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2006-1913. Borkowski v. Abood, Slip Opinion No. 2008-Ohio-857.
Lucas App. No. L-05-1425, 169 Ohio App.3d 31, 2006-Ohio-4913. Judgment reversed.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., concurs in judgment only.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-857.pdf
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(March 6, 2008) The Supreme Court of Ohio ruled today that a judge who had personal and subject matter jurisdiction over a case, but who incorrectly proceeded to conduct a hearing and issue a final order despite notice that a party had applied to remove the case to federal court, committed reversible error but did not void his personal immunity from civil liability by acting “in the absence of all jurisdiction.”
The Court’s 7-0 per curiam decision reversed a ruling by the 6th District Court of Appeals.
Judge Charles D. Abood scheduled an evidentiary hearing for May 13, 2004 in a civil case seeking the eviction of A.J. Borkowski from a property. Shortly before the scheduled hearing, Borkowski filed a petition in U.S. District Court asking that the case be removed to federal jurisdiction, and filed a notice of that petition with the common pleas court. When the parties appeared for the scheduled hearing, Judge Abood proceeded with the hearing despite Borkowski’s assertion that the notice of removal divested the trial court of jurisdiction. Judge Abood determined that Borkowski could be evicted and entered judgment accordingly. Several days later, the federal court declined jurisdiction and remanded the matter to the trial court.
Borkowski appealed his eviction. The 6th District Court of Appeals found that the notice of removal had divested the trial court of jurisdiction over the eviction action from the time the removal notice was filed with the trial court until the federal court remanded the action. As a result, the appellate court held that the trial court’s judgment of eviction was void.
Borkowski subsequently filed a civil lawsuit alleging that Judge Abood had violated Borkowski’s rights under the state and federal constitutions by issuing a judgment in the eviction case when he had no jurisdiction to do so, and seeking a personal judgment against Judge Abood for $1 million in damages. Judge Abood filed a motion to dismiss the claim, asserting that even if Borkowski’s allegations were true, Ohio judges are immune from personal liability for all judicial acts other than an act undertaken “in the complete absence of all jurisdiction.” The trial court held that Judge Abood was immune and dismissed the complaint. On review, however, the 6th District Court of Appeals reversed and reinstated Borkowski’s claim, ruling that because Judge Abood had notice of the pendency of a petition for removal to federal court, his judgment and eviction order were undertaken “without any jurisdiction,” and therefore were not protected by judicial immunity.
Judge Abood sought and was granted Supreme Court review of the 6th District’s ruling. In today’s decision, the justices rejected the court of appeals’ legal analysis and reversed its judgment.
“Without question, Judge Abood possessed personal and subject-matter jurisdiction of Borkowski’s eviction proceedings when the complaint was filed. … It is also clear that the trial court’s jurisdiction of the eviction proceedings revived upon remand by the federal court,” the Court wrote. “Nonetheless, Judge Abood temporarily lost jurisdiction over Borkowski’s proceeding in the interval between the filing of the notice of removal and the remand by the federal court. Thus, Judge Abood’s continuation of the eviction proceeding during that period took place in the ‘absence of jurisdiction as to a part of the proceedings.’ As a result, we cannot say that Judge Abood acted in absence of all jurisdiction with respect to this matter. Rather, we conclude that Judge Abood acted only in excess of jurisdiction.”
Based on that analysis, the opinion concluded that: “Although Judge Abood’s conduct was in error, it was not such an error that will abrogate Judge Abood’s immunity from civil liability. … The trial court judgment resulting from Judge Abood’s decision to hold the eviction hearing subsequent to the filing of the removal notice, and before the federal court’s remand, was determined on appeal to be reversible error. However, Judge Abood had an obligation to make a preliminary determination whether he had jurisdiction to hold the hearing in the eviction proceeding. Even though his decision was erroneous, he acted in his official judicial capacity and his immunity remained intact. Based on the foregoing, the judgment of the court of appeals is hereby reversed.”
The Court’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Justice Paul E. Pfeifer concurred in judgment only.Contacts
Kimberly Vanover Riley, 513.241.472, for Judge Charles Abood.
A.J. Borkowski Jr., pro se: 419.237.7017.