Summary
In Ocasek this court dealt only with subparts (B) and (C) of Civ.R. 62. No consideration, at least as appears from the reported opinion, was given to Civ.R. 62(A) (the "in its discretion" language) or App.R. 7(A). While this seems strange, there may be a very good reason.
Summary of this case from State ex rel. State Fire Marshal v. CurlOpinion
Nos. 78-604 and 78-605
Decided June 28, 1978.
Prohibition — Writ allowed, when — Appellants entitled to stay, when — Civ. R. 62 — Requirements inapplicable, when.
IN PROHIBITION.
On December 5, 1977, respondent, Judge Paul E. Riley, sitting by assignment in the Court of Common Pleas of Hamilton County, rendered a judgment in Bd. of Education of the City School District of the City of Cincinnati, et al. v. Franklin B. Walter, Supt. of Public Instruction, et al., case No. A7602725 (hereinafter Board v. Walter). Respondent ruled that certain statutes concerning the distribution of "basic state aid" to public schools were unconstitutional and therefore void. Respondent provided that the effect of the order was to be suspended until July 1, 1978, at which time the statutes in question would become inoperative.
That judgment has been appealed and is pending in the Court of Appeals for Hamilton County. Oral argument has not yet been scheduled.
Relator herein, Franklin B. Walter, Superintendent of Public Instruction, is a defendant-appellant in the above cause. Following respondent's entry, on April 21, 1978, defendants-appellants in Board v. Walter filed with the Court of Common Pleas an application for stay pending termination of appellate litigation. On May 1, 1978, plaintiffs in that case filed a motion to extend time and for an evidentiary hearing on the stay application. Respondent granted plaintiffs' motion and scheduled May 26, 1978, as the date for the evidentiary hearing.
Defendants-appellants then filed a motion for reconsideration, on which oral argument was heard on May 16, 1978. Respondent indicated his intention to proceed with the evidentiary hearing as scheduled. At the May 16 hearing, plaintiffs indicated their intention to depose relator Walter and three other non-party witnesses, who are also relators herein (Oliver Ocasek, President Pro Tempore of the Ohio Senate; Vernal G. Riffe, Jr., Speaker of the Ohio House of Representatives; and Richard Sheridan, Ohio Legislative Budget Officer). These depositions were scheduled for May 18, 19, 22 and 23, 1978, and respondent ordered that a convenient place was the office of plaintiffs' counsel in Cincinnati.
Relators filed with this court on May 17, 1978, complaints in prohibition and motions for alternative writs to prevent respondent from holding an evidentiary hearing on defendants-appellants' application for stay pending termination of appellate litigation in Board v. Walter and further to prevent respondent from permitting any proceedings, including depositions of relators, which are ancillary thereto.
On May 17, 1978, this court, by separate entries, allowed the motions for alternative writs and further ordered respondent to show cause on or before June 15, 1978, why a permanent writ of prohibition should not issue.
Mr. William J. Brown, attorney general, Mr. Stephen C. Fitch, Mr. Joseph A. Stancati, Mr. David H. Beaver and Mr. Henry A. Arnett, for relators.
Judge Paul E. Riley, pro se.
The conditions 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 unauthorized by law; and (3) it must appear that refusal of the writ would result in injury for which there is no other adequate remedy. State, ex rel. Lehman, v. Cmich (1970), 23 Ohio St.2d 11.
Defendants-appellants in Board v. Walter filed their application for stay in the Court of Common Pleas pursuant to Civ. R. 62, which provides in part:
"(B) Stay upon appeal. When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce a judgment by giving an adequate supersedeas bond. * * *
"(C) Stay in favor of the government. When an appeal is taken by this state or political subdivision, or administrative agency of either, or by any officer thereof acting in his representative capacity and the operation or enforcement of the judgment is stayed, no bond, obligation or other security shall be required from the appellant."
Pursuant to this rule, defendants-appellants are entitled to a stay of the judgment as a matter of right. The lone requirement of Civ. R. 62(B) is the giving of an adequate supersedeas bond. Civ. R. 62(C) makes this requirement unnecessary in this case, and respondent has no discretion to deny the stay. Therefore, the evidentiary hearing on the stay and the related depositions are inappropriate proceedings.
Accordingly, the writs of prohibition are allowed.
Writs allowed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.