State ex rel. McKee v. Cooper

Paul W. BrowN, J.,

concurring. I concur in the court’s judgment, reversing the judgment of the Court of Appeals which allowed the writ of prohibition. Although I agree with the rationale upon which the majority bases the second paragraph of its syllabus, I consider that portion of the opinion purely advisory.

My concurrence in the reversal is grounded upon my agreement with respondents’ argument that the prosecuting attorney lacked standing to seek this writ of prohibition, for the reason that he has no real interest in the subject matter of the action nor any statutory authority by which to proceed. State, ex rel. Dallman, v. Court of Common Pleas (1973), 35 Ohio St. 2d 176; Sierra Club v. Morton (1972), 405 U. S. 727.

It is also clear that the Adult Parole Authority performs an administrative and not a judicial or quasi-judicial function, in considering the eligibility of a reformatory inmate for parole. McDougle v. Maxwell (1964), 1 Ohio St. 2d 68; In re Schoengarth (1967), 66 Cal. 2d 295, 425 P. 2d 200; Fleischer v. Adult Authority (1962), 202 Cal. App. 2d 44, 20 Cal. Rptr. 603. See also In re Stewart (1952), 156 Ohio St. 521, certiorari denied, 344 U. S. 845. A writ of prohibition will not issue unless judicial or quasi-judicial power is to be exercised. State, ex rel. Lehmann, v. Cmich (1970), 23 Ohio St. 2d 11.

For these reasons, the Court of Appeals erred in failing to deny the writ.

Celebrezze, J., concurs in the foregoing concurring opinion.