Opinion
No. 78-694
Decided February 28, 1979.
Municipal Court — Removal of engaged counsel — M.C. Sup. R. 16(C) — Lawful and proper, when.
APPEAL from the Court of Appeals for Cuyahoga County.
This is an appeal from a judgment in an original action in prohibition filed in the Court of Appeals for Cuyahoga County by John H. Rose (defendant) and attorney Stanley E. Tolliver (relator) and his associates. In their complaint, relators seek to prevent respondent Garfield Heights Municipal Court from enforcing its order barring relator and his associates, Messrs. Nimrod, Pittman and Reed, from representing defendant in a criminal action pending in that court.
The record herein shows that defendant's cause was scheduled for trial on four separate occasions (April 4, May 11, June 8, and September 21, 1977), that either relator or defendant was notified of the respective dates and times by respondent, and that on each occasion relator stated that he could not appear and requested a continuance.
With regard to the April 4, 1977, trial date, relator's office called respondent on the morning of the scheduled proceeding and informed the court that relator could not appear due to his scheduled appearances in "Judge Perry Jackson's" courtroom. Defendant's cause was continued until May 11, 1977, with notice to all parties.
On May 10, 1977, relator's secretary notified respondent by letter that relator would be unable to attend the May 11th trial due to "a conflict in Mr. Tolliver's schedule." She stated that relator was to appear before Judge Calandra in the Cleveland Municipal Court and indicated that, "[u]nder the rules of superintendency, the * * * case would take precedence" over respondent's because the defendant in that cause was charged earlier than the instant defendant.
Relator was advised by letter dated May 23, 1977, that defendant's cause was rescheduled for June 8, 1977, that no further continuances would be granted and, if relator for some reason was unable to appear, he should arrange for substitute counsel. On June 2, 1977, respondent's clerk was informed by telephone conversation with a bailiff of the Court of Common Pleas that relator was to be in trial at the bailiff's courtroom as of June 6 and would not be able to attend respondent's proceedings.
On June 8, 1977, with the prosecutor and jury present, defendant's cause was called for trial before respondent court. However, neither relator nor defendant appeared, thereby causing defendant's bond to be forfeited, the jury to be dismissed, and the cause to be rescheduled for trial on September 21, 1977. By entry issued the same day, respondent ruled:
"Whereas, the defendant's Attorney, Stanley E. Tolliver has twice failed to provide a substitute trial attorney herein as ordered by this Court, Stanley E. Tolliver is hereby removed as attorney for record herein, and is ordered to notify Mr. John H. Rose, Jr., accordingly."
Pursuant to discussions between relator and respondent, relator was reinstated as counsel and was notified that the cause was set for trial on September 21, 1977. However, by letter dated September 14, 1977, relator stated that his schedule conflicted with the trial date and that another continuance would be necessary. On September 16, 1977, respondent issued an order stating that prejudice would inure to the parties as a result of further delays and that one of relator's associates, Messrs. Nimrod, Pittman or Reed, should attend as substitute counsel if relator would be unable to appear.
On September 21, 1977, defendant's trial was convened as scheduled, but neither relator nor his associates appeared to go forward with the proceedings. Thereafter, respondent issued a judgment entry, dated September 22, 1977, which removed relator as attorney of record for the cause and barred relator's associates from further representation in the matter. The instant cause was filed in the Court of Appeals on October 14, 1977.
On March 27, 1978, the Court of Appeals issued a writ of prohibition preventing respondent from barring relator's associates from representing the defendant in this matter. No cross-appeal was filed by respondent from that portion of the judgment. The court, however, also held that relator was properly removed as defendant's counsel under M.C. Sup. R. 16(C).
This cause is now before this court upon appeal as a matter of right.
Mr. Alfred E. Nimrod, for appellants Rose and Tolliver.
Mr. James J. McGrath, prosecuting attorney, for appellees.
The essential function of a writ of prohibition is to prevent a tribunal from exceeding its jurisdiction and acting in matters upon which it has no legal authority to act. State, ex rel. Gilligan, v. Hoddinott (1973), 36 Ohio St.2d 127, 304 N.E.2d 382. Paragraph one of the syllabus in State, ex rel. McKee, v. Cooper (1974), 40 Ohio St.2d 65, 320 N.E.2d 286, states:
"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 the refusal of the writ would result in injury for which there is no other adequate remedy in the ordinary course of the law."
It is undisputed that respondent's actions constitute the exercise of judicial power. However, it is relator's contention that the Fourteenth and Sixth Amendments to the Constitution of the United States prohibit the removal of counsel from a cause without the trial court first conducting a hearing to determine if removal is proper. As support for that position, relator cites Chandler v. Fretag (1954), 348 U.S. 3, in which the Supreme Court of the United States held, at page 10:
"`* * * If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.' * * *
"A necessary corollary is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth." (Emphasis sic.)
Relator's argument is without merit. M.C. Sup. R. 16(C) clearly provides that the removal of an "engaged counsel" is lawful and proper in the instance where:
"* * * [a] designated trial attorney has such a number of cases assigned for trial in courts of this state so as to cause undue delay in the disposition of such cases, the administrative judge may require the trial attorney to provide a substitute trial attorney. If the trial attorney fails to provide a substitute trial attorney, the administrative judge shall remove him as counsel in the case. * * *"
The purpose of the Rules of Superintendence (governing common pleas courts) is set forth in Sup. R. 1(A). It also describes the necessity for rules such as M.C. Sup. R. 16(C):
"Delay in both criminal and civil cases in the trial courts of Ohio is presently the most serious problem in the administration of justice in this state. It is to be remembered that the courts are created not for the convenience or benefit of the judges and lawyers, but to serve the litigants and the interests of the public at large. When cases are unnecessarily delayed, the confidence of all people in the judicial system suffers. The confidence of the people in the ability of our systm of government to achieve liberty and justice under law for all is the foundation upon which the American system of government is built. * * *"
It is uncontroverted that in the cause sub judice the defendant's trial was delayed from April 4, 1977, until at least October 19, 1977, as a direct consequence of relator's repeated failure to appear at the scheduled proceedings. Moreover, respondent's entry dated June 8, 1977, contains the undisputed finding that relator failed in two instances to provide substitute counsel in the defendant's cause, even after he was informed that such counsel was required to appear if relator was unable to attend. Unquestionably, relator was removed in conformity with the requirements of M.C. Sup. R. 16(C).
Furthermore, relator was not entitled to a formal hearing upon the question of his removal. The record at bar contains stipulated and admitted evidence that relator was unable to attend defendant's trial due to scheduled appearances in other courts. Respondent had ample evidence before it to conclude that relator's caseload was causing "undue delay" in the defendant's cause and to enter the removal order.
Relator urges further that Chandler v. Fretag, supra, mandates that a defendant must be afforded counsel of his choice. We disagree. In Chandler, the defendant's request for a continuance to enable him to obtain counsel to represent him on habitual criminal accusations was summarily denied and the trial court proceeded to immediately try and convict him. The high court held that a violation of due process occurs where a defendant is "arbitrarily" refused any opportunity to obtain counsel prior to trial. In the instant cause, the defendant was given ample opportunity to employ and consult with counsel of his choosing prior to respondent's removal decree. See United States, ex rel. Carey, v. Rundle (C.A. 3, 1969), 409 F.2d 1210, certiorari denied 397 U.S. 946; and United States v. Dinitz (C.A. 5, 1976), 538 F.2d 1214, certiorari denied 429 U.S. 1104.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.