INTHE COURT OF COMMON PLEAS BROWN COUNTY, OHIO TINA MERANDA Plaintiff, v. HON. SCOTT T. GUSWEILER Defendant. CV20100317 Judge Nurre DEFENDANT THE HONORABLE SCOTT T. GUSWEILER’S MOTION TO DISMISS AND MEMORANDUM IN SUPPORT THEREOF Comes now defendant, the Honorable Judge Scott T. Gusweiler, by and through counsel, pursuant to Rule 12(B)(6) of the Ohio Rules of Civil Procedure, and respectfully requests this Court dismiss plaintiff's claims against him, with prejudice. A memorandum in support is attached. Respectfully submitted, Abie GEORGE D. JON: (0027124) LISA M. ZARING (0080659) MONTGOMERY, RENNIE & JONSON Coupsel for Defendant, the Honorable Judge Scott T. Gusweiler 36 East Seventh Street, Suite 2100 Cincinnati, Ohio 45202 Tel: (513) 241-4722 Fax: (513) 241-8775 Izaring@mrjlaw.comeS O MEMORANDUM IN SUPPORT E Allegations Plaintiff, Tina Meranda, the Brown County Clerk of Court, has filed this case against defendant, the Honorable Judge Scott T. Gusweiler of the Brown County Court of Common Pleas, complaining that the two have had conflicts since Judge Gusweiler took office. In her complaint, Meranda sets out a number of occasions in which the judge has done something she disproves of, including: instructing her staff not to accept filings that contained the name of his predecessor (Complaint, 1 9); directing Meranda and her staff to use the Treasurer’s mail meter, as opposed to stamps, when the clerk's mail meter became unusable (Id. at { 10); ordering a new phone system (Id. at 11-12); and ordering a high profile Court of Appeals case out of her office (Id. at 115.). In sum, she alleges the judge has “exhibited a pattern and practice of abusive, overbearing, and inappropriate behavior® * *.” Id. at 18. Although Meranda asserts the issues between the two have been ongoing, her current claims against Judge Gusweiler primarily stem from one incident. In February 2010, Meranda changed the locks on the clerk of court's office. Id. at 1.17. Judge Gusweiler asked for a copy of the keys. Id. at 118. Meranda called the prosecutor, who informed her that she should not turn over the keys without a written court order. Id. at 4118. When she and the prosecutor arrived at the courthouse, Judge Gusweiler provided her with an order and, according to Meranda, advised her that noncompliance with the + In considering this Civ.R.12(B)(6) motion, this Court must accept as true all of the allegations of the complaint. Perrysburg Twp. v. Rossford, 103 Ohio St.34 79, 2004 Ohio 4362, 15. However, even assuming, arguendo, that all of the allegations in Meranda’s complaint are true, Meranda's claims against Judge Gusweiler still fail to state a claim because she is absolutely immune from suit.© ; O order would result in a finding of contempt. Id. at $19. Meranda alleges she gave the judge the keys out of fear of him and his demeanor. Id. at 420. Based on their exchange, Meranda is suing Judge Gusweiler for violating Ohio's bribery and intimidation statute, R.C. 2921.03. Id. at 1 21-23. She claims Judge Gusweiler: Knowingly and by force, and by unlawful threat of harm to person or property, or by filing, recording, or otherwise using a materially false or fraudulent writing with malicious purpose, in bad faith, or in wanton or reckless manner, attempt{ed] to influence, intimidate, or hinder a public servant in the discharge of the person's duty. Id. at $22, citing R.C. 2921.03. Meranda asks this Court to hold the judge civilly liable for violating the above statute. Id. at 123. She further seeks an order from this Court enjoining Judge Gusweiler from exceeding his duties as a common pleas court judge and interfering with the performance of her duties as the clerk of court. Id. at $26. And she demands this Court issue declaratory relief stating that, outside the scope of his power as common pleas court judge, Judge Gusweiler is not permitted to interfere with Meranda in the performance of her duties. Id. at 131. For the following reasons, Meranda’s claims against Judge Gusweiler fail as a matter of law, and dismissal is appropriate. Analysis I, Judge Gusweiler is absolutely immune from monetary damages. Meranda is seeking compensatory damages against Judge Gusweiler for actions he took in his capacity as a judge. Specifically, she alleges the judge threatened her with contempt in an effort to intimidate or hinder her in-the discharge of her duties as a clerk. (Complaint, 22.) Such claims are barred by the doctrine of judicial immunity and must be dismissed.O : O 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 (1978), 435 U.S. 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d 331. Ohio courts are in accord with federal law. See Wilson v. Neu (1984), 12 Ohio St.3d 102, 103, 465 N.E.2d 854. In fact, Ohio recognizes that “[flew 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 (2967), 13 Ohio App.2d 200, 201, 42 0.0.2 344, 235 N.E.2d 529. 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 (1993), 66 Ohio St.3d 189, 610 N.E.2d 999; Kelly v. Whiting (1985), 17 Ohio St.3d 91, 93, 477 N.E.2d 1123; Wilson, 12 Ohio St.gd at 103-04; Voll v. Steele (1943), 141 Ohio St. 293, 301, 25 Ohio Op. 424, 47 N.E.2d 991; Dalhover v. Dugan (1989), 54 Ohio App.3d 55, 56, 560 N.E.2d 824. Therefore, Judge Gusweiler’s judicial immunity can only be overcome in two situations: 1) If he was acting in the complete absence of all jurisdiction, or 2) Ifhis challenged actions were non-judicial. Neither of the above situations exists here. A. As a common pleas court judge, Judge Gusweiler has jurisdiction to order compliance with a court order or be held in contempt. The Ohio Supreme Court has recognized that a common pleas court has both inherent and statutory power to punish contempts. Burt v. Dodge (1992), 65 Ohio St. 3d 34, 35, 599 N.E.2d 693 (Ohio 1992), citing Zakany v. Zakany (1984), 9 Ohio St.3d 192, 9 OBR 505, 459 N.E.2d 870, syllabus. Certain powers, including the power toO : O punish the disobedience of a court’s order with contempt proceedings, are necessary for the orderly and efficient exercise of justice and are inherent in a court. Zakany, 9 Ohio St.3d 193-194, citing State, ex rel. Dow Chemical Co., v. Court (1982), 2 Ohio St.3d 119; Hale v. State (1896), 55 Ohio St. 210, 213; Harris v. Harris (1979), 58 Ohio St.2d 303, 307, 12 0.0.34 291; State, ex rel. Turner, v. Albin (1928), 118 Ohio St. 527. Judge Gusweiler was acting within his inherent authority as a common pleas court judge when he informed Meranda that noncompliance with his previous order would result in a finding of contempt. Moreover, pursuant to R.C. 2705.01? and R.C. 2705.02(A)8, the judge was acting within his jurisdiction when he made this alleged “threat.” In State, ex rel. Edwards v. Murray (1976), 48 Ohio St.2d 303, 358 N.E.2d 577, the Supreme Court discussed a court's power to issue ex parte administrative orders concerning the functioning of the court and to find parties in contempt when they fail to comply with those orders: Zangerle v. Court of Common Pleas (1943), 141 Ohio St. 70, 46 N.E.2d 865, and the cases there cited recognize the power of the court, in matters which concern its ability to function and to carry out its basic purposes, to issue orders ex parte and to enforce compliance. There is nothing novel in the procedure nor is it essentially violative of the rights of those affected, especially where an opportunity to be heard is provided. 2 RC, 2705.01 provides: “A court, or judge at chambers, may summarily punish person guilty of misbehavior in the presence of or so near the court or judge ai obstruct the administration of justice.” RC. 2705.02(A) provides, in pertinent part, “a person guilty of any of the following acts may be punished as for a contempt: (A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer*+*”O : O Judge Gusweiler had jurisdiction for immunity purposes to issue the order and enforce the order, if need be, through a contempt order. His immunity cannot be challenged on this point. B. Judge Gusweiler’s alleged action—threatening Meranda with contempt—was a judicial act. ‘A judge cannot be held civilly liable for any act performed as part of his or her judicial function. Wilson, 12 Ohio St.gd at 103 (citations omitted). When evaluating a judicial immunity question, courts must look at a particular act’s relation to the general function normally performed by a judge, instead of focusing on the act itself. Mireles v. Waco (1991), 502 U.S. 9, 12-13, 112 S.Ct. 286, 116 L-Ed.2d 9, citing Stump, 435 U.S. at 536. As the Supreme Court explained in Mireles, “if only the particular act in question ‘were to be scrutinized, then any mistake of a judge in excess of his authority would become a nonjudicial act, because an improper or erroneous act cannot be said to be normally performed by a judge.” Id. Here, Meranda alleges Judge Gusweiler threatened her with contempt in an effort to intimidate or influence her in the discharge of her duties. The act in question— threatening contempt—is directly related to the general function of a common pleas court judge. Only a judge can hold someone in contempt; threatening to do so is, by deduction, also a judicial act. See In re Caron (2000), Franklin C.P. Nos. 92DR-04-2101 and 99DP-04-427, 110 Ohio Misc. 2d 58, 744 N.E.2d 787, syllabus 36 (“The doctrine of judicial immunity grants absolute immunity from civil suit to judges for their judicial acts, including decisions regarding contempt, based upon the rationale of the overriding public interest in judicial independence.”)O : O Because Judge Gusweiler was acting within his jurisdiction at the time he allegedly threatened Meranda with contempt, and doing so is clearly a judicial act, Meranda cannot defeat his absolute judicial immunity. Thus, Meranda’s R.C. 2921.03 claim fails, and her demand for monetary relief against Judge Gusweiler must be denied. I. Judge Gusweiler is qualifiedly immune from any claims relating to the propriety of his court order. Meranda's claims against Judge Gusweiler center on his threat of contempt, not the issuance of the order directing her to provide him with keys to the clerk’s office. However, even if Meranda's allegations could be construed as a challenge to Judge Gusweiler’s order itself, her claim fails because the judge is qualifiedly immune from suit for making a discretionary decision, in his capacity as Administrative Judge, relating to his access to the clerk's office. A judge performing a discretionary, administrative function is entitled to qualified immunity from suit for civil damages unless his or her actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Forrester v. White, 484 U.S. 219 (1988). For Meranda to overcome Judge Gusweiler's qualified immunity, and hold him liable for making discretionary decisions about access to the clerk's office and the court's files, Meranda would have the burden of establishing Judge Gusweiler deprived Meranda of a clearly defined constitutional right. Baker v. McCollan (1979), 443 U.S. 137, 140. If the law is unclear, immunity should be recognized. Harlow, 457 U.S. at 818. Further, Meranda would be required to prove that a reasonably competent official would not conclude Judge Gusweiler’s conduct was lawful. Malley v. Briggs (1986), 475 U.S. 335, 341; Cagle v. Gilley (C.A.6, 1992), 957© : O F.2d 1347, 1948. If officials of reasonable competence could disagree on this issue, immunity should be recognized. 1d. Meranda alleges Judge Gusweiler issued an order directing her to provide him with keys to the clerk’s office. However, Meranda has failed to allege how Judge Gusweiler’s alleged decision was improper, let alone how it violated “clearly established” statutory or constitutional rights; therefore, Meranda fails to state a substantive claim, and the judge is qualifiedly immune. For a law to be clearly established, the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violated that right.” Anderson v. Creighton (1987), 483 U.S. 635, 640. The Anderson Court emphasized that the unlawfulness must be apparent, in light of preexisting law. Id. If, for example, other office-holders of reasonable competence (in this case, Ohio Common Pleas Court judges) could disagree on the issue, then immunity applies. Malley, 475 U.S. at 341. Or, if the law was simply unclear, then the office holder is entitled to qualified immunity. Harlow, 457 U.S. at 818. A right is not considered “clearly established” unless it has been authoritatively decided by the United States Supreme Court, the Sixth Circuit Court of Appeals, or the highest court of the state in which the alleged constitutional violation occurred. Robinson v. Bibb, (C.A.6, 1988) 840 F.2d 349, 351; Ohio Civil Serv. Employees Ass'n v. Seiter (C.A.6, 1988), 858 F.2d 1171, 1177 (authoritatively means the law must point unmistakably to unconstitutionality of the conduct and be clearly foreshadowed by applicable direct authority). Qualified immunity is unavailable only where “no reasonable official could fail to know he or she was acting improperly.” McCloud v. Testa (C.A.6, 2000), 227 F.3d 424, 431-32 (citing Harlow, 457 U.S. at 818.). In effect, the doctrine protects “all but theO : O plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S. at 341. Meranda carries the burden of demonstrating no reasonable public official could conclude Judge Gusweiler’s alleged conduct—ordering that she provide him with keys to the clerk's office (and access to the court's files)—was lawful and that he is not, therefore, entitled to qualified immunity. Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991). She cannot meet this burden. As the Supreme Court of Ohio has held, “[t]he duties of the clerk of court of common pleas are ministerial and non-judicial.” State ex rel. Glass v. Chapman (1902), 67 Ohio St. 1, 65 N.E. 154, syllabus; see also State ex rel. Dawson v. Roberts (1956), 165 Ohio St. 341, 135 N.E.2d 409. Pursuant to R.C. 2303.26, the common pleas clerk of court is required to perform her duties “* * * under the direction of the court * * *.” Thus, Judge Gusweiler has authority to direct (via court order or rule) Meranda’s conduct as court clerk. This is specifically the case with regard to the court's files. The common pleas court “has general custody of an authority over its own records and files.” Ex parte Thayer (1926), 114 Ohio St. 194, 150 N.E. 735, syll. 11. The authority of the court over its records and files “extends to the files of all cases which have ever been instituted therein, whether dismissed, disposed of, or pending. The power of the court is inherent and takes precedence even of (sic) the statutory power of a clerk over court records and files.” Id. at 201 (citation omitted). Thus, reasonable officials would agree that Judge Gusweiler was not acting improperly when he issued the order directing Meranda to provide him with access to the clerk’s office and court’s files. The judge is therefore entitled to qualified immunity for any claims relating to the court order.O ; O Ill. Meranda fails to state a claim against Judge Gusweiler. Even if the above threshold defenses were not applicable to Meranda’s claims against Judge Gusweiler, her claims still fail as a matter of law and must be dismissed. A. Meranda fails to sufficiently state a claim under R.C. 2921.03. Meranda brings a claim against Judge Gusweiler under Ohio's intimidation statute, R.C. 2921.03. The statute provides, in relevant part: (A) No person, knowingly and by force, by unlawful threat of harm to any person or property, or by filing, recording, or otherwise using a materially false or fraudulent writing with malicious purpose, in bad faith, or in a wanton or reckless manner, shall attempt to influence, intimidate, or hinder a public servant, party official, or witness in the discharge of the person's duty. (© A person who violates this section is liable in a civil action to any person harmed by the violation for injury, death, or loss to person or property incurred as a result of the commission of the offense and for reasonable attorney's fees, court costs, and other expenses incurred as a result of prosecuting the civil action commenced under this division. A civil action under this division is not the exclusive remedy of a person who incurs injury, death, or loss to person or property as a result of a violation of this section. Accordingly, to properly plead a claim, Meranda must allege Judge Gusweiler threatened her, in an unlawful way or through a materially false and fraudulent filing, in an attempt to influence her duties as clerk of court. Further, she must demonstrate she was injured as a result of the commission of the offense. Meranda’s claim fails for a number of reasons: First, as explained above, Judge Gusweiler’s threat of contempt was not unlawful. As a common pleas court judge, Judge Gusweiler is legally permitted to hold someone in contempt for violating a court order. See Section I.A.; see also R.C. 2705.01 and R.C. 2705.02(A). Threatening to enforce his contempt power was not improper or illegal. Further, to the extent Meranda is alleging 10