Shutway v. Talebi

[Cite as Shutway v. Talebi, 2023-Ohio-3818.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY

JOHN ANTHONY SHUTWAY :
:
Appellant : C.A. No. 2023-CA-14
:
v. : Trial Court Case No. 22 CV 0028
:
KEVIN S. TALEBI, ET AL. : (Civil Appeal from Common Pleas
: Court)
Appellees :
:

...........

OPINION

Rendered on October 20, 2023

...........

JOHN ANTHONY SHUTWAY, Pro Se Appellant

LINDA L. WOEBER & COOPER D. BOWEN, Attorneys for Appellee Hon. Nicholas A.
Selvaggio

ANGELICA M. JARMUSZ, Attorney for Appellees Kevin S. Talebi, Samantha B.
Whetherholt, and Magistrate Scott Schockling

.............

EPLEY, J.

{¶ 1} John Anthony Shutway appeals from two judgments of the Champaign

County Court of Common Pleas. The first granted summary judgment to Prosecutor

Kevin S. Talebi, Magistrate Scott Schockling, and Assistant Prosecutor Samantha B.
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Whetherholt on his civil claims. The second granted Judge Nicholas A. Selvaggio’s

Civ.R. 12(B)(6) motion to dismiss. For the following reasons, the trial court’s judgments

will be affirmed.

I. Facts and Procedural History

{¶ 2} Shutway’s dispute with the Champaign County prosecutors and judicial

officers stems from his prosecution and conviction in Champaign C.P. No. 2018 CR 77.

In that case, a jury found Shutway guilty of one count of failure to comply with an order or

signal of a police officer and one count of obstructing official business. We affirmed

Shutway’s convictions on direct appeal. State v. Shutway, 2d Dist. Champaign No.

2018-CA-39, 2020-Ohio-5035. The Ohio Supreme Court declined to review his criminal

case.

{¶ 3} Shutway originally brought a civil action against Talebi and Judge Selvaggio

and other unnamed individuals in 2020, alleging that the prosecutor, trial judge, and their

unnamed assistants had violated his statutory and constitutional rights during his criminal

case. Shutway v. Talebi, Champaign C.P. No. 2020 CV 90. That action was voluntarily

dismissed.

{¶ 4} On March 3, 2022, Shutway re-filed his lawsuit against Talebi and Judge

Selvaggio and unnamed defendants. He sought a declaratory judgment that his

constitutional rights had been violated and asserted claims that Talebi and Judge

Selvaggio had breached their legal duties, that they were vicariously liable for breaches

by their assistants, and that they had engaged in a civil conspiracy to deny him of his

rights during the criminal case. Approximately three weeks later, Shutway filed an
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amended verified complaint adding Whetherholt and Magistrate Schockling as party-

defendants. Talebi and Whetherholt and, separately, Magistrate Schockling filed

answers, denying the claims and raising numerous affirmative defenses, including res

judicata and immunity.

{¶ 5} Effective March 29, 2022, Judge Linton D. Lewis, a retired judge of the Perry

County Court of Common Pleas, was assigned to preside over this case and Shutway v.

Melvin, Champaign C.P. No. 2022 CV 29, another case brought by Shutway. Judge

Lewis filed his certificate of assignment on April 11, 2022.

{¶ 6} On April 14, 2022, Judge Selvaggio moved to dismiss Shutway’s claims

against him pursuant to Civ.R. 12(B)(6). He argued that he had absolute judicial

immunity and statutory immunity for all Shutway’s claims and that Shutway failed to set

forth any viable claims. Judge Selvaggio attached several court documents to his

motion, including filings from Shutway’s criminal case and a docket sheet from Shutway’s

previously filed action against him and Talebi.

{¶ 7} A week later, Shutway filed “instructions to the clerk,” purporting to order the

clerk of courts to obtain Judge Lewis’s oath of office to sit as a visiting judge, to strike

Judge Lewis’s journal entry with his certificate of assignment, and to accept no further

filings from Judge Lewis until the oath of office was filed. In its docket, the clerk identified

Shutway’s filing as a motion. Shutway filed a similar “praecipe to the clerk” in May 2022.

{¶ 8} Shutway responded to Judge Selvaggio’s motion to dismiss by seeking leave

to amend his complaint; he stated that he construed the motion to dismiss as a motion

for a more definite statement. Judge Selvaggio opposed Shutway’s motion to amend his
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complaint.

{¶ 9} On May 6, 2022, Talebi, Whetherholt, and Magistrate Schockling filed a

motion for leave to file a motion for summary judgment. They argued that “[l]egal barriers

to Plaintiff’s success, such as res judicata, the ‘relation-back’ doctrine and expired statute

of limitations, absolute immunity, and the minimum pleading standard, entitle the County

Defendants to judgment as a matter of law.” Contemporaneously with this motion, all

defendants moved for a stay of discovery until dispositive motions were resolved.

{¶ 10} On June 23, 2022, Shutway filed an “objection” to Judge Lewis’s making

entries in this case.

{¶ 11} Four days later, the trial court granted the motion for leave to file the

summary judgment motion and the motion to stay discovery. Shutway was ordered to

file a summary judgment response by July 25, 2022, which he did. The trial court also

denied Shutway’s motion to amend his complaint and ordered him to respond to the

motion to dismiss within 14 days. Shutway filed his response on July 11, 2022, along

with another “objection” to Judge Lewis’s presiding over the case. On July 19, 2022, the

trial court summarily overruled Shutway’s objection.

{¶ 12} On August 4, 2022, Shutway filed an affidavit of disqualification with the

Ohio Supreme Court, seeking to disqualify Judge Lewis from this case and his separate

case against Matthew Melvin. As summarized by the supreme court, Shutway alleged

that Judge Lewis had “failed to comply with the Ohio Constitution, the Ohio Revised Code,

and this court’s guidelines for the assignment of judges – apparently because Judge

Lewis has not filed a copy of an oath of office in the underlying cases.” Eleven days
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later, the Ohio Supreme Court rejected Shutway’s request for disqualification and allowed

the cases to proceed before Judge Lewis. Despite the Ohio Supreme Court’s

determination, on October 6, 2022, Shutway again filed an objection to Judge Lewis’s

making entries in the case and demanded that the judge’s prior entries be stricken.

{¶ 13} The following day, the trial court granted Talebi, Whetherholt, and

Schockling’s motion for summary judgment. It concluded that (1) the claims against

Whetherholt and Schockling were filed outside of the statute of the limitations and were,

thus, time-barred, (2) Talebi, Whetherholt, and Schockling were entitled to absolute

immunity, (3) speedy relief was not necessary to preserve Shutway’s rights and thus he

was not entitled to declaratory relief, (4) Shutway did not set forth a claim for civil

conspiracy, and (5) vicarious liability did not apply because Shutway did not properly

allege an underlying tort. The trial court identified its judgment as a final appealable

order, although it did not include Civ.R. 54(B) certification.

{¶ 14} On October 13, 2022, the trial judge expressly overruled Shutway’s most

recent objection to his presiding in the case. The judge attached a copy of his assigned

retired judge oath of office, which was certified on September 15, 2022.

{¶ 15} The trial court also granted Judge Selvaggio’s motion to dismiss and denied

Shutway’s motion to amend his complaint. It reasoned that Judge Selvaggio had

absolute judicial immunity for his actions while presiding over Shutway’s criminal case

and that he was entitled to statutory immunity under R.C. 2744.03(A)(1). The court

further stated that a declaratory judgment action was not the proper vehicle for

challenging a judge’s determinations made in his official capacity. The court noted that
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Shutway had not provided specifics for his civil conspiracy, civil tort, and vicarious liability

claims and that no private right of action existed for constitutional violations. In addition,

the court found that no vicarious liability was possible where no underlying tort was pled.

The court also designated this decision as a final appealable order but did not include

Civ.R. 54(B) certification.

{¶ 16} Shutway promptly appealed the trial court’s rulings on the motions to

dismiss and for summary judgment. Shutway v. Talebi, 2d Dist. Champaign Nos. 2022-

CA-25 and 2022-CA-26. We dismissed both appeals for lack of a final appealable order,

because Shutway’s claims against the unnamed defendants had not been resolved.

{¶ 17} Shutway did not thereafter seek Civ.R. 54(B) certification from the trial court,

nor did he request leave to amend his complaint to identify the unnamed defendants. No

new amended complaint was filed. However, on March 2, 2023, three documents titled

“return of service of summon on complaint” were filed, indicating that an amended

complaint had been served on three new individuals. Talebi, Whetherholt, and

Schockling moved to strike the documents. On March 31, 2023, before the motion to

strike was resolved, Shutway again appealed from the trial court’s summary judgment

and dismissal judgments.

{¶ 18} Shutway raises four assignments of error on appeal. Notably, he does not

challenge the merits of the trial court’s summary judgment and dismissal decisions.

Rather, his arguments revolve around alleged procedural irregularities in the assignment

of Judge Lewis to this case. We will address Shutway’s claims in a manner that

facilitates our analysis.
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II. Jurisdiction

{¶ 19} As an initial matter, Talebi, Whetherholt, and Magistrate Schockling assert

that this appeal must be dismissed due to untimeliness and for lack of jurisdiction.

A. Timeliness

{¶ 20} We first address whether Shutway’s appeal was timely filed. The answer

turns on when the underlying judgments became final and appealable.

{¶ 21} “The general rules regarding final appealable orders in multiparty and/or

multiclaim cases involve the tandem of R.C. 2505.02(B) for substance and Civ.R. 54(B)

for procedure. A court first applies R.C. 2505.02(B) to determine whether the order

‘affects a substantial right and whether it in effect determines an action and prevents a

judgment.’ If the court of appeals determines that the trial court order is final under R.C.

2505.02, the next step is to determine whether the trial court certified the order with the

language of Civ.R. 54(B) – ‘there is no just reason for delay.’ The use of Civ.R. 54(B)

certification by a trial court is discretionary.” (Citations omitted.) Sullivan v. Anderson

Twp., 122 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d 88, ¶ 10; Townsend v. Kettering,

2022-Ohio-2710, 194 N.E.3d 457, ¶ 11 (2d Dist.).

{¶ 22} “It is axiomatic that an appellate court has jurisdiction to review only final

orders or judgments of the lower courts in its district. Section 3(B)(2), Article IV, Ohio

Constitution; R.C. 2505.02. We have no jurisdiction to review an order or judgment that

is not final, and an appeal therefrom must be dismissed.” Nored v. Dayton City School

Dist. Bd. of Edn., 2019-Ohio-1476, 129 N.E.3d 503, ¶ 3 (2d Dist.), citing Gen. Acc. Ins.

Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
 -8-

{¶ 23} Shutway first filed a notice of appeal from the October 7, 2022 summary

judgment decision on November 4, 2022. Shutway v. Talebi, 2d Dist. Champaign No.

2022-CA-25. He separately appealed the trial court’s dismissal judgment on November

14, 2022. Shutway v. Talebi, 2d Dist. Champaign No. 2022-CA-26.

{¶ 24} In both appellate cases, we ordered Shutway to show cause why the appeal

should not be dismissed for lack of a final appealable order. We noted that the amended

complaint included claims against unnamed defendants, which had not been resolved,

and the trial court had not provided Civ.R. 54(B) certification. We continued: “[W]here a

civil action includes claims against John Doe defendants as to which the one-year period

for service has not expired, and the plaintiff has not expressly abandoned those claims,

a judgment in favor of other defendants that does not include a certification pursuant to

Civ.R. 54(B) is not a final appealable order.” See Nored at ¶ 7.

{¶ 25} Shutway did not respond to the show cause order in Case No. 2022-CA-25,

and we dismissed the appeal for lack of jurisdiction. Decision & Final Judgment Entry

(Dec. 19, 2022). He did respond to our show cause order in Case No. 2022-CA-26, but

we nevertheless concluded that our show cause order was not satisfied. We also

dismissed that appeal for lack of a final appealable order. Decision & Final Judgment

Entry (Dec. 20, 2022). Shutway did not thereafter seek Civ.R. 54(B) certification from

the trial court. Rather, he waited until March 31, 2023 – a year and three days following

the filing of his amended complaint – to file the instant appeal of both the summary

judgment and dismissal judgments.

{¶ 26} Talebi, Whetherholt, and Schockling state that Shutway arguably
 -9-

abandoned his claims against the unnamed defendants. We have no basis to reach that

conclusion. Shutway’s March 28, 2022 amended complaint included claims against

unnamed prosecutor’s assistants and judicial assistants, and he had one year in which to

name them. There is no suggestion in the record that he abandoned those claims.

Rather, his ability to pursue those claims was foreclosed when the one-year period

expired. Werner Properties, Inc. v. Gasearch, LLC, 2023-Ohio-1049, 214 N.E.3d 612,

¶ 18 (8th Dist.) (“when the one-year period for naming and serving John Doe defendants

has expired, a judgment rendered as to other defendants may be considered final and

appealable because the action never commenced against the John Doe defendants”).

At that juncture, the trial court’s previously interlocutory rulings against Talebi,

Whetherholt, Magistrate Schockling, and Judge Selvaggio became final. See Nored.

{¶ 27} Shutway filed his notice of appeal within 30 days of the date when the trial

court’s judgments became final. Accordingly, we conclude that his appeal is timely.

B. Jurisdiction

{¶ 28} Next, we consider whether this appellate court has “jurisdiction” over

Shutway’s appeal of matters related to Judge Lewis’s assignment as a retired visiting

judge. Talebi, Whetherholt, and Magistrate Schockling argue that this appeal must be

dismissed because we cannot review the Ohio Supreme Court’s appointment of a visiting

judge, the Ohio Supreme Court has already addressed the issues Shutway raises,

Shutway cannot enforce the authorities that he cites, and his claims have no merit.

{¶ 29} “The general term ‘jurisdiction’ can be used to connote several distinct

concepts, including jurisdiction over the subject matter, jurisdiction over the person, and
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jurisdiction over a particular case.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75,

2014-Ohio-4275, 21 N.E.3d 1040, ¶ 18, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-

Ohio-1980, 806 N.E.2d 992, ¶ 11-12. “Subject-matter jurisdiction refers to the

constitutional or statutory power of a court to adjudicate a particular class or type of case.”

Corder v. Ohio Edison Co., 162 Ohio St.3d 639, 2020-Ohio-5220, 166 N.E.3d 1180, ¶ 14.

“A court’s subject-matter jurisdiction is determined without regard to the rights of the

individual parties involved in a particular case.” Kuchta at ¶ 19. Instead, “the focus is

on whether the forum itself is competent to hear the controversy.” Corder at ¶ 14, quoting

State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 23.

{¶ 30} In contrast, “a court’s jurisdiction over a particular case refers to the court’s

authority to proceed or rule on a case that is within the court’s subject-matter jurisdiction.”

Kuchta at ¶ 19. This involves consideration of the rights of the parties. Id. When a

court has subject-matter jurisdiction, any error in the exercise of jurisdiction over the case

causes a judgment to be voidable rather than void. Id.

{¶ 31} In this case, Shutway has appealed the trial court’s dismissal of his claims

against Judge Selvaggio and its grant of summary judgment to Talebi, Whetherholt, and

Magistrate Schockling in a civil action. This appellate court has subject matter

jurisdiction over appeals from civil actions brought in the Champaign County Court of

Common Pleas. Ohio Constitution, Article IV, Section 3; R.C. 2501.02(C).

{¶ 32} Talebi, Whetherholt, and Magistrate Schockling assert, however, that the

Ohio Supreme Court’s ruling on Shutway’s affidavit of disqualification divests us of

jurisdiction to address Shutway’s claims. While the supreme court’s ruling on Shutway’s
 -11-

affidavit of disqualification may govern our resolution of the issues Shutway raises, we

disagree that it deprives us of jurisdiction over this appeal.

{¶ 33} Whether an assigned judge has authority to preside over a case generally

may be raised on direct appeal. State ex rel. Smith v. Triggs, Ohio Slip Opinion No.

2023-Ohio-3098, __ N.E.3d. __, ¶ 7 (“Smith could have raised any issue regarding the

transfer of his criminal case from Judge Ruehlman to Judge Schweikert in a direct appeal,

which constitutes an adequate remedy in the ordinary course of the law.”); State ex rel.

Key v. Spicer, 91 Ohio St.3d 469, 470, 746 N.E.2d 1119 (2001) (“[A] claim of improper

assignment of a judge can generally be adequately raised by way of appeal.”); State ex

rel. Harris v. Turner, 160 Ohio St.3d 506, 2020-Ohio-2901, 159 N.E.3d 1121, ¶ 13; see

also In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, ¶ 8.

{¶ 34} Talebi, Whetherholt, and Magistrate Schockling cite Lloyd v. Thornsbery,

11th Dist. Portage No. 2019-P-0080, 2021-Ohio-239, to support their contention that we

lack jurisdiction to review a visiting judge’s assignment. However, the Eleventh District

relied on the law of the case doctrine articulated in Nolan v. Nolan, 11 Ohio St.3d 1, 462

N.E.2d 410 (1984). Lloyd at ¶ 11. The law of the case doctrine functions to compel

inferior courts to follow the mandates of reviewing courts. State v. W.T.D., 2d Dist.

Montgomery No. 29238, 2022-Ohio-632, ¶ 18, citing Nolan at 3. It provides that “the

decision of a reviewing court in a case remains the law of that case on the legal questions

involved for all subsequent proceedings in the case at both the trial and reviewing levels.”

Nolan at 3. Therefore, “[a]bsent extraordinary circumstances, such as an intervening

decision by the Supreme Court, an inferior court has no discretion to disregard the
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mandate of a superior court in a prior appeal in the same case.” Id. at syllabus. The

law of the case doctrine does not deprive the inferior court of jurisdiction to address the

claim, such that the case must be dismissed.

{¶ 35} Finally, we note that “the issue before the chief justice in disqualification

proceedings is a narrow one.” In re Disqualification of Burge, 142 Ohio St. 3d 57, 2014-

Ohio-5871, 28 N.E.3d 48, ¶ 4. “The constitutional and statutory responsibility of the Chief

Justice in ruling on an affidavit of disqualification is limited to determining whether a judge

in a pending case has a bias, prejudice, or other disqualifying interest that mandates the

judge’s disqualification from that case.” In re Disqualification of Kate, 88 Ohio St.3d

1208, 1209-1210, 723 N.E.2d 1098 (1999), citing Ohio Constitution, Art. IV, Section 5(C),

and R.C. 2701.03.

{¶ 36} Consistent with that limitation, we have previously held that “the

disqualification of a judge of a court of common pleas for bias and prejudice is confided

to the sole determination of the Chief Justice of the Supreme Court of Ohio, or a justice

of the Ohio Supreme Court designated by the Chief Justice to perform that function.”

E.g., Hanselman v. Hanselman, 2d Dist. Montgomery No. 21615, 2007-Ohio-183, ¶ 92.

We have further commented, however, that while we lack authority to determine whether

a trial court judge should be disqualified for bias or should recuse himself, “[s]ome courts

have recognized a distinction * * * where the question is not prospective disqualification

or recusal but whether the judge’s conduct during trial deprived the defendant of his due

process rights.” State v. Evans, 2d Dist. Montgomery No. 27178, 2017-Ohio-8184, ¶ 10,

fn.3, citing State v. Payne, 149 Ohio App.3d 368, 2002-Ohio-5180, 777 N.E.2d 333, ¶ 11
 -13-

(7th Dist.); Dibert v. Carpenter, 2018-Ohio-1054, 98 N.E.3d 350, ¶ 72.

{¶ 37} With these principles in mind, we reject Talebi, Whetherholt, and

Schockling’s argument that we must dismiss this appeal due to the supreme court’s ruling

on Shutway’s affidavit of disqualification.

{¶ 38} Talebi, Whetherholt, and Schockling further argue that Shutway has no right

to enforce the authority he cites, namely the Rules of Superintendence for the Courts of

Ohio, the Supreme Court of Ohio Guidelines for Assignment of Judges, the Local Rules

of the Champaign County Court of Common Pleas, and the Ohio Constitution. Whether

Shutway can enforce these rules goes to the merits of his assignments of error, not this

appellate court’s jurisdiction over the appeal. Similarly, Talebi, Whetherholt, and

Schockling’s argument that Shutway “has not presented a reversible error” raises

questions regarding the merits of his claims, not this court’s jurisdiction to address them.

Accordingly, we reject Talebi, Whetherholt, and Magistrate Schockling’s assertion that

this appeal must be dismissed for lack of jurisdiction.

III. Judge Lewis’s Assignment as Visiting Judge

{¶ 39} Shutway’s first, second, and third assignments of error are each grounded

in his belief that Judge Lewis was not properly assigned as a retired visiting judge to

preside over his case. First, he raises that Judge Selvaggio, as administrative judge,

erred by failing to follow court guidelines for the appointment of a visiting judge, including

requirements regarding the filing of the certificate of assignment, and violated

constitutional provisions requiring an oath of office for appointed judges. Second,

Shutway claims that Judge Lewis erred and committed a fraud on the court by exercising
 -14-

judicial duties before taking an oath of office for his assignment. Third, Shutway argues

that the clerk of courts committed plain error by accepting entries from Judge Lewis

without first receiving his oath of office and an original certificate of assignment from the

administrative judge. Shutway’s fourth assignment of error claims that the clerk of courts

further erred by failing to file Shutway’s “praecipes” as praecipes.

A. Effect of Affidavit of Disqualification

{¶ 40} We begin with the fact that Shutway filed an affidavit of disqualification

against Judge Lewis with the Supreme Court of Ohio. In his affidavit, Shutway raised

the same alleged procedural deficiencies with Judge Lewis’s assignment, including the

absence of the original certificate of assignment in the court’s miscellaneous docket, the

administrative judge’s failure to file Judge Lewis’s assignment, Judge Lewis’s failure to

file a copy of his oath of office for this appointment, the fact that Judge Lewis no longer

lives in Perry County, and Judge Lewis’s failure to correct the filing of his praecipes as

“motions.” Shutway sought Judge Lewis’s disqualification due to these alleged

procedural errors.

{¶ 41} In denying the affidavit of disqualification, the supreme court concluded that

Shutway had not established prejudice or bias on Judge Lewis’s part. It reasoned:

Mr. Shutway has not established that Judge Lewis has hostile feelings

toward him or that the judge has formed a fixed anticipatory judgment on

any issue in the underlying cases. Nor has Mr. Shutway set forth a

compelling argument for disqualifying Judge Lewis to avoid an appearance

of partiality. Although an improper assignment may be evidence of an
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appearance of impropriety warranting a judge’s disqualification, Mr.

Shutway has failed to establish that there were any improprieties relating to

Judge Lewis’s assignment to the underlying cases. As the documents

submitted with Mr. Shutway’s affidavits indicate, Mr. Shutway was

previously advised that the implementation of an oath requirement for

retired assigned judges has been delayed. Nothing about the assignment

process here suggests that Judge Lewis would be unable to fairly and

impartially preside over the underlying matters.

(Citation omitted.)

{¶ 42} Although the focus of the Ohio Supreme Court’s review was for prejudice or

bias, the supreme court expressly found that Shutway had not established improprieties

related to Judge Lewis’s assignment, and it permitted Judge Lewis to continue to preside

over the case. Shutway claims the same procedural irregularities in Judge Lewis’s

appointment here. Consequently, under the law of the case doctrine, we must follow the

supreme court’s determination. And even assuming that we could consider Shutway’s

arguments anew, we conclude that no reversible error exists.

B. Certificate of Assignment

{¶ 43} Under Ohio’s Rules of Superintendence, the administrative judge of a trial

court has the authority to assign cases to individual judges of the court, Sup.R. 4.01(C),

and to request the assignment of a judge by the Chief Justice of the Ohio Supreme Court,

Sup.R. 4.01(H), Sup.R. 36.019(B). The local rules of the Champaign County Court of

Common Pleas states that the administrative judge of the General Division “shall seek
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temporary assignments of judges whenever the Administrative Judge deems such

assignment is required.” Champaign G.D.L.R. 1.8(A). Under Section 2.06 of the Ohio

Supreme Court’s Guidelines for Assignment of Judges, the request for an assigned judge

must be submitted by electronic means via the Ohio Supreme Court’s website.

{¶ 44} In this case, the “judge assignment” portion of the Ohio Supreme Court

website substantiates that Judge Selvaggio requested the assignment of a visiting judge

for the Champaign County Court of Common Pleas, General Division, in Case No. 2022

CV 28, Shutway v.Talebi. Judge Lewis, a retired judge, was assigned by then-Chief

Justice Maureen O’Connor as the visiting judge, effective March 29, 2022. Assignment

No. 22JA0641. It is well established that the Chief Justice may assign any voluntarily

retired judge to active duty as a judge. Ohio Constitution, Art. IV, Section 6(C).

{¶ 45} The supreme court’s Guidelines indicate that the administrative judge

requesting the assignment “shall direct the original certificate of assignment be filed with

the clerk of the court to which the assigned judge has been assigned and included as part

of the record in the case.” Section 5.01(A). We have noted, however, that the

Guidelines have not been adopted as rules and are not binding on Ohio courts. PNC

Mtge. v. Guenther, 2d Dist. Montgomery No. 25385, 2013-Ohio-3044, ¶ 22, fn. 3, citing

Forsyth v. Feinstein, 2d Dist. Clark No. 1999-CA-66, 2000 WL 192298, *2 (Feb. 18, 2000)

and Ward v. NationsBanc Mtge. Corp., 6th Dist. Erie No. E-05-040, 2006-Ohio-2766,

¶ 22; see also Lloyd, 11th Dist. Portage No. 2019-P-0080, 2021-Ohio-239, at ¶ 10.

Moreover, we have recognized the validity of the assignment even when the certificate of

assignment was not filed. Id.; see also Marino v. Oriana House, Inc., 9th Dist. Summit
 -17-

No. 23389, 2007-Ohio-1823, ¶ 9.

{¶ 46} Here, Judge Selvaggio, the administrative judge, had recused himself from

the case, and Judge Lewis directed that his certificate of assignment be filed in this case.

The certificate of assignment was filed on April 11, 2022. The certificate establishes that

Judge Lewis had the authority to handle any proceedings in the trial court for the

assignment period. Guenther at ¶ 22. We find no error in Judge Lewis’s ordering that

his certificate of assignment be filed.

C. Oath of Office

{¶ 47} Shutway further asserts that Judge Lewis should not have taken any action

in this case, nor should the clerk of courts have accepted any of Judge Lewis’s filings,

until Judge Lewis took an oath of office. He further faults Judge Selvaggio for failing to

administer the oath of office to Judge Lewis.

{¶ 48} Shutway asserts that the Ohio and federal constitutions require public

officials to take an oath of office. Of relevance here, Article XV, Section 7 of the Ohio

Constitution states: “Every person chosen or appointed to any office under this state,

before entering upon the discharge of its duties, shall take an oath or affirmation, to

support the constitution of the United States, and of this state, and also an oath of office.”

{¶ 49} R.C. 3.23 sets forth the oath of office for judges and requires each judge to

take the oath “on or before the first day of the judge’s official term.” The statute further

addresses what the certificate of oath must contain, as well as when and to whom it must

be transmitted.

{¶ 50} However, neither Article XV, Section 7 of the Ohio Constitution nor R.C.
 -18-

3.23 requires an additional oath of office to be administered upon assignment as a retired

judge. State ex rel. Evans v. Shoemaker, 10th Dist. Franklin No. 02AP-671, 2003-Ohio-

757, ¶ 13, quoting Evans v. Supreme Court of Ohio, 119 Ohio Misc.2d 34, 2002-Ohio-

3518, 773 N.E.2d 621, ¶ 27. As stated by the Tenth District: “[W]hen a retired judge is

assigned to active duty, that judge is resuming the duties in that office. The judge’s

original oath of office satisfies the requirement that a judge take an oath of office before

entering upon the discharge of his duties.” Id. at ¶ 14.

{¶ 51} Shutway’s exhibits attached to his affidavit of disqualification included

emails between Shutway and the Ohio Supreme Court’s chief legal counsel. Counsel

indicated that a requirement that retired assigned judges take a one-time oath of office

was not yet in effect. The Ohio Supreme Court’s judgment entry regarding Shutway’s

affidavit of disqualification further noted that “the implementation of an oath requirement

for retired assigned judges has been delayed.” We find no support for Shutway’s

assertion that Judge Lewis was required to take an oath of office when he was assigned

to this case. We note that Judge Lewis took a retired assigned judge oath of office on

September 15, 2022, prior to his rulings on the defendants’ dispositive motions.

{¶ 52} Even if an oath requirement existed for assigned retired judges, Shutway

provides no authority for his contention that Judge Selvaggio, who had recused himself

from the case, had the responsibility to administer the oath of office to Judge Lewis. We

find no error in Judge Selvaggio’s handling of the matter.

D. Filings with the Clerk of Courts

{¶ 53} Finally, Shutway contends that the clerk of courts erred by improperly
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labeling his praecipes on the court’s docket; those “praecipes” sought to order the clerk

to obtain a copy of Judge Lewis’s oath of office, to remove Judge Lewis’s existing entries

from the docket, and to not accept future submissions from Judge Lewis. Even if the

clerk should have labeled Shutway’s filings differently on the docket, we find no prejudicial

error. Shutway had no authority to order the clerk of courts to reject filings from Judge

Lewis or to strike any of Judge Lewis’s filings.

{¶ 54} Moreover, the clerk of courts lacked the discretion to reject documents from

Judge Lewis for filing. “The clerk, as a ministerial officer of the court, has a duty by law

to accept and file documents tendered to him or her.” State ex rel. Montgomery Cty.

Pub. Defender v. Siroki, 108 Ohio St.3d 334, 2006-Ohio-1065, 843 N.E.2d 778, ¶ 10,

quoting Rhoades v. Harris, 135 Ohio App.3d 555, 557, 735 N.E.2d 6 (1st Dist.1999). The

clerk of courts is authorized to refuse to accept for filing only documents submitted for

filing by a vexatious litigator who has failed to obtain leave to proceed under R.C. 2323.52.

Id. at ¶ 10, citing R.C. 1907.20.

{¶ 55} Shutway’s assignments of error are overruled.

IV. Conclusion

{¶ 56} The trial court’s judgments will be affirmed.

.............

TUCKER, J. and HUFFMAN, J., concur.