Complaint to Ohio Supreme Court Sept. 2007

link to chronology of court proceedings

Ohio Mother asks Supreme Court to make local court let her get evidence on record.



IN THE SUPREME COURT OF OHIO
MARIE CHRISTINE MACFARLANE,
xx address xx
Westlake, OH 44145

Relator,

vs.


MAGISTRATE JAMES R. [Name omitted for internet copy],
Cuyahoga County Common Pleas Court, Domestic Relations Division
1 Lakeside Avenue, Room 26
Cleveland, Ohio 44113, and

COURT OF COMMON PLEAS, CUYAHOGA COUNTY, DOMESTIC DIVISION,
1200 Ontario Street
Cleveland, Ohio 44113,

Respondents.

Case No.: 2007-1699
[(webpage note) docketed 9/12/07]

Complaint For

Peremptory Writ Of Prohibition,

Peremptory Writ Of Mandamus,


The Parties & Jurisdiction


1. The averments in this complaint are verified by Exhibits 1 and 2, the relator's affidavid in support of this complaint and poverty affidavit.

2. To facilitate expeditious responses by the respondents, relator is mailing via US Postal Service to the respondent copies of relator's complaint and supporting papers on the same date as the filing with the Court of those papers.

3. The Honorable Magistrate James [last name omitted on webpage] is named as a respondent in this Complaint. Respondent [last name omitted on webpage] is a magistrate of the Cuyahoga County Court of Common Pleas, Domestic Division, presiding over various matters of interest to relator and the general public. The Domestic Relations Court of Common Please of Cuyahoga County is also named as a respondent.

4. Relator Marie Macfarlane is an Ohio resident and mother of four children born to she and William N. Macfarlane.

5. This Court has original jurisdiction over this action pursuant to Article IV, Section 2(B)(1) of the Constitution of the State of Ohio (prohibition and mandamus).

Background

6. In December, 1990, relator, Marie Macfarlane was married to William Macfarlane. In 2003 William separated himself from the marital home and requested a divorce that was granted with a decree from Cuyahoga County Domestic Relations court in July 2005. Four minor children, presently ranging in age from six to fifteen, were placed under the custody of William by the civil court and the divorce decree ordered William to submit a motion for child support in January of 2007.

7. Prior to the child support hearing, Marie provided copies of her exhibits to plaintiff's attorney, on April 30, 2007, attached as Exhibits 3.

8. Plaintiff's attorney submitted motion in limine on June 26th, 2007 in which he moved the court to for an order prohibiting Marie from offering any testimony, presenting any exhibits, or examining plaintiff regarding any event that occurred prior to the Court's granting of the judgment of a legal separation or regarding Plaintiff's religious beliefs, attached as Exhibits 4.

9. Marie submitted an answer to plaintiff's motion in in limine on June, 28, 2007, attached as Exhibits 5.

Magistrate [last name omitted on webpage]'s Prohibition of Exhibits and Questions in Courtroom Proceeding

10. During the child support hearing on July 9th, Magistrate [last name omitted on webpage] granted the plaintiff's motion in limine because of the "separation of church and state." Magistrate's written decision, Exhibits 6, states:
This court is constitutionally forbidden from evaluating the religious convictions of either party. Moreover, it is settled law that for this court's decision to be motivated by a conviction that either party's religious belief is in the best interest of the children would implicate the First Amendment of the United States Constitution and the Religious Freedom Provision of the Ohio Constitution. deLevie vs. deLevie (1993), 86 OHIO APP.3D 531.


Relator's Interest In Further Questioning William

11. The relator is interested in questioning the plaintiff to establish whether he voluntarily assents to being a member of a particular church and voluntarily subjects himself to the church rules.

12. The relator is interested in establishing whether the plaintiff obligates himself to be subjected to a particular church's rules and decision regarding he and the relator's obligations toward each other and their children.

13. The relator is interested in establishing whether the obligations toward children and obligations of mother and father towards each other are included in the church's rules to which the plaintiff voluntarily adheres.

Count 1: Prohibition

14. When civil courts become entangled in matters of religious rules, doctrine, policy, or doctrine, the civil courts cannot substitute its interpretation of church law for that of an appropriate ecclesiastical tribunal, but the civil courts can determine the type of polity of a religious organization. The court can determine whether the church, to which parties to a dispute voluntarily adhere, is a connectional or hierarchical church, and whether a hierarchical church is a prelatical form in which the governing power resides in the prelates or bishops and higher clergy.

15. With regard to the determination of polity, a church manual or handbook issued by the denomination is evidence to show its type of ecclesiastical polity. Jandron v Zuendel (DC Ohio) 139 F Supp 887, 110 USPQ 537 (Christian Science Church) Ohio Southeast Conference of Evangelical United Brethren Church v. Krugerr, 17 O Misc 8, 46 O Ops 2d 10, 243 NE2nd 781.

16. Magistrate [last name omitted on webpage] has reserved to himself the authority to prohibit particular exhibits and questions based on a constitutional interpretation which he and plaintiff's attorney name "separation of church and state." Civil courts have weighed in regarding the relationship between church and state. The US Supreme Court wrote "The First Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization. Jones v. Wolf, 443 US 595, 1979, 61 L Ed 775, 99 S Ct 3020.

17. A civil court cannot substitute its interpretation of church law for that of an appropriate ecclesiastical tribunal. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 US 696, 49 L Ed 2d 151.

18. In July of 1977, the Supreme Court of Ohio wrote that parties couldn't deny that they have subjected themselves to church rules if they are a member of the church, and that civil courts have to accept church tribunal's decisions. This decision was citing an earlier decision of the US Supreme Court, "A party having voluntarily assented to becoming a member of the local church thereby subjects himself to their existing rules and procedures of said church and cannot deny their existence." State ex re. Morrow v. Hill, 364 N.E.2d 1156, 51 Ohio St. 2d 74, 5 O.O.3d 45.

19. As a general rule, in a civil court action, where a right is dependent upon a question of doctrine, discipline, ecclesiastical law, rule, custom, or church government which has been decided by the proper tribunal within the organization, the civil court will accept that decision as conclusive and be governed by it in its application to the cases before it. Harrison v Hoyle, 24 OS 254; Mannix v Purcell, 46 OS 102, 19 NE 572.

20. The Common Pleas Court of Fairfield County, Ohio wrote, "The court will only inquire as to what are the rules and decisions of the church and its tribunals, and what parties or factions adhere to them, without questioning their wisdom or propriety, although it may consider whether the action is in fact 'church' action, that is, whether the church body or officer acted within the scope of his authority. Ohio Southeast Conference of Evangelical United Brethren Church v. Kruger, 17 O Misc. 8, 46 O Ops 2d 10, 243 NE2d 781.

21. When the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it, a court, in the first instance, may allow a peremptory mandamus. ORC 2731.06

22. By preventing Marie from offering any testimony, presenting any exhibits, or examining plaintiff regarding Plaintiff's religious beliefs or regarding any event that occurred prior to the Court's granting of the judgment of a legal separation, Magistrate [last name omitted on webpage] has exercised judicial power unauthorized by law. As of the date of the filing of this complaint, Domestic Relations Judge Cheryl S. Karner has not yet made the magistrate's decision her judgment entry. The child support case is not yet completed with a journalized, signed, judgment entry. The Domestic relations court is headed toward defeating Marie's right to introduce exhibits and question the plaintiff, William, to determine if he voluntarily subjects himself to adhere to particular ecclesiastic rules regarding he and Marie's obligations toward each other and their children.

23. To take the ordinary course by appeal would of itself subject the relator and her children to irreparable loss and further moral and financial harm, as the children are deprived of the labor which mother needs to provide in the nurturing of her children as recognized by the Ohio legislators (ORC 3103.03).
Thus it was held that notwithstanding the right to an appeal, if the situation disclosed be such that to take the ordinary course by appeal would of itself subject the complainant to irreparable loss, the writ should issue notwithstanding no objection was made below; that the matter of judicial courtesy should yield to substantial personal rights of litigants, such as a sacrifice of their liberty. (See "Extraordinary Legal Remedies" by Forrest G. Ferris, 1926 edition. See also Hargis v Parker 27 Kentucky L.Rep 441, 85 s.w. 704,69 L.R.A. 270.)


24. The relator has no plain and adequate remedy in the ordinary course of law except to seek a writ of prohibition.

Count 2: Mandamus To Compel Respondent Court To Allow Questioning Witness and
Inclusion of Exhibits forbidden during July 9th Hearing

25. Relator incorporates by reference all of the previous averments in this complaint.

26. The relator has no plain and adequate remedy in the ordinary course of law except to seek a writ of mandamus.

Prayer for Relief

WHEREFORE, Relator Marie Christine Macfarlane prays that this Court immediately issue the following relief:

(a) A peremptory writ of prohibition barring respondents from excluding her testimony, presenting her exhibits or examining the Plaintiff regarding the Plaintiff's religious beliefs or any events that occurred prior to the Court's granting of the judgment of a legal separation or divorce; and barring same exclusions in any future domestic relations hearings between she and the Plaintiff;

and

(b) A peremptory writ of mandamus compelling respondents to conduct a continued evidentiary hearing regarding the child support motion, which shall include aforementioned exhibits and questioning;

and

(c) Such other and further relief as appears to the Court to be appropriate.




______________________________
Marie Christine Macfarlane pro-se
xxx address xxx
Westlake, Ohio 44145
(440) xxx-phone
bai.mafarlane@[ommitted for internet]

pro-se

STATE OF OHIO CUYAHOGA COUNTY
AFFIDAVIT

Marie C. Macfarlane, being first duly sworn, deposes and states:

1. I am the Relator herin. I reside at [xxx address ommited for internet], Westlake, OH.

2. I support the attached complaint for Writ Of Prohibition, Peremptory Writ Of Mandamus.

3. During our July 9th, 2007 hearing to modify child support, (Mot # 237306, case no.: DR 03 294327) Magistrate James R. [last name omitted on webpage] prohibited me from entering into record exhibits, testimony and questions intended to establish whether:
a. the Plaintiff and I voluntarily assent to being members of a particular church and voluntarily subject ourselves to the church rules;

b. the Plaintiff and I obligate ourselves to be subjected to a particular church's rules and decision regarding Plaintiff's and my obligations toward each other and our children.

c. the obligations toward our children and the obligations of the plaintiff and mine towards each other are part of the church rules to which the plaintiff and I voluntarily adhere.
4. Magistrate James [last name omitted on webpage] stated in the July 9th hearing that he prohibited me from entering my exhibits, making my testimony or asking questions because of what he named the "separation of church and state."

FURTHER AFFIANT SAYETH NAUGHT.



_________________________________

Marie C. Macfarlane



Sworn to before me and subscribed in my presence this ____ day of September 2007



PROOF OF SERVICE

Besides the verified original complaint and the there copies hereto attached, a copy of this petition has been provided via US Mail, return receipt, to Respondents Magistrate James R. [last name omitted on webpage], Cuyahoga County Common Pleas Court, Domestic Relations Division, 1 Lakeside Avenue, Room 26, and to The Court of Common Please, Cuyahoga County, Domestic Relations Division, 1200 Ontario Street, Cleveland, Ohio 44113 on this ___ day of September 2007.



____________________________

Marie Christine. (Bai) Macfarlane


Copyright Mary's Advocates