Solether (1955), 162 Ohio St. 559.
For the above reasons, we decide that this is not a proper action in which a writ of prohibition should be granted. Therefore, the writ is denied.
We express no view as to whether Thall has a valid claim in her suit now pending in respondent court. Nor do we express a view as to the correctness of relator's dismissal of Thall.
Writ denied.
CELEBREZZE, C.J., HERBERT, W. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.