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Filed on 04/29/2016 at 10:18 AM in Wayne County, Ohio
9th District Court of Appeals
FILED
9TH DISTRICT
COURT OF APPEALS
,
INTHECOURTOFAPPEALS “5 APR 29 AFL 9 99
NINTH JUDICIAL DISTRICT TIM NEAL
SUMMIT COUNTY, OHIO CLERK OF COURTS
TARA NICOLE MEIER : Case No. 2015 AP-X 000045 a8
Petitioner : Original Action in Habeas Corpus
: and Mandamus
and
STATE ex rel., Tara Meier
Relator
v.
ANTHONY EVERETT WILSON
Respondent
and
LATECIA WILES, et al.
Defendants.
TARA NICOLE MEIER, pro se
725 N. Main St., #421
Mansfield, TX 76063
Petitioner and Relator
: MOTION FOR JUDGMENT ON
: THE PLEADINGS OR, IN THE
: ALTERNATIVE, MOTION FOR
: SUMMARY JUDGMENT ON
: BEHALF OF THE HONORABLE
: JUDGE LATECIA WILES,
: MAGISTRATE MARTIN
: FRANTZ, AND THE COURT OF
: COMMON PLEAS JUVENILE
: DIVISION, WAYNE COUNTY,
: OHIO
: Re: Wayne County Common Pleas
: Juvenile Division No. 10-0168-CCV,
: Inre: T.N.D., a minor child
BRIAN M. SPIESS (0085049)
MONTGOMERY, RENNIE &
JONSON
36 East Seventh Street, Suite 2100
Cincinnati, Ohio 45202
Tel: (513) 241-4722
Fax: (513) 768-9203
Email: bspiess@mrjlaw.comFiled on 04/29/2016 at 10:18 AM in Wayne County, Ohio
KIMBERLY VANOVER RILEY
(0068187)(COUNSEL OF RECORD)
MONTGOMERY, RENNIE &
JONSON
14701 Detroit Avenue, Suite 555
Cleveland, Ohio 44107
Tel: (440) 779-7978
Fax: (513) 768-9205
Email: kriley@mrjlaw.com
Please direct all paper filings to
the Cincinnati office (listed
above).
Counsel for Court RespondentsIN THE COURT OF APPEALS
NINTH JUDICIAL DISTRICT
SUMMIT COUNTY, OHIO
TARA NICOLE MEIER
Petitioner
and
STATE ex rel., Tara Meier
Relator
v.
ANTHONY EVERETT WILSON
Respondent
and
LATECIA WILES, et al.
Defendants.
: Case No. 2015 AP-X 000045
: Original Action in Habeas Corpus
: and Mandamus
: MOTION FOR JUDGMENT ON
: THE PLEADINGS, OR, IN THE
: ALTERNATIVE, MOTION FOR
: SUMMARY JUDGMENT ON
: BEHALF OF THE HONORABLE
: JUDGE LATECIA WILES,
: MAGISTRATE MARTIN
: FRANTZ, AND THE COURT OF
: COMMON PLEAS JUVENILE
: DIVISION, WAYNE COUNTY,
: OHIO
: Re: Wayne County Common Pleas
: Juvenile Division No. 10-0168-CCV,
: Inre: T.N.D., a minor child
Pursuant to Civ.R. 12(C), or, in the alternative, Civ. R. 56,
Respondents (captioned as Defendants) Judge Latecia Wiles, Magistrate
Martin Frantz, and the Court of Common Pleas, Juvenile Division, Wayne
County, Ohio, hereby move this Court to dismiss Relator’s Original Action
as a judgment on the pleadings. In the alternative, Respondents are entitled
to summary judgment as a matter of law pursuant to Rule 56. A
memorandum in support is attached to this motion.Respectfully submitted,
BRIAN M. SPIESS (0085049)
MONTGOMERY, RENNIE & JONSON
36 East Seventh Street, Suite 2100
Cincinnati, Ohio 45202
Tel: (513) 241-4722
Fax: (513) 768-9203
Email: bspiess@mrjlaw.com
KIMBERLY VANOVER RILEY (0068187)
MONTGOMERY, RENNIE & JONSON
14701 Detroit Avenue, Suite 555
Cleveland, Ohio 44107
Tel: (440) 779-7978
Fax: (513) 768-9205
Email: kriley@mrjlaw.com
Counsel for Court RespondentsMEMORANDUM IN SUPPORT
Introduction
Pro se plaintiff Tara Nicole Meier: brings this Original Action in
Habeas Corpus and Mandamus (“Original Action”) against Respondent
Anthony Everett Wilson; and Defendants the Wayne County Common Pleas
Court, Juvenile Division; Judge Latecia Wiles; and Magistrate Martin
Frantz (collectively, “the Court Respondents”). Ms. Meier’s Original Action
attempts to re-litigate issues that have already been decided, and are still in
the process of being decided, in Case Number 10-0168-CCV, a juvenile
custody and shared parenting matter in the Wayne County Juvenile Court
(“underlying dispute”). Judge Wiles and Magistrate Frantz have presided
over the underlying dispute, which remains ongoing at the time of this
briefing.
When reviewing a Civ.R. 12(C) motion for judgment on the pleadings,
this Court must accept all of the allegations in the complaint or original
1 Ms. Meier has also been known by the name Tara Nicole Daugherty;
however, she will be referred to throughout this matter as Ms. Meier since
that is the name she used throughout her action.action as true. Estate of Sherman v. Millhon, 104 Ohio App. 3d 614, 618
(Ohio Ct. App., Franklin County 1995)(applying same standard of review as
a Civ.R. 12(B)(6) motion). In the alternative, if this Court converts this
motion into one for summary judgment, this court must construe all
evidence in Petitioner’s favor. Yet even when accepting Ms. Meier's
allegations as true, or construing all evidence in her favor, her Original
Action still fails to state a claim for extraordinary relief. It is subject to
dismissal for the following reasons: Ms. Meier is not entitled to the
extraordinary relief of habeas corpus and mandamus when an adequate
remedy at law is available to her; Judge Wiles and Magistrate Frantz are
immune from liability from damages or declaratory relief; and the Wayne
County Juvenile Court is not an entity capable of being sued.
Petitioner’s Proposed Relief
In her Original Action, Ms. Meier indicates she is seeking one of three
remedies:
e First, she asks to change her minor child’s custody from the child’s
father in Ohio to Ms. Meier’s custody in Texas. (Original Action, 4 1).¢ Alternatively, she claims she seeks expedited enforcement of a child
custody determination under the Ohio Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA).? Id., J 2.
e Finally, Ms. Meier claims the Court Respondents lacked jurisdiction
in her underlying custody dispute. Id., {| 3. Based upon this alleged
lack of jurisdiction, Ms. Meier brings this action as a relator, seeking a
writ of mandamus to compel the Court Respondents to dismiss or
void orders issued in the underling custody dispute.
Matters Referred to or Incorporated _in_ the Complaint by
Reference
While Rule 12 requires this Court to determine the sufficiency of the
Complaint based upon its allegations, it is also permitted to consider
documents that are referred to or incorporated in the Complaint without
converting this motion for judgment on the pleadings into one for summary
judgment. This includes documents that are referenced in but not attached
2 It is unclear which child custody determination Ms. Meier is referencing,
because there is no child custody determination in existence under the Ohio
UCCJEA that pertains to Ms. Meier’s minor child. She is presumably
seeking to obtain an expedited child custody determination in her favor via
this action.to the pleadings. See State ex rel. Crabtree v. Franklin Cty. Bd. Of Health,
77 Ohio St.3d 247, 249 n. 1, 1997-Ohio-274, 673 N.E.2d 1281; White v.
Roch, 9% Dist. No. 22239, 2005-Ohio-1127; Irvin v. Am. Gen. Fin., Inc.,
2005-Ohio-3523, (5th District); Lisboa v. Lisboa, 2011-Ohio-351,138, (8th
District); NCS Healthcare, Inc. v. Candlewood Partners, LLC., 160 Ohio
App. 3d 421, 427 (8th District 2005); Mann v. Cincinnati Enquirer, 2010-
Ohio-3963, 111, (ast District); Toth v. Select Comfort Corp., 2013 Ohio
Misc. LEXIS 13308 (Franklin County C.P., Apr. 9, 2013).
Ms. Meier references the underlying custody and shared parenting
dispute, and all of the operative pleadings attached to this motion, in the
caption of her Original Action, as well as throughout the extensive
allegations within the body of the Original Action; however, she failed to
attach these frequently referenced documents. Therefore, Court
Respondents have attached certified copies of the docket and court filings
as exhibits, which this Court may review in determining the sufficiency of
Petitioner’s claims without converting this matter into one for summary
judgment. See Demeraski v. Bailey, 2015-Ohio-2162, 35 N.E.3d 913, Case
No. 102304 (8 Dist.) 4 17 (“In ruling on a [Rule 12 motion], the court
properly considers only the complaint and any documents attached to or
incorporated by reference into the complaint.”); Forbes v. Nationwide Mut.
pcre deinen ee eeIns. Co., 2015 Ohio Misc. LEXIS 12987, 10 Dist. App. No. 14-CV-4944,
*13-14 and n. 3 (relying upon an MOU in evaluating a motion to dismiss
that was not attached to the Complaint, but which was referenced within
the complaint, then attached by defendant in its motion to dismiss; the
Court ruled it could therefore rely on this document without converting the
matter into a motion for summary judgment).
Judicially Noticeable Facts
This Court has previously ruled that it could not judicially notice
court proceedings in another case; however, it was permitted to judicially
notice prior proceedings in the immediate case. Clayton v. Walker, 9
Dist. Summit No. 26538, 2013-Ohio-2318, 11. However, it later expanded
its view to permit judicial notice of pleadings in prior cases, solely to
determine what the parties filed—not to examine the truth of the filings’
contents. Savoy v. Kramer, 9% Dist. Summit No. 27418, 2015-Ohio-437,
qu.
However, the Ohio Supreme Court has taken a broader view: It has
permitted courts to judicially notice adjudicative facts within judgments
rendered by other courts, and in other public records, without converting a
Rule 12 motion into a motion for summary judgment. See State ex rel.
Coles v. Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, 877, N.E.2d 968,{20 (internal citations omitted, but holding court may judicially notice
judicial opinions and public records, as well as documents filed in another
court to establish the fact of that litigation and related filings); State ex rel.
Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d
516, 710.
This Court may also consider these documents without converting
this motion into a motion for summary judgment. State ex rel. Neff v.
Corrigan, 75 Ohio St.3d 12, 15-16, 1996 Ohio 231, 661 N.E.2d 170; State ex
rel. Womack v. Marsh, 128 Ohio St. 3d 303, 2011 Ohio 229, at 18, 943
N.E.2d 1010 (“[t]he court of appeals could take judicial notice of the entry
attached to [respondent’s] motion to dismiss in support of her claim that
the entry rendered [relator’s] mandamus claim moot without converting
the motion to a motion for summary judgment”); State ex rel. Kolkowski v.
Bd. of Commrs. of Lake Cty., 11th Dist. No. 2008-L-138, 2009 Ohio 2532,
at 138 (“[aJlthough this court’s ability to take judicial notice is not
unbridled, we may take judicial notice of findings and judgments as
rendered in other Ohio cases”) (citation omitted).
This Court has routinely taken judicial notice in extraordinary writ
matters like this one to verify a court’s past determination. See, e.g., State
ex rel. Ramos v. White, 1997 Ohio App. LEXIS 1580, 1-4 (Ohio Ct. App.,Lorain County Feb. 7, 1997)(judicially noticing indictment; state’s response
to motion for DNA testing; and trial court’s journal entry denying same);
State ex rel. Martin v. Spicer, 1997 Ohio App. LEXIS 1621, 1-2 (Ohio Ct.
App., Summit County Mar. 7, 1997)(judicially noticing journal entry
establishing Relator’s jail time credit in response to original action seeking
writ of mandamus); State ex rel. Mathis v. Janas, 1997 Ohio App. LEXIS
1963, 1-2 (Ohio Ct. App., Lorain County Feb. 12, 1997)(judicially noticing
order denying petition for post-conviction relief, and transcript considered
as part of same); State ex rel. Lykes v. Summit County Court of Common
Pleas, 1997 Ohio App. LEXIS 1824, 1-2 (Ohio Ct. App., Summit County
Mar. 31, 1997)Gudicially noticing trial court journal entry to establish
proper number of days incarcerated). Especially where, as here, Ms. Meier
is asking this Court to issue an order in mandamus or habeas corpus
affecting the very case she wants this Court to review, this Court has the
ability to judicially notice pleadings and certified matters from that case.
In the Alternative, This Court May Review These Pleadings On
Summary Judgment
To the extent this Court disagrees with its ability to review these
certified pleadings as either referenced documents or judicially noticeable
facts, it may convert this motion into one for summary judgment, and the
standard would be the same: Whether it construes all Ms. Meier’s pledallegations as true, along with certified documents referenced within her
motion and/or judicially noticed, or whether it reviews all certified
documents attached to this motion for their truth, construing them in
Ms. Meier’s favor, the same outcome is required: Respondents are entitled
to judgment as a matter of law, and this matter must be dismissed.
Complaint Allegations / Procedural posture in the underlying
dispute
In the underlying dispute, Ms. Meier is the natural mother;
Mr. Wilson is the natural father; and T.N.D. is their minor child (see
certified copy of the Docket in Case Number 10-0168-CCV, attached as
Exhibit 1, and referenced in the Complaint caption).
On February 1, 2010, Mr. Wilson filed a “Complaint to Establish
Parentage; Motion for Custody; Allocation of Parental Rights; and
Reissuance of Birth Certificate” (see certified copy of Complaint, attached
as Exhibit 2, and referenced in Complaint { 2(f)). The Wayne County Child
Support Enforcement Agency issued an “Order Establishment of
Parentage” finding that, pursuant to R.C. 3111.46, Mr. Wilson was the
natural father of T.N.D. (see certified copy of CSEA Administrative Order,
attached as Exhibit 3, and referenced in Complaint {| 79-80 with the
contrary allegation that there was no presumption or finding that Wilson
was the natural father).On October 22, 2010, Judge Raymond Leisy? issued a Judgment
Entry ordering that the child’s name be changed; that Mr. Wilson be listed
as the father of the child; that a new birth certificate be issued; and that
matters of shared parenting and support be made the order of the court
(see certified copy of Judgment Entry, attached as Exhibit 4, and referenced
in Complaint 80). The Shared Parenting Plan was entered between
Mr. Wilson and Ms. Meier on December 2, 2010, and it was filed with the
court on December 16, 2010 (see certified copies of Shared Parenting Plan,
attached as Exhibit 5, and referenced in Complaint { 80; and Judgment
Entry, attached as Exhibit 6, and referenced in Complaint { 80).
This matter sat dormant with no activity whatsoever from January
2011 until 2014 (Exhibit 1, p. 6; docket entries 57 and 58). However, the
matters that began in late 2014, through the present date, comprise the
controversy within this Original Action.
Mr. Wilson filed a Motion for Reallocation of Parental Rights on
November 21, 2014, and a Motion for Temporary Emergency Custody on
December 4, 2014 (see certified copies of Motion for Reallocation, attached
3 Judge Leisy retired from the Wayne County Juvenile Court in 2012; he is
not a party to the Original Action. Only his successor, Judge Latecia Wiles,
and Magistrate Martin Frantz have been named—along with their Court.as Exhibit 7, and referenced in Complaint § 34; and Motion for Temporary
Emergency Custody, attached as Exhibit 8, and referenced in Complaint
134). The Motion alleged Ms. Meier lived in Wayne County, Ohio when
they implemented the shared parenting plan in 2010, but Ms. Meier had
relocated outside of Wayne County without informing him of her address—
which he later learned was in Texas. Id. Mr. Wilson sought temporary
emergency custody, as well as a finding of contempt. Exhibit 8, p. 1; see
additional references to same in Complaint, { 46.
Magistrate Frantz issued an Order granting temporary custody to
Mr. Wilson on December 4, 2014 (see certified copy of Order, attached as
Exhibit 9, and referenced in Complaint { 14). Magistrate Frantz issued
Findings & Decision of Magistrate continuing the emergency orders and
setting the matter for a final hearing (see certified copy of Findings &
Decision, attached as Exhibit 10).
On January 12, 2015, Ms. Meier filed a Motion to Set Aside the
Magistrate’s Decision/Motion for Automatic Stay, as well as an Objection to
the Magistrate’s Decision (see certified copies of Motion and Objection,
attached as Exhibits 11 and 12). On April 21, 2015, Judge Wiles issued a
Judgment Entry overruling objections and setting a hearing on
Mr. Wilson’s motion for reallocation of parental rights and motion for
10contempt (see certified copy of Judgment Entry, attached as Exhibit 13). On
December 2, 2015, Magistrate Frantz issued Findings & Decision of
Magistrate in which he granted Mr. Wilson’s motion for reallocation of
parental rights; he held that Ms. Meier was in contempt; and he denied
Mr. Wilson’s motion for attorney fees (see certified copy of Findings &
Decision, attached as Exhibit 14). See references to these matters
throughout the Complaint.
This Court may judicially notice that following the initiation of this
original action, Ms. Meier has since filed Respondent’s Objections to
Finding and Decision of Magistrate (see certified copy of Respondent’s
March 2, 2016 Objections, attached as Exhibit 15). The 116-page filing
concludes by stating that the court should vacate Case Number 10-0168-
CCV in its entirety. Id. That matter remains pending with the Wayne
County Juvenile Court today, simultaneously with this Court being asked to
issue extraordinary relief in the same matter.
Analysis
I. Ms. Meier’s Original Action must be dismissed because
extraordinary relief may not be used as a substitute for
appeal.
“Extraordinary remedies, i.e., mandamus, prohibition and habeas
corpus, are available only when usual forms of procedure are incapable of
1affording relief. They may not be employed before trial on the merits, as a
substitute for an appeal for the purpose of reviewing mere errors, or
irregularities in the proceedings of a court having proper jurisdiction, or as
a means for testing the constitutionality of a statute ...” State ex rel.
Woodbury v. Spitler, 34 Ohio St. 2d 134, 137 (Ohio 1973).
Here, Ms. Meier is attempting to use extraordinary relief as a
substitute for an appeal in order to seek the immediate return of her minor
child. Because this is an improper use of extraordinary relief, Ms. Meier’s
Original Action must be dismissed. To the extent she wishes to state
challenges to Judge Wiles and Magistrate Frantz’s rulings within the Wayne
County Juvenile Court, her remedy is to appeal those rulings—she cannot
raise collateral attacks through petitions for extraordinary relief, especially
while those matters remain pending.
II. Ms. Meier’s request for a writ of habeas corpus must be
dismissed because she has an adequate remedy at law.
A writ of habeas corpus lies in certain extraordinary circumstances
where there is an unlawful restraint of a person’s liberty and there is no
adequate remedy in the ordinary course of law. State ex rel. Pirman v.
Money, 69 Ohio St. 3d 591, 593, 635 N.E.2d 26, 29 (1994). Habeas corpus
relief is the exception rather than the general rule in child custody actions.
Barnebey v. Zschach, 71 Ohio St. 3d 588, 646 N.E.2d 162 (1995). A writ of
12habeas corpus will ordinarily be denied where there is an adequate remedy
in the ordinary course of the law.
In Pegan v. Crawmer, 76 Ohio St. 3d 97, 99-100 (Ohio 1996), a
mother who had neglected her child sought reinstatement of the original
award that granted her custody of the parties’ minor child through
extraordinary habeas corpus relief. The court found that the domestic
relations court retained continuing jurisdiction over the custody issues. The
court held that the mother had a pending appeal regarding the domestic
relations court's custody award. The court held that the extraordinary relief
of a habeas corpus petition required the mother to show that she had no
adequate remedy at law. The court held that the mother’s pending appeal
showed she had an adequate remedy at law and that habeas corpus relief
was not appropriate. Id.
Likewise, here Ms. Meier has an adequate remedy of law through the
objections she has filed with the magistrate’s decisions and through an
appeal of any final appealable orders of the judge. Because Ms. Meier has
these remedies, she is not entitled to habeas relief.
Ill. Ms. Meier’s request for a writ of mandamus should be
dismissed because she has no clear legal right to relief.
To be entitled to a writ of mandamus, a relator must establish a clear
legal right to the requested relief, a corresponding clear legal duty on thepart of the respondents, and the lack of an adequate remedy in the ordinary
course of the law. State ex rel. ACLU of Ohio v. Cuyahoga County Bd. of
Comm'rs, 128 Ohio St. 3d 256 (Ohio 2011).
“It is firmly established that the writ of mandamus will not issue ***
where the relator has or had available a clear, plain and adequate remedy in
the ordinary course of the law.” State ex rel. Miller v. Lucas County Court
of Common Pleas, 1999 Ohio App. LEXIS 2259, 2-3 (Ohio Ct. App., Lucas
County May 17, 1999).
Here, Ms. Meier seeks a writ of mandamus when she does not have a
clear legal right to relief. Instead, she seeks to overturn both clear decisions
in the underlying case using the extraordinary remedy of mandamus—as
well as to preempt ongoing decisions that are currently pending, but that
have not yet been issued. In doing so, she alleges that the juvenile court
lacked jurisdiction over the underlying dispute. However, her argument
against jurisdiction is not supported.
A juvenile court has exclusive original jurisdiction regarding custody
determinations of a child that is not the ward of another court of this state.
R.C, 2151.23(A). When exercising jurisdiction in custody matters, the
juvenile court shall proceed in accordance with sections 3109.04, 3127.01
through 3127.53, and where applicable, sections 5103.20 to 5103.23 or
145103.23 to 5103.237. Further, the Wayne County Juvenile Court has
properly exercised jurisdiction over this case without objection since
February 2010 (see Exhibit 1).
“The rule which emerges from the myriad of cases is that ‘[a] court
having general jurisdiction of the subject matter of an action has authority
to determine its own jurisdiction on the issue raised, and a party
challenging its jurisdiction has a remedy at law in appeal from an adverse
holding of the court that it has such jurisdiction, and may not maintain a
proceeding in prohibition to prevent the prosecution of such action.” State
ex rel. P.O.B., Inc. v. Hair, 23 Ohio St. 3d 50, 52 (Ohio 1986), citing State,
ex rel. Miller, v.. Court, 151 Ohio St. 397 (1949). By the same token,
Ms. Meier may not use petitions for writs of mandamus or habeas corpus
to challenge the Wayne County Juvenile Court’s jurisdiction.
Further, while a writ of mandamus may require an inferior tribunal to
exercise its judgment, or discharge any of its functions, it cannot control
judicial discretion. O.R.C. 2731.03. That is all that has occurred here—the
Court Respondents have exercised their authority, and done so with proper
jurisdiction. Ms. Meier merely takes issue with their determination. This is
a matter to be challenged, if at all, through an appeal—not an original
action.
15IV. Judge Wiles and Magistrate Frantz are absolutely immune
from liability.
Although Ms. Meier’s Original Action is captioned as a petition for
extraordinary relief, she requests “any further relief as this Court deems
appropriate, including reimbursement of any and all court costs, attorney
fees incurred in the Juvenile Court Proceedings whatsoever,” as well as
travel expenses she has incurred. (Original Action, 1 98). Judge Wiles and
Magistrate Frantz are immune from liability for these damages.
Federal law has long held that judges are immune from claims for
money damages in connection with judicial acts unless there is a clear
absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct.
1099, 55 L.Ed.2d 331 (1978). Ohio courts are in accord with federal law.
See Wilson v. Neu, 12 Ohio St. 3d 102, 103, 465 N.E.2d 854 (1984). In fact,
Ohio recognizes that “[f]ew doctrines were more solidly established at
common law than the immunity of judges from liability for damages for
acts committed within their judicial jurisdiction***.” Newdick v. Sharp, 13
Ohio App.2d 200, 201, 235 N.E.2d 529, 42 Ohio Op.2d 344 (1967).
Judges are absolutely immune from liability for the performance of
any judicial act unless there is an absence of jurisdiction. State ex. rel.
Fischer v. Burkhardt, 66 Ohio St.3d 189, 610 N.E.2d 999 (1993); Kelly v.
Whiting, 17 Ohio St.3d 91, 93, 477 N.E.2d 1123 (1985); Wilson, 12 Ohio
16St.3d at 103-04; Voll v. Steele, 141 Ohio St. 293, 301, 25 Ohio Op. 424, 47
N.E.2d 991 (1943); Dalhover v. Dugan, 54 Ohio App.3d 55, 56, 560 N.E.2d.
824 (1989). Therefore, the absolute judicial immunity of Judge Wiles and
Magistrate Frantz can only be overcome in two situations:
1) If they were acting in the complete absence of all
jurisdiction, or
2) If their challenged actions were non-judicial.
Neither of the above situations exists here.
A. The alleged acts of Judge Wiles and Magistrate Frantz
were within their jurisdiction as Wayne County
Juvenile Court judges.
As long as Judge Wiles and Magistrate were acting with some
jurisdiction, they are immune. They lose immunity only in the clear absence
of all jurisdiction. See Stump, 435 U.S. at 356-357; Stern v. Mascio, 262
F.3d 600, 608 (6th Cir. 2001).
Judge Wiles and Magistrate Frantz have jurisdiction over custody
determinations pursuant to R.C. 2151.23, and therefore had jurisdiction
over the alleged acts challenged in Ms. Meier’s Original Action.
B. The alleged acts of Judge Wiles and Magistrate Frantz
were judicial.
The remaining inquiry, then, is whether the challenged actions of
Judge Wiles and Magistrate Frantz were “judicial acts” and thus protected
17by immunity. A “judicial act” has been defined as a function normally
performed by a judge in a situation where the parties have dealt with the
judge in a judicial capacity. Stump, 435 U.S. 349; King v. Love, 766 F.2d
962 (6th Cir.1985).
Here, Ms. Meier complains of decisions and findings made by Judge
Wiles and Magistrate Frantz while presiding over the underlying dispute.
The issuing of decisions and findings are clearly judicial acts because only a
judge could take such actions. The acts were therefore quintessentially
judicial in nature, and their immunity cannot be challenged on this point.
V. Ms. Meier cannot obtain declaratory relief against Judge
Wiles and Magistrate Frantz because she has no case or
controversy with them.
In the Conclusion of her Original Action, Ms. Meier seeks to have all
of the orders in Case Number 10-0168-CCV vacated. (Original Action, { 95).
To the extent Ms. Meier is seeking declaratory relief, this claim fails as well.
“The essential elements for declaratory relief are (1) a real controversy
exists between the parties, (2) the controversy is justiciable in character,
and (3) speedy relief is necessary to preserve the rights of the parties.” Aust
v. Ohio State Dental Bd., 136 Ohio App. 3d 677, 681, 737 N.E.2d 605
(2000). For purposes of a declaratory judgment action, a “controversy”
only exists when there is a genuine dispute between the parties having
18adverse legal interests. Wagner v. Cleveland, 62 Ohio App. 3d 8, 13, 574
N.E.2d 533 (1988). “A judge is not a party litigant in a proceeding in which
he acts as a judge and a litigant’s disagreement with his decisions or
dissatisfaction with his judicial performance does not give rise to a
justiciable controversy between the complaining litigant and the judge.”
Carter v. Walters, 3rd Dist. No. 11-88-23, 1990 Ohio App. LEXIS 1205
(March 22, 1990). A declaratory judgment action is not the proper
procedure by which to challenge the determination of a judge in his official
capacity. Id.
Because all of Ms. Meier’s complaints against Judge Wiles and
Magistrate Frantz involved decisions they made in their official judicial
capacities, there is not a justiciable controversy. Ms. Meier’s claims fail as a
matter of law.
V. The Wayne County Juvenile Court is not an entity capable of
being sued.
Finally, Ms. Meier includes the Wayne County Juvenile Court among
its respondents; however, Ohio law is clear that its courts are not sui juris—
that is, they cannot sue or be sued as a matter of law. Malone v. Court of
Common Pleas of Cuyahoga County, 45 Ohio St.2d 245, 248, 74 0.0.24
413, 344 N.E.2d 126 (1976); see also State ex rel. Mayer v. Cincinnati, 60
Ohio App. 119, 120, 19 N-E.2d 902 (1938) (a money judgment against a
19court, including costs and attorney’s fees, is void); Mineer v. Fleming
County, 1995 U.S. App. LEXIS 5473 n.1 (6th Cir. 1995) (a court, like all
collective bodies such as city councils, boards of supervisors, and the like,
are not suable entities; the only proper defendants are the individual actors
or county [or other appropriate political subdivision]). Ebbing v. Butler
County Court of Common Pleas, 2010 U.S. Dist. LEXIS 13233; Burton v.
Hamilton County Juvenile Court, 2005 U.S. Dist. LEXIS 39775.
A court is merely a place in which justice is judicially administered. It
is the exercise of judicial power, by the proper officer or officers, at a time
and place appointed by law. Todd v. United States, 158 U.S. 278, 15 S.Ct.
889, 39 L.Ed. 982 (1895). Therefore, absent express statutory authority, a
court can neither sue nor be sued in its own right. State ex rel. Cleveland
Municipal Court v. Cleveland City Council, 34 Ohio St.2d 120, 121, 63 0.0.
2d 199, 296 N.E.2d 544 (1973) (specifically noting a Municipal Court’s lack
of sui juris status). In Malone, the Ohio Supreme Court unequivocally held,
“absent express statutory authority, a court can neither sue nor be sued.” 45
Ohio St.2d at 248.
Because Ms. Meier cannot point to a statute that has altered the
capacity the Wayne County Juvenile Court (or any court of the State of
20Ohio) to sue or be sued, all claims against it must be dismissed as a matter
of law.
Conclusion
Ms. Meier has a proper forum for challenging the custody decisions,
contempt citations, shared parenting plan, and parentage determination
affecting her child—all within the underlying and pending Juvenile Court
matter. If she is dissatisfied with these determinations, she may appeal
those decisions to this Court. However, for the reasons set forth above, she
may not collaterally challenge those determinations in an original action
seeking extraordinary relief. Therefore, the Court Respondents respectfully
request this Court dismiss Ms. Meier’s Original Action in Habeas Corpus
and Mandamus.
CERTIFICATE OF COMPLIANCE
I certify that this Motion complies with the word-count provision set
forth in Ninth District Local Rule 7(E)(2). This Motion is printed using
Georgia 14-point typeface using Microsoft word processing software, and
contains 4,442 words, beginning with the Memorandum and ending with
the Conclusion. 2.
BRIAN M. SPIESS (0085049)
21CERTIFICATE OF SERVICE
I served a copy of the foregoing by First-Class Mail, postage prepaid,
upon the following on this 27th day of April 2016:
Tara Nicole Meier
752 North Main Street, Apt. 421
Mansfield, Texas 76063
Petitioner
Daniel R. Lutz, Esq.
Nathan R. Shaker, Esq.
Wayne County Prosecutor’s Office
115 West Liberty Street
Wooster, Ohio 44691
Co-Counsel for the Honorable
Judge Latecia Wiles,
Magistrate Martin Frantz, and
the Court of Common Pleas
Juvenile Division, Wayne
County, Ohio
Anthony E. Wilson
439 North Avenue
Tallmadge, Ohio 44278
Respondent
pn
BRIAN M. SPIESS (0685049)
22
Preview
Filed on 04/29/2016 at 10:18 AM in Wayne County, Ohio 9th District Court of Appeals FILED 9TH DISTRICT COURT OF APPEALS , INTHECOURTOFAPPEALS “5 APR 29 AFL 9 99 NINTH JUDICIAL DISTRICT TIM NEAL SUMMIT COUNTY, OHIO CLERK OF COURTS TARA NICOLE MEIER : Case No. 2015 AP-X 000045 a8 Petitioner : Original Action in Habeas Corpus : and Mandamus and STATE ex rel., Tara Meier Relator v. ANTHONY EVERETT WILSON Respondent and LATECIA WILES, et al. Defendants. TARA NICOLE MEIER, pro se 725 N. Main St., #421 Mansfield, TX 76063 Petitioner and Relator : MOTION FOR JUDGMENT ON : THE PLEADINGS OR, IN THE : ALTERNATIVE, MOTION FOR : SUMMARY JUDGMENT ON : BEHALF OF THE HONORABLE : JUDGE LATECIA WILES, : MAGISTRATE MARTIN : FRANTZ, AND THE COURT OF : COMMON PLEAS JUVENILE : DIVISION, WAYNE COUNTY, : OHIO : Re: Wayne County Common Pleas : Juvenile Division No. 10-0168-CCV, : Inre: T.N.D., a minor child BRIAN M. SPIESS (0085049) MONTGOMERY, RENNIE & JONSON 36 East Seventh Street, Suite 2100 Cincinnati, Ohio 45202 Tel: (513) 241-4722 Fax: (513) 768-9203 Email: bspiess@mrjlaw.comFiled on 04/29/2016 at 10:18 AM in Wayne County, Ohio KIMBERLY VANOVER RILEY (0068187)(COUNSEL OF RECORD) MONTGOMERY, RENNIE & JONSON 14701 Detroit Avenue, Suite 555 Cleveland, Ohio 44107 Tel: (440) 779-7978 Fax: (513) 768-9205 Email: kriley@mrjlaw.com Please direct all paper filings to the Cincinnati office (listed above). Counsel for Court RespondentsIN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT SUMMIT COUNTY, OHIO TARA NICOLE MEIER Petitioner and STATE ex rel., Tara Meier Relator v. ANTHONY EVERETT WILSON Respondent and LATECIA WILES, et al. Defendants. : Case No. 2015 AP-X 000045 : Original Action in Habeas Corpus : and Mandamus : MOTION FOR JUDGMENT ON : THE PLEADINGS, OR, IN THE : ALTERNATIVE, MOTION FOR : SUMMARY JUDGMENT ON : BEHALF OF THE HONORABLE : JUDGE LATECIA WILES, : MAGISTRATE MARTIN : FRANTZ, AND THE COURT OF : COMMON PLEAS JUVENILE : DIVISION, WAYNE COUNTY, : OHIO : Re: Wayne County Common Pleas : Juvenile Division No. 10-0168-CCV, : Inre: T.N.D., a minor child Pursuant to Civ.R. 12(C), or, in the alternative, Civ. R. 56, Respondents (captioned as Defendants) Judge Latecia Wiles, Magistrate Martin Frantz, and the Court of Common Pleas, Juvenile Division, Wayne County, Ohio, hereby move this Court to dismiss Relator’s Original Action as a judgment on the pleadings. In the alternative, Respondents are entitled to summary judgment as a matter of law pursuant to Rule 56. A memorandum in support is attached to this motion.Respectfully submitted, BRIAN M. SPIESS (0085049) MONTGOMERY, RENNIE & JONSON 36 East Seventh Street, Suite 2100 Cincinnati, Ohio 45202 Tel: (513) 241-4722 Fax: (513) 768-9203 Email: bspiess@mrjlaw.com KIMBERLY VANOVER RILEY (0068187) MONTGOMERY, RENNIE & JONSON 14701 Detroit Avenue, Suite 555 Cleveland, Ohio 44107 Tel: (440) 779-7978 Fax: (513) 768-9205 Email: kriley@mrjlaw.com Counsel for Court RespondentsMEMORANDUM IN SUPPORT Introduction Pro se plaintiff Tara Nicole Meier: brings this Original Action in Habeas Corpus and Mandamus (“Original Action”) against Respondent Anthony Everett Wilson; and Defendants the Wayne County Common Pleas Court, Juvenile Division; Judge Latecia Wiles; and Magistrate Martin Frantz (collectively, “the Court Respondents”). Ms. Meier’s Original Action attempts to re-litigate issues that have already been decided, and are still in the process of being decided, in Case Number 10-0168-CCV, a juvenile custody and shared parenting matter in the Wayne County Juvenile Court (“underlying dispute”). Judge Wiles and Magistrate Frantz have presided over the underlying dispute, which remains ongoing at the time of this briefing. When reviewing a Civ.R. 12(C) motion for judgment on the pleadings, this Court must accept all of the allegations in the complaint or original 1 Ms. Meier has also been known by the name Tara Nicole Daugherty; however, she will be referred to throughout this matter as Ms. Meier since that is the name she used throughout her action.action as true. Estate of Sherman v. Millhon, 104 Ohio App. 3d 614, 618 (Ohio Ct. App., Franklin County 1995)(applying same standard of review as a Civ.R. 12(B)(6) motion). In the alternative, if this Court converts this motion into one for summary judgment, this court must construe all evidence in Petitioner’s favor. Yet even when accepting Ms. Meier's allegations as true, or construing all evidence in her favor, her Original Action still fails to state a claim for extraordinary relief. It is subject to dismissal for the following reasons: Ms. Meier is not entitled to the extraordinary relief of habeas corpus and mandamus when an adequate remedy at law is available to her; Judge Wiles and Magistrate Frantz are immune from liability from damages or declaratory relief; and the Wayne County Juvenile Court is not an entity capable of being sued. Petitioner’s Proposed Relief In her Original Action, Ms. Meier indicates she is seeking one of three remedies: e First, she asks to change her minor child’s custody from the child’s father in Ohio to Ms. Meier’s custody in Texas. (Original Action, 4 1).¢ Alternatively, she claims she seeks expedited enforcement of a child custody determination under the Ohio Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).? Id., J 2. e Finally, Ms. Meier claims the Court Respondents lacked jurisdiction in her underlying custody dispute. Id., {| 3. Based upon this alleged lack of jurisdiction, Ms. Meier brings this action as a relator, seeking a writ of mandamus to compel the Court Respondents to dismiss or void orders issued in the underling custody dispute. Matters Referred to or Incorporated _in_ the Complaint by Reference While Rule 12 requires this Court to determine the sufficiency of the Complaint based upon its allegations, it is also permitted to consider documents that are referred to or incorporated in the Complaint without converting this motion for judgment on the pleadings into one for summary judgment. This includes documents that are referenced in but not attached 2 It is unclear which child custody determination Ms. Meier is referencing, because there is no child custody determination in existence under the Ohio UCCJEA that pertains to Ms. Meier’s minor child. She is presumably seeking to obtain an expedited child custody determination in her favor via this action.to the pleadings. See State ex rel. Crabtree v. Franklin Cty. Bd. Of Health, 77 Ohio St.3d 247, 249 n. 1, 1997-Ohio-274, 673 N.E.2d 1281; White v. Roch, 9% Dist. No. 22239, 2005-Ohio-1127; Irvin v. Am. Gen. Fin., Inc., 2005-Ohio-3523, (5th District); Lisboa v. Lisboa, 2011-Ohio-351,138, (8th District); NCS Healthcare, Inc. v. Candlewood Partners, LLC., 160 Ohio App. 3d 421, 427 (8th District 2005); Mann v. Cincinnati Enquirer, 2010- Ohio-3963, 111, (ast District); Toth v. Select Comfort Corp., 2013 Ohio Misc. LEXIS 13308 (Franklin County C.P., Apr. 9, 2013). Ms. Meier references the underlying custody and shared parenting dispute, and all of the operative pleadings attached to this motion, in the caption of her Original Action, as well as throughout the extensive allegations within the body of the Original Action; however, she failed to attach these frequently referenced documents. Therefore, Court Respondents have attached certified copies of the docket and court filings as exhibits, which this Court may review in determining the sufficiency of Petitioner’s claims without converting this matter into one for summary judgment. See Demeraski v. Bailey, 2015-Ohio-2162, 35 N.E.3d 913, Case No. 102304 (8 Dist.) 4 17 (“In ruling on a [Rule 12 motion], the court properly considers only the complaint and any documents attached to or incorporated by reference into the complaint.”); Forbes v. Nationwide Mut. pcre deinen ee eeIns. Co., 2015 Ohio Misc. LEXIS 12987, 10 Dist. App. No. 14-CV-4944, *13-14 and n. 3 (relying upon an MOU in evaluating a motion to dismiss that was not attached to the Complaint, but which was referenced within the complaint, then attached by defendant in its motion to dismiss; the Court ruled it could therefore rely on this document without converting the matter into a motion for summary judgment). Judicially Noticeable Facts This Court has previously ruled that it could not judicially notice court proceedings in another case; however, it was permitted to judicially notice prior proceedings in the immediate case. Clayton v. Walker, 9 Dist. Summit No. 26538, 2013-Ohio-2318, 11. However, it later expanded its view to permit judicial notice of pleadings in prior cases, solely to determine what the parties filed—not to examine the truth of the filings’ contents. Savoy v. Kramer, 9% Dist. Summit No. 27418, 2015-Ohio-437, qu. However, the Ohio Supreme Court has taken a broader view: It has permitted courts to judicially notice adjudicative facts within judgments rendered by other courts, and in other public records, without converting a Rule 12 motion into a motion for summary judgment. See State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, 877, N.E.2d 968,{20 (internal citations omitted, but holding court may judicially notice judicial opinions and public records, as well as documents filed in another court to establish the fact of that litigation and related filings); State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, 710. This Court may also consider these documents without converting this motion into a motion for summary judgment. State ex rel. Neff v. Corrigan, 75 Ohio St.3d 12, 15-16, 1996 Ohio 231, 661 N.E.2d 170; State ex rel. Womack v. Marsh, 128 Ohio St. 3d 303, 2011 Ohio 229, at 18, 943 N.E.2d 1010 (“[t]he court of appeals could take judicial notice of the entry attached to [respondent’s] motion to dismiss in support of her claim that the entry rendered [relator’s] mandamus claim moot without converting the motion to a motion for summary judgment”); State ex rel. Kolkowski v. Bd. of Commrs. of Lake Cty., 11th Dist. No. 2008-L-138, 2009 Ohio 2532, at 138 (“[aJlthough this court’s ability to take judicial notice is not unbridled, we may take judicial notice of findings and judgments as rendered in other Ohio cases”) (citation omitted). This Court has routinely taken judicial notice in extraordinary writ matters like this one to verify a court’s past determination. See, e.g., State ex rel. Ramos v. White, 1997 Ohio App. LEXIS 1580, 1-4 (Ohio Ct. App.,Lorain County Feb. 7, 1997)(judicially noticing indictment; state’s response to motion for DNA testing; and trial court’s journal entry denying same); State ex rel. Martin v. Spicer, 1997 Ohio App. LEXIS 1621, 1-2 (Ohio Ct. App., Summit County Mar. 7, 1997)(judicially noticing journal entry establishing Relator’s jail time credit in response to original action seeking writ of mandamus); State ex rel. Mathis v. Janas, 1997 Ohio App. LEXIS 1963, 1-2 (Ohio Ct. App., Lorain County Feb. 12, 1997)(judicially noticing order denying petition for post-conviction relief, and transcript considered as part of same); State ex rel. Lykes v. Summit County Court of Common Pleas, 1997 Ohio App. LEXIS 1824, 1-2 (Ohio Ct. App., Summit County Mar. 31, 1997)Gudicially noticing trial court journal entry to establish proper number of days incarcerated). Especially where, as here, Ms. Meier is asking this Court to issue an order in mandamus or habeas corpus affecting the very case she wants this Court to review, this Court has the ability to judicially notice pleadings and certified matters from that case. In the Alternative, This Court May Review These Pleadings On Summary Judgment To the extent this Court disagrees with its ability to review these certified pleadings as either referenced documents or judicially noticeable facts, it may convert this motion into one for summary judgment, and the standard would be the same: Whether it construes all Ms. Meier’s pledallegations as true, along with certified documents referenced within her motion and/or judicially noticed, or whether it reviews all certified documents attached to this motion for their truth, construing them in Ms. Meier’s favor, the same outcome is required: Respondents are entitled to judgment as a matter of law, and this matter must be dismissed. Complaint Allegations / Procedural posture in the underlying dispute In the underlying dispute, Ms. Meier is the natural mother; Mr. Wilson is the natural father; and T.N.D. is their minor child (see certified copy of the Docket in Case Number 10-0168-CCV, attached as Exhibit 1, and referenced in the Complaint caption). On February 1, 2010, Mr. Wilson filed a “Complaint to Establish Parentage; Motion for Custody; Allocation of Parental Rights; and Reissuance of Birth Certificate” (see certified copy of Complaint, attached as Exhibit 2, and referenced in Complaint { 2(f)). The Wayne County Child Support Enforcement Agency issued an “Order Establishment of Parentage” finding that, pursuant to R.C. 3111.46, Mr. Wilson was the natural father of T.N.D. (see certified copy of CSEA Administrative Order, attached as Exhibit 3, and referenced in Complaint {| 79-80 with the contrary allegation that there was no presumption or finding that Wilson was the natural father).On October 22, 2010, Judge Raymond Leisy? issued a Judgment Entry ordering that the child’s name be changed; that Mr. Wilson be listed as the father of the child; that a new birth certificate be issued; and that matters of shared parenting and support be made the order of the court (see certified copy of Judgment Entry, attached as Exhibit 4, and referenced in Complaint 80). The Shared Parenting Plan was entered between Mr. Wilson and Ms. Meier on December 2, 2010, and it was filed with the court on December 16, 2010 (see certified copies of Shared Parenting Plan, attached as Exhibit 5, and referenced in Complaint { 80; and Judgment Entry, attached as Exhibit 6, and referenced in Complaint { 80). This matter sat dormant with no activity whatsoever from January 2011 until 2014 (Exhibit 1, p. 6; docket entries 57 and 58). However, the matters that began in late 2014, through the present date, comprise the controversy within this Original Action. Mr. Wilson filed a Motion for Reallocation of Parental Rights on November 21, 2014, and a Motion for Temporary Emergency Custody on December 4, 2014 (see certified copies of Motion for Reallocation, attached 3 Judge Leisy retired from the Wayne County Juvenile Court in 2012; he is not a party to the Original Action. Only his successor, Judge Latecia Wiles, and Magistrate Martin Frantz have been named—along with their Court.as Exhibit 7, and referenced in Complaint § 34; and Motion for Temporary Emergency Custody, attached as Exhibit 8, and referenced in Complaint 134). The Motion alleged Ms. Meier lived in Wayne County, Ohio when they implemented the shared parenting plan in 2010, but Ms. Meier had relocated outside of Wayne County without informing him of her address— which he later learned was in Texas. Id. Mr. Wilson sought temporary emergency custody, as well as a finding of contempt. Exhibit 8, p. 1; see additional references to same in Complaint, { 46. Magistrate Frantz issued an Order granting temporary custody to Mr. Wilson on December 4, 2014 (see certified copy of Order, attached as Exhibit 9, and referenced in Complaint { 14). Magistrate Frantz issued Findings & Decision of Magistrate continuing the emergency orders and setting the matter for a final hearing (see certified copy of Findings & Decision, attached as Exhibit 10). On January 12, 2015, Ms. Meier filed a Motion to Set Aside the Magistrate’s Decision/Motion for Automatic Stay, as well as an Objection to the Magistrate’s Decision (see certified copies of Motion and Objection, attached as Exhibits 11 and 12). On April 21, 2015, Judge Wiles issued a Judgment Entry overruling objections and setting a hearing on Mr. Wilson’s motion for reallocation of parental rights and motion for 10contempt (see certified copy of Judgment Entry, attached as Exhibit 13). On December 2, 2015, Magistrate Frantz issued Findings & Decision of Magistrate in which he granted Mr. Wilson’s motion for reallocation of parental rights; he held that Ms. Meier was in contempt; and he denied Mr. Wilson’s motion for attorney fees (see certified copy of Findings & Decision, attached as Exhibit 14). See references to these matters throughout the Complaint. This Court may judicially notice that following the initiation of this original action, Ms. Meier has since filed Respondent’s Objections to Finding and Decision of Magistrate (see certified copy of Respondent’s March 2, 2016 Objections, attached as Exhibit 15). The 116-page filing concludes by stating that the court should vacate Case Number 10-0168- CCV in its entirety. Id. That matter remains pending with the Wayne County Juvenile Court today, simultaneously with this Court being asked to issue extraordinary relief in the same matter. Analysis I. Ms. Meier’s Original Action must be dismissed because extraordinary relief may not be used as a substitute for appeal. “Extraordinary remedies, i.e., mandamus, prohibition and habeas corpus, are available only when usual forms of procedure are incapable of 1affording relief. They may not be employed before trial on the merits, as a substitute for an appeal for the purpose of reviewing mere errors, or irregularities in the proceedings of a court having proper jurisdiction, or as a means for testing the constitutionality of a statute ...” State ex rel. Woodbury v. Spitler, 34 Ohio St. 2d 134, 137 (Ohio 1973). Here, Ms. Meier is attempting to use extraordinary relief as a substitute for an appeal in order to seek the immediate return of her minor child. Because this is an improper use of extraordinary relief, Ms. Meier’s Original Action must be dismissed. To the extent she wishes to state challenges to Judge Wiles and Magistrate Frantz’s rulings within the Wayne County Juvenile Court, her remedy is to appeal those rulings—she cannot raise collateral attacks through petitions for extraordinary relief, especially while those matters remain pending. II. Ms. Meier’s request for a writ of habeas corpus must be dismissed because she has an adequate remedy at law. A writ of habeas corpus lies in certain extraordinary circumstances where there is an unlawful restraint of a person’s liberty and there is no adequate remedy in the ordinary course of law. State ex rel. Pirman v. Money, 69 Ohio St. 3d 591, 593, 635 N.E.2d 26, 29 (1994). Habeas corpus relief is the exception rather than the general rule in child custody actions. Barnebey v. Zschach, 71 Ohio St. 3d 588, 646 N.E.2d 162 (1995). A writ of 12habeas corpus will ordinarily be denied where there is an adequate remedy in the ordinary course of the law. In Pegan v. Crawmer, 76 Ohio St. 3d 97, 99-100 (Ohio 1996), a mother who had neglected her child sought reinstatement of the original award that granted her custody of the parties’ minor child through extraordinary habeas corpus relief. The court found that the domestic relations court retained continuing jurisdiction over the custody issues. The court held that the mother had a pending appeal regarding the domestic relations court's custody award. The court held that the extraordinary relief of a habeas corpus petition required the mother to show that she had no adequate remedy at law. The court held that the mother’s pending appeal showed she had an adequate remedy at law and that habeas corpus relief was not appropriate. Id. Likewise, here Ms. Meier has an adequate remedy of law through the objections she has filed with the magistrate’s decisions and through an appeal of any final appealable orders of the judge. Because Ms. Meier has these remedies, she is not entitled to habeas relief. Ill. Ms. Meier’s request for a writ of mandamus should be dismissed because she has no clear legal right to relief. To be entitled to a writ of mandamus, a relator must establish a clear legal right to the requested relief, a corresponding clear legal duty on thepart of the respondents, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. ACLU of Ohio v. Cuyahoga County Bd. of Comm'rs, 128 Ohio St. 3d 256 (Ohio 2011). “It is firmly established that the writ of mandamus will not issue *** where the relator has or had available a clear, plain and adequate remedy in the ordinary course of the law.” State ex rel. Miller v. Lucas County Court of Common Pleas, 1999 Ohio App. LEXIS 2259, 2-3 (Ohio Ct. App., Lucas County May 17, 1999). Here, Ms. Meier seeks a writ of mandamus when she does not have a clear legal right to relief. Instead, she seeks to overturn both clear decisions in the underlying case using the extraordinary remedy of mandamus—as well as to preempt ongoing decisions that are currently pending, but that have not yet been issued. In doing so, she alleges that the juvenile court lacked jurisdiction over the underlying dispute. However, her argument against jurisdiction is not supported. A juvenile court has exclusive original jurisdiction regarding custody determinations of a child that is not the ward of another court of this state. R.C, 2151.23(A). When exercising jurisdiction in custody matters, the juvenile court shall proceed in accordance with sections 3109.04, 3127.01 through 3127.53, and where applicable, sections 5103.20 to 5103.23 or 145103.23 to 5103.237. Further, the Wayne County Juvenile Court has properly exercised jurisdiction over this case without objection since February 2010 (see Exhibit 1). “The rule which emerges from the myriad of cases is that ‘[a] court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction on the issue raised, and a party challenging its jurisdiction has a remedy at law in appeal from an adverse holding of the court that it has such jurisdiction, and may not maintain a proceeding in prohibition to prevent the prosecution of such action.” State ex rel. P.O.B., Inc. v. Hair, 23 Ohio St. 3d 50, 52 (Ohio 1986), citing State, ex rel. Miller, v.. Court, 151 Ohio St. 397 (1949). By the same token, Ms. Meier may not use petitions for writs of mandamus or habeas corpus to challenge the Wayne County Juvenile Court’s jurisdiction. Further, while a writ of mandamus may require an inferior tribunal to exercise its judgment, or discharge any of its functions, it cannot control judicial discretion. O.R.C. 2731.03. That is all that has occurred here—the Court Respondents have exercised their authority, and done so with proper jurisdiction. Ms. Meier merely takes issue with their determination. This is a matter to be challenged, if at all, through an appeal—not an original action. 15IV. Judge Wiles and Magistrate Frantz are absolutely immune from liability. Although Ms. Meier’s Original Action is captioned as a petition for extraordinary relief, she requests “any further relief as this Court deems appropriate, including reimbursement of any and all court costs, attorney fees incurred in the Juvenile Court Proceedings whatsoever,” as well as travel expenses she has incurred. (Original Action, 1 98). Judge Wiles and Magistrate Frantz are immune from liability for these damages. Federal law has long held that judges are immune from claims for money damages in connection with judicial acts unless there is a clear absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Ohio courts are in accord with federal law. See Wilson v. Neu, 12 Ohio St. 3d 102, 103, 465 N.E.2d 854 (1984). In fact, Ohio recognizes that “[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction***.” Newdick v. Sharp, 13 Ohio App.2d 200, 201, 235 N.E.2d 529, 42 Ohio Op.2d 344 (1967). Judges are absolutely immune from liability for the performance of any judicial act unless there is an absence of jurisdiction. State ex. rel. Fischer v. Burkhardt, 66 Ohio St.3d 189, 610 N.E.2d 999 (1993); Kelly v. Whiting, 17 Ohio St.3d 91, 93, 477 N.E.2d 1123 (1985); Wilson, 12 Ohio 16St.3d at 103-04; Voll v. Steele, 141 Ohio St. 293, 301, 25 Ohio Op. 424, 47 N.E.2d 991 (1943); Dalhover v. Dugan, 54 Ohio App.3d 55, 56, 560 N.E.2d. 824 (1989). Therefore, the absolute judicial immunity of Judge Wiles and Magistrate Frantz can only be overcome in two situations: 1) If they were acting in the complete absence of all jurisdiction, or 2) If their challenged actions were non-judicial. Neither of the above situations exists here. A. The alleged acts of Judge Wiles and Magistrate Frantz were within their jurisdiction as Wayne County Juvenile Court judges. As long as Judge Wiles and Magistrate were acting with some jurisdiction, they are immune. They lose immunity only in the clear absence of all jurisdiction. See Stump, 435 U.S. at 356-357; Stern v. Mascio, 262 F.3d 600, 608 (6th Cir. 2001). Judge Wiles and Magistrate Frantz have jurisdiction over custody determinations pursuant to R.C. 2151.23, and therefore had jurisdiction over the alleged acts challenged in Ms. Meier’s Original Action. B. The alleged acts of Judge Wiles and Magistrate Frantz were judicial. The remaining inquiry, then, is whether the challenged actions of Judge Wiles and Magistrate Frantz were “judicial acts” and thus protected 17by immunity. A “judicial act” has been defined as a function normally performed by a judge in a situation where the parties have dealt with the judge in a judicial capacity. Stump, 435 U.S. 349; King v. Love, 766 F.2d 962 (6th Cir.1985). Here, Ms. Meier complains of decisions and findings made by Judge Wiles and Magistrate Frantz while presiding over the underlying dispute. The issuing of decisions and findings are clearly judicial acts because only a judge could take such actions. The acts were therefore quintessentially judicial in nature, and their immunity cannot be challenged on this point. V. Ms. Meier cannot obtain declaratory relief against Judge Wiles and Magistrate Frantz because she has no case or controversy with them. In the Conclusion of her Original Action, Ms. Meier seeks to have all of the orders in Case Number 10-0168-CCV vacated. (Original Action, { 95). To the extent Ms. Meier is seeking declaratory relief, this claim fails as well. “The essential elements for declaratory relief are (1) a real controversy exists between the parties, (2) the controversy is justiciable in character, and (3) speedy relief is necessary to preserve the rights of the parties.” Aust v. Ohio State Dental Bd., 136 Ohio App. 3d 677, 681, 737 N.E.2d 605 (2000). For purposes of a declaratory judgment action, a “controversy” only exists when there is a genuine dispute between the parties having 18adverse legal interests. Wagner v. Cleveland, 62 Ohio App. 3d 8, 13, 574 N.E.2d 533 (1988). “A judge is not a party litigant in a proceeding in which he acts as a judge and a litigant’s disagreement with his decisions or dissatisfaction with his judicial performance does not give rise to a justiciable controversy between the complaining litigant and the judge.” Carter v. Walters, 3rd Dist. No. 11-88-23, 1990 Ohio App. LEXIS 1205 (March 22, 1990). A declaratory judgment action is not the proper procedure by which to challenge the determination of a judge in his official capacity. Id. Because all of Ms. Meier’s complaints against Judge Wiles and Magistrate Frantz involved decisions they made in their official judicial capacities, there is not a justiciable controversy. Ms. Meier’s claims fail as a matter of law. V. The Wayne County Juvenile Court is not an entity capable of being sued. Finally, Ms. Meier includes the Wayne County Juvenile Court among its respondents; however, Ohio law is clear that its courts are not sui juris— that is, they cannot sue or be sued as a matter of law. Malone v. Court of Common Pleas of Cuyahoga County, 45 Ohio St.2d 245, 248, 74 0.0.24 413, 344 N.E.2d 126 (1976); see also State ex rel. Mayer v. Cincinnati, 60 Ohio App. 119, 120, 19 N-E.2d 902 (1938) (a money judgment against a 19court, including costs and attorney’s fees, is void); Mineer v. Fleming County, 1995 U.S. App. LEXIS 5473 n.1 (6th Cir. 1995) (a court, like all collective bodies such as city councils, boards of supervisors, and the like, are not suable entities; the only proper defendants are the individual actors or county [or other appropriate political subdivision]). Ebbing v. Butler County Court of Common Pleas, 2010 U.S. Dist. LEXIS 13233; Burton v. Hamilton County Juvenile Court, 2005 U.S. Dist. LEXIS 39775. A court is merely a place in which justice is judicially administered. It is the exercise of judicial power, by the proper officer or officers, at a time and place appointed by law. Todd v. United States, 158 U.S. 278, 15 S.Ct. 889, 39 L.Ed. 982 (1895). Therefore, absent express statutory authority, a court can neither sue nor be sued in its own right. State ex rel. Cleveland Municipal Court v. Cleveland City Council, 34 Ohio St.2d 120, 121, 63 0.0. 2d 199, 296 N.E.2d 544 (1973) (specifically noting a Municipal Court’s lack of sui juris status). In Malone, the Ohio Supreme Court unequivocally held, “absent express statutory authority, a court can neither sue nor be sued.” 45 Ohio St.2d at 248. Because Ms. Meier cannot point to a statute that has altered the capacity the Wayne County Juvenile Court (or any court of the State of 20Ohio) to sue or be sued, all claims against it must be dismissed as a matter of law. Conclusion Ms. Meier has a proper forum for challenging the custody decisions, contempt citations, shared parenting plan, and parentage determination affecting her child—all within the underlying and pending Juvenile Court matter. If she is dissatisfied with these determinations, she may appeal those decisions to this Court. However, for the reasons set forth above, she may not collaterally challenge those determinations in an original action seeking extraordinary relief. Therefore, the Court Respondents respectfully request this Court dismiss Ms. Meier’s Original Action in Habeas Corpus and Mandamus. CERTIFICATE OF COMPLIANCE I certify that this Motion complies with the word-count provision set forth in Ninth District Local Rule 7(E)(2). This Motion is printed using Georgia 14-point typeface using Microsoft word processing software, and contains 4,442 words, beginning with the Memorandum and ending with the Conclusion. 2. BRIAN M. SPIESS (0085049) 21CERTIFICATE OF SERVICE I served a copy of the foregoing by First-Class Mail, postage prepaid, upon the following on this 27th day of April 2016: Tara Nicole Meier 752 North Main Street, Apt. 421 Mansfield, Texas 76063 Petitioner Daniel R. Lutz, Esq. Nathan R. Shaker, Esq. Wayne County Prosecutor’s Office 115 West Liberty Street Wooster, Ohio 44691 Co-Counsel for the Honorable Judge Latecia Wiles, Magistrate Martin Frantz, and the Court of Common Pleas Juvenile Division, Wayne County, Ohio Anthony E. Wilson 439 North Avenue Tallmadge, Ohio 44278 Respondent pn BRIAN M. SPIESS (0685049) 22