[Cite as State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754.]




         THE STATE EX REL. MASON, PROS. ATTY., v. BURNSIDE, JUDGE.
 [Cite as State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754.]
Prohibition — Writ of prohibition sought to prevent common pleas court judge
        from enforcing order in a capital case requiring prosecuting attorney to
        provide all police reports and witness statements to defense counsel —
        State has an adequate remedy in the ordinary course of law — Cause
        dismissed.
            (No. 2007-2084 ─ Submitted December 11, 2007 ─ Decided
                                   December 20, 2007.)
                                     IN PROHIBITION.
                                  __________________
        Per Curiam.
        {¶ 1} This is an action for a writ of prohibition to prevent a common
pleas court judge from enforcing an order in a capital case requiring the
prosecuting attorney to provide all police reports and witness statements to
defense counsel. Because the state has an adequate remedy in the ordinary course
of law by appeal to raise its claim, we grant the judge’s motion and dismiss the
case.
        {¶ 2} Wilson Santiago was indicted on multiple counts, including
aggravated murder with capital specifications, for the murder of a Cleveland
police detective. Respondent, Cuyahoga County Court of Common Pleas Judge
Janet R. Burnside, is the judge presiding over the criminal case.
        {¶ 3} On October 22, 2007, Judge Burnside ordered relator, Cuyahoga
County Prosecuting Attorney William D. Mason, to “produce copies of (A) all
police reports of whatever form, title or description and (B) all witness statements
to defense counsel no later than October 25, 2007 at 4:00 p.m.” The judge
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entered this order upon Santiago’s motions to assure that defense counsel would
receive the same information that the state was willing to provide to the
defendant’s experts. On October 24, the state filed a memorandum claiming that
the judge had exceeded her authority under Crim.R. 16 by making the discovery
order.
         {¶ 4} On November 6, Judge Burnside issued a new judgment entry
ordering the state to “provide all the police reports and witness statements no later
than November 13, 2007 at 4:30 p.m.” The judge stated that although the order
“contravenes the strict language of Crim.R. 16,” because the state had been
willing to ignore the rule and provide the same reports to the defense experts,
fundamental fairness compelled the disclosure of the reports to defense counsel as
well. More specifically, the judge observed that the state’s position would cause
the ineffective assistance of defense counsel:
         {¶ 5} “The unstated premise of this arrangement is that experts hired by
defense counsel may not divulge contents of police reports to defense counsel.
This places Defendant’s counsel in an unenviable and awkward position of
possessing less information than their agents, that is, their chosen witnesses.
Obvious difficulties are seen with this arrangement. The fact the arrangement has
allegedly been used in other capital cases does not enamor this Court of its use
here. How is the Defendant protected from counsel being unwittingly ill advised
and unprepared for facts of which experts have knowledge but counsel does not[?]
Without such disclosure how are the defense counsel going to take advantage of
facts brought out?       How can counsel formulate direct examination of the
witnesses?     How does defense counsel protect against * * * unwittingly
introducing expert testimony based on facts that are not in fact testified to and
placed in evidence[?]”
         {¶ 6} Instead of seeking leave from the court of appeals to immediately
appeal the judge’s discovery order pursuant to R.C. 2945.67 and seeking a stay of




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the order, Mason filed this action for an extraordinary writ of prohibition to
prevent Judge Burnside from enforcing her November 6 order. Mason also filed a
motion for a stay of the November 6 discovery order pending the court’s
resolution of this prohibition case. Judge Burnside filed a motion to dismiss, and
Mason filed a memorandum in opposition.
       {¶ 7} This cause is now before us for our S.Ct.Prac.R. X(5)
determination.
                        S.Ct.Prac.R. X(5) Determination
       {¶ 8} We must now determine whether dismissal, an alternative writ, or
a peremptory writ is appropriate. Dismissal, which Judge Burnside requests, is
required if it appears beyond doubt, after presuming the truth of all material
factual allegations of Mason’s complaint and making all reasonable inferences in
Mason’s favor, that Mason is not entitled to the requested extraordinary relief in
prohibition. See State ex rel. Beane v. Dayton, 112 Ohio St.3d 553, 2007-Ohio-
811, 862 N.E.2d 97, ¶ 26. If, however, after so construing Mason’s complaint, it
appears that his prohibition claim may have merit, we will grant an alternative
writ and issue a schedule for the presentation of evidence and briefs. See id.
Mason’s request for a stay of Judge Burnside’s discovery order is essentially a
request for an alternative writ.    See S.Ct.Prac.R. X(6) (alternative writ in
prohibition case “stays proceedings in the action sought to be prohibited until
final determination of the Supreme Court”).
       {¶ 9} For the following reasons, we grant Judge Burnside’s motion and
dismiss the cause.
       {¶ 10} First, “absent a patent and unambiguous lack of jurisdiction, ‘a
court having general subject-matter jurisdiction can determine its own
jurisdiction, and a party challenging that jurisdiction has an adequate remedy by
appeal.’ ” State ex rel. Powell v. Markus, 115 Ohio St.3d 219, 2007-Ohio-4793,
874 N.E.2d 775, ¶ 8, quoting State ex rel. Shimko v. McMonagle (2001), 92 Ohio




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St.3d 426, 428-429, 751 N.E.2d 472. Mason claims that because Judge Burnside
patently and unambiguously lacked jurisdiction to issue the pretrial discovery
order, a writ of prohibition should issue.
       {¶ 11} It is unquestioned that “courts have broad discretion over
discovery matters.” State ex rel. Citizens for Open, Responsive & Accountable
Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 18.
Given the discretionary authority vested in Judge Burnside in discovery matters,
“an extraordinary writ will not issue to control her judicial discretion, even if that
discretion is abused.” Berthelot v. Dezso (1999), 86 Ohio St.3d 257, 259, 714
N.E.2d 888; see also State ex rel. Abner v. Elliott (1999), 85 Ohio St.3d 11, 16,
706 N.E.2d 765 (writ of prohibition will not generally issue to challenge
discovery orders).
       {¶ 12} Therefore, the judge did not patently and unambiguously lack
jurisdiction to issue the discovery order. By so holding, we do not rule on the
merits of Mason’s jurisdictional claim that Judge Burnside abused her discretion
in issuing the pretrial discovery order because our duty in prohibition cases is
limited to determining whether jurisdiction is patently and unambiguously
lacking. State ex rel. Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, 831
N.E.2d 1003, ¶ 28; Goldberg v. Maloney, 111 Ohio St.3d 211, 2006-Ohio-5485,
855 N.E.2d 856, ¶ 45.
       {¶ 13} Second, although Mason claims that he is entitled to the writ of
prohibition and the stay because he is prevented from appealing Judge Burnside’s
discovery order by our holding in State ex rel. Steckman v. Jackson (1994), 70
Ohio St.3d 420, 639 N.E.2d 83, paragraph seven of the syllabus (“Discovery
orders are interlocutory and, as such, are neither final nor appealable”), we also
recognized in Steckman that an exception to this general rule is the state’s right
under R.C. 2945.67 to appeal “by leave of the court to which the appeal is taken




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any other decision, except the final verdict, of the trial court in a criminal case.”
Id. at 438-439.
       {¶ 14} Because Mason may appeal by leave of the court of appeals and
file a motion to stay the discovery order, he has an adequate remedy at law, which
precludes his claim for extraordinary relief in prohibition. State ex rel. Corrigan
v. Griffin (1984), 14 Ohio St.3d 26, 27, 14 OBR 328, 470 N.E.2d 894; State ex
rel. Boardwalk Shopping Ctr., Inc. v. Cuyahoga Cty. Court of Appeals (1990), 56
Ohio St.3d 33, 34-35, 564 N.E.2d 86. In State ex rel. Lighttiser v. Spahr (1985),
18 Ohio St.3d 234, 18 OBR 292, 480 N.E.2d 779, a prosecuting attorney similarly
sought a writ of prohibition to prevent a trial court from enforcing a pretrial
discovery order compelling the prosecutor to disclose all written statements by
potential witnesses. We quoted Corrigan, 14 Ohio St.3d at 27, 14 OBR 328, 470
N.E.2d 894, in holding that the availability of an appeal for the prosecutor
constituted “ ‘an adequate remedy at law sufficient to preclude the granting of an
extraordinary writ.’ ” Lighttiser at 235, 18 OBR 292, 480 N.E.2d 779.
       {¶ 15} Finally, insofar as Mason might be held in contempt if he does not
follow the discovery order, he has an adequate remedy by appeal to challenge any
contempt order based on his claim that Judge Burnside’s discovery order is
erroneous. “ ‘[A]ppealing a contempt order is an adequate remedy at law which
will result in denial of the writ.’ ” State ex rel. Wellington v. Kobly, 112 Ohio
St.3d 195, 2006-Ohio-6571, 858 N.E.2d 798, ¶ 29, quoting State ex rel. Mancino
v. Campbell (1993), 66 Ohio St.3d 217, 220, 611 N.E.2d 319.
       {¶ 16} Based on the foregoing, the judge did not patently and
unambiguously lack jurisdiction to issue the pretrial discovery order and the state
has an adequate remedy in the ordinary course of law by way of appeal to
challenge the propriety of that order. Therefore, we deny Mason’s motion for a
stay and grant Judge Burnside’s motion to dismiss.
                                                                   Cause dismissed.




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       MOYER,     C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                __________________
       William D. Mason, Cuyahoga County Prosecuting Attorney, and Lisa
Reitz Williamson, Assistant Prosecuting Attorney, for relator.
       Baker & Hostetler, L.L.P., James R. Wooley, and Stephan J.
Schlegelmilch, for respondent.
                           ______________________




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