State, Ex Rel. Harris v. Common Pleas Ct , 25 Ohio App. 2d 78 ( 1970 )

I concur in the judgment of dismissal of relator's complaint for a writ of prohibition. The pivotal question urged by relator is this case is that, as a matter of law, the Juvenile Court lacks jurisdiction to enter the proposed order.

Relator urges that the Ross County Common Pleas Court, juvenile division, is a court of limited jurisdiction in the exercise of the jurisdiction conferred under R. C. 2151 and no presumption of jurisdiction is applicable as to a court of general jurisdiction. Support for this argument can be found inState, ex rel. Shonk, v. Crist, 114 Ohio App. 304, and State, exrel. Smilack, v. Bushong, 93 Ohio App. 201.

Respondents claim, in part, authority to commit under R. C.2945.40 which is located in the adult criminal code and provides for commitment in any case where insanity is set up as a defense or in which present insanity is under investigation. I agree with relator that this section provides no jurisdictional basis in this case, for the reason that nowhere in R. C. 2151 is any reference to R. C. 2945.40 set forth and for the additional reason that the purposes of commitment under R. C. 2151.26 are for distinct and different purposes than those under R. C.2945.40.

This court is given jurisdiction in prohibition by Section 3, Article IV of the Ohio Constitution. The writ is not defined in the Constitution nor has it been the subject of legislation and its issuance is controlled by common law principles. State, exrel., v. Vickery, 121 Ohio St. 49.

With respect to the principles summarized in 44 Ohio Jurisprudence 2d, Prohibition, Sections 8 and 9, it is stated that prohibition is a preventive writ, designed to prevent a tribunal from exercising a jurisdiction with which it has not been invested by law, or exceeding its jurisdiction where it possesses limited jurisdiction. The principles controlling its issuance are:

(1) that the court is about to exercise judicial power;

(2) that the exercise of such power is unauthorized by law;

(3) that it will result in injury for which no adequate remedy exists;

(4) that if it is a borderline or doubtful case it should not issue; and

(5) it may not issue as a substitute for appeal, or prevent a court from adjudicating where it is authorized to adjudicate.

In applying these principles it is important to observe to what point the proceeding below has progressed. The proceeding is under R. C. 2151.26 entitled "relinquishment of jurisdiction for purpose of criminal prosecution." A complaint was filed against relator alleging the child to be delinquent by reason of having committed an act which would constitute a felony if committed by an adult — to wit, murder — and it has already been adjudicated that (1) the child was more than fifteen years of age and (2) that there exists probable cause to believe the child committed the act alleged in the complaint. R. C. 2151.26 provides for additional determinations. It states in part:

"(3) After an investigation including a mental and physical examination of such child made by the Ohio Youth Commission, a public or private agency, or a person qualified to make such examination, that there are reasonable grounds to believe that:

"(a) He is not committable to an institution for the mentally retarded or mentally ill;

"(b) He is not amenable to care or rehabilitation in any facility designed for the care, supervision, and rehabilitation of delinquent children;

"(c) The safety of the community requires that he be placed under legal restraint, including, if necessary, for the period extending beyond his majority."

The amendment of R. C. 2151.26 to its present form was a direct response to Kent v. United States, 383 U.S. 541, wherein the waiver of jurisdiction over a juvenile is described as a "critically important" action and such procedure must satisfy the basic requirements of due process and fairness. See the discussion by Judge Walter G. Whitlatch in XLII Ohio Bar No. 43.

Under the facts of this case, it appears a commitment to the Ohio Youth Commission has previously been made but an additional investigation is sought by the Juvenile Court judge to make the required determinations of subsection 3.

The Legislature has utilized the term "a public or private agency." The term is not further defined in the code section nor defined elsewhere in the Revised Code. Certainly, the Legislature intended something by the use of the word "public." Reasonably interpreted, the term "private" is generic in nature and would appear to include agencies operated by private persons for private purposes.

In contra distinction, the use of the word "public," also generic in nature, when viewed in the light of that sought to be accomplished by the "investigation" and the broad grant of authority for that purpose, indicates that the broad and all inclusive meaning was intended and included therein are all agencies of government which would be of assistance to the juvenile court in performing this "critically important" function.

Relator urges, however, that this view is "anomalous" when consideration is given to R. C. 2151.31.2 and 2151.34. I am unable to perceive the merit in this contention. R. C. 2151.31.2 provides that an alleged delinquent may only be detained in certain places but included therein is the provision — "any other suitable place designated by the court." If over the age of fifteen, confinement may be in a jail under certain conditions. R. C. 2151.31.4 provides for a detention hearing if a child is detained.

While relator urges the view that Lima State Hospital is strictly an adult institution, it should be noted that R. C.2151.355 (H) provides that a delinquent child may be committed there if within the purview of R. C. 2947.25. It would, indeed, be an anomaly if the institution could be utilized for such indefinite commitment and its use restricted to the limited observation period here in question.

I conclude that Lima State Hospital is within the term "public agency," the Juvenile Court has jurisdiction to authorize such commitment and the writ of prohibition should be denied.

Finally, I would observe that relator can point to no section of the Code prohibiting the proposed action. If it is not clear that Lima State Hospital is within the term "public agency," it is at least arguably within that term. It is a fundamental concept that the writ of prohibition will issue only with great caution and where the right to it is clear. It should neverissue in borderline or doubtful cases. State, ex rel.Stefanick, v. Municipal Court, 21 Ohio St. 2d 102; State, exrel., v. Richards, 102 Ohio St. 455; State, ex rel., v.Harter, 82 Ohio Law. Abs. 43; State, ex rel., v. Macelwane,116 Ohio App. 183. The right to the writ not being clear, and, at most, this being a doubtful or borderline case, the writ must be denied.