By Paul Pfeifer
On April 16, 2009, Katrina McCall went to the Hamilton County Municipal Court to file a hand-written affidavit alleging that her husband – Mor Mbodji – had caused physical harm to her. That action touched off a case that ultimately made its way here – to the Supreme Court of Ohio.
When Katrina filed her affidavit, she signed a document that was notarized by the deputy clerk. Then, the clerk of the court, without forwarding the documents to a reviewing official, issued a warrant for Mbodji’s arrest.
After Mbodji came before the court and entered a plea of not guilty, the matter proceeded to a bench trial. The court convicted Mbodji, and he was sentenced to eight months of community service.
When the court of appeals reviewed the case, Mbodji argued that the trial court did not have jurisdiction because the complaint and affidavit were not reviewed by a reviewing official. In making this argument, Mbodji cited a law which states that a private citizen may cause the arrest or prosecution of a person charged with committing an offense if the citizen complies with certain provisions.
The law then sets forth that procedure: A citizen “may file an affidavit charging the offense committed with a reviewing official for the purpose of review to determine if a complaint should be filed by the prosecuting attorney.” A “reviewing official” is a judge, a prosecuting attorney, or a magistrate.
In June 2006, this law – we’ll call it the “citizen’s arrest” law – was amended by the Ohio legislature. Prior to that time, a private citizen could file an affidavit charging an offense without it being reviewed by a “reviewing official.” After the amendment, the law limited a private citizen’s ability to cause the arrest or prosecution of another.
The law allows clerks to accept the affidavits for filing before or after normal business hours of the reviewing officials, but clerks must forward the affidavit “to a reviewing official when the reviewing official’s normal business hours resume.” Thus, additional processing takes the place when a private citizen files an affidavit and before an arrest or prosecution is instituted.
The court of appeals nevertheless overruled Mbodji’s argument and concluded that the trial court had jurisdiction despite the lack of review. After that, the case came before us.
Both sides in this case agree that the “citizen’s arrest” law was not followed. So, the issue before us was this: What effect, if any, did the procedural error have on Mbodji’s conviction?
Mbodji argued that the complaint wasn’t valid and, because of that, the trial court was without jurisdiction to proceed. The state maintained that the complaint was properly filed because – although it didn’t follow the citizen’s arrest law – it did comply with the Criminal Rules that govern criminal proceedings and define what constitutes a valid complaint.
By a five-to-two vote our court agreed with the state’s argument and affirmed the judgment of the court of appeals. The majority concluded that because the complaint with the Criminal Rules – specifically, Criminal Rule 3 – the trial court had jurisdiction.
Justice Terrence O’Donnell and I cast the two dissenting votes. As mentioned earlier, the filing of a complaint that is initiated by a private citizen is governed by the “citizen’s arrest” law. That law provides a specific procedure crafted by the state legislature and it says: “A private citizen having knowledge of the facts who seeks to cause an arrest or prosecution… may file an affidavit charging the offense committed with a reviewing official for the purpose of review to determine if a complaint should be filed by the prosecuting attorney..”
Thus, as Justice O’Donnell wrote in his dissenting opinion, “there is no legislative authority for a private citizen to file a complaint seeking to cause an arrest or initiate a criminal prosecution.”
The legislature has established a procedure for a private citizen to file an affidavit alleging a criminal offense. That affidavit must be filed with a reviewing official, who then determines if a complaint should be filed by a prosecuting attorney. But the law does not permit a private citizen to file a criminal complaint with the clerk of a court which triggers the issuance of an arrest warrant.
“The procedure followed in this case,” Justice O’Donnell wrote, “is completely at odds with that authorized by law.” The majority acknowledged that fact, but nonetheless concluded that a municipal court has jurisdiction over a criminal prosecution initiated by a private citizen because a document titled “complaint” – which contained the information required by Criminal Code 3 – had been filed with the clerk of courts.
But Criminal Code 3 envisions that a complaint be filed by a prosecuting attorney, not by a private citizen.
“By accepting the proposition that a municipal court has jurisdiction to consider a criminal complaint initiated by a private citizen,” Justice O’Donnell wrote, “the majority opens the door to a myriad of unintended consequences, such as the filing of criminal charges by an inmate against a victim of a crime which resulted in the inmate’s incarceration; it invites quarrelling neighbors to escalate differences into the criminal realm; and other endless possibilities.
“I would submit that these kinds of situations prompted the legislature to act to specify a manner for the lawful filing of criminal complaints by private citizens. According to the majority’s rationale, any inmate could file a criminal case and cause an arrest warrant to be served on a victim, which that victim must defend, and it is only after the victim has been arrested and required to appear in court that a challenge to the sufficiency of the filing of the complaint could be presented.”
It’s that type of legal exercise that the legislature sought to prevent by requiring a private citizen to file an affidavit with a reviewing official who would first assess the matter and determine whether a prosecuting attorney should file a complaint.
But, as Justice O’Donnell concluded, “these basics of procedural due process somehow get lost in the majority’s rush to resolve this case.
Paul Pfeifer is an Ohio Supreme Court Justice.