Thursday, July 9, 2009

Judge Says He Doesn’t Have Jurisdiction

Knox County Common Pleas Judge Otho Eyster said he only has jurisdiction to compel the attendance of a witness when the person refuses to comply with a subpoena. In the case of Mount Vernon school board members, they were not refusing to comply because they had already “quashed” their own subpoenas, Eyster stated.

In his ruling on Tuesday, Eyster gave no explanation as to the legal reasons for the board being able to dismiss their own subpoenas.
(Click here for copy of ruling.)

For further information, see past articles on this topic:

“School Board ‘quashed’ Subpoenas in the John Freshwater Hearing.” (6-12-09)

"School Board Gives Reason for Not Complying With Subpoenas." (6-18-09)

"Subpoenas in John Freshwater Hearing -- School Board Says Judge Doesn’t Have Jurisdiction" (6-20-09)


UPDATE: 7-11-09

Mount Vernon News reporter Pamela Schehl has written an article—“Judge explains denial in Freshwater case”—that gives further details on the judge’s decision. “First, he explained, to quash a subpoena means it’s as if it never existed,” Schehl wrote.

The judge is credited as saying that his ruling had nothing to do with the appropriateness of the board choosing to quash the subpoenas—it’s a matter of them simply being able to quash. “Since the matter is an administrative hearing, the judge said, the board has the legal authority to issue and quash subpoenas,” Schehl wrote.

UPDATE 7/14/09:

R. Kelly Hamilton, Attorney for John Freshwater, stated that he plans to appeal the decision made by Judge Eyster. Hamilton said that there will probably not be a decision on that appeal until close to the time when the two related federal cases go to trial—the hearing will be on hold until that time. (Source: “John Freshwater interview” 7-10-09 Bob Burney Live Programs.)

UPDATE:

See the following Mount Vernon News article regarding the resolution of this matter before the Ohio Supreme Court: “Ohio supreme court rules in school board’s favor.” 

5 comments:

Anonymous said...

What a joke...Squashing and refusing are the same thing. The result is the same.. Our legal system is a game for lawyers rather than a way to seek justice and get the real story.

Anonymous said...

It is Quashing not Squashing. It is part of the legal system. His side could have quashed subpoenas if they wanted to.

gregjaye said...

MV -

Have the next hearing dates been scheduled?

mountvernon1805 said...

gregjaye said: “Have the next hearing dates been scheduled?”

At present, the next hearing dates are: July 23, 24, 29, 30 and 31.

(There were also ones scheduled for July 9 and 10 but they were canceled.)

As you know from the way things have been going—the hearing dates are always subject to cancelation.

mountvernon1805 said...

Anonymous said: "It is Quashing not Squashing. It is part of the legal system. His side could have quashed subpoenas if they wanted to.”

The situation seems a bit peculiar—the board members quashed the subpoenas on their own without first asking a judge to do it. The board cited “Rule 24” as their grounds for being able to quash. Even if they had “Intervention of right,” it still sounds like, based on the applicable procedure, they needed to go through the courts in order to settle their claim to that right.

If anyone has any further information on the subject, I would be interested to hear from them.

The board cited portions of “Rule 24(A) of the Ohio Rules of Civil Procedure”:—the full text of which I’m posting:

RULE 24. Intervention

(A) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

(B) Permissive intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of this state confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

(C) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Civ.R. 5. The motion and any supporting memorandum shall state the grounds for intervention and shall be accompanied by a pleading, as defined in Civ.R. 7(A), setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene.

RULE 7. Pleadings and Motions

(A) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

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