Published: Tuesday, December 13, 2005
Judge Kobly will preside at sheriff's contempt hearing
The judge isn't responsible for getting documents to the jail, Judge Dellick said.
By DEBORA SHAULIS
YOUNGSTOWN Mahoning County Sheriff Randall Wellington's civil contempt hearing in Youngstown Municipal Court will proceed as scheduled Dec. 28, with municipal Judge Elizabeth A. Kobly on the bench.
Judge Theresa Dellick of the Juvenile Division of Mahoning County Common Pleas Court overruled a motion Monday by county Prosecutor Paul A. Gains to disqualify Judge Kobly from presiding at the hearing. Judge Dellick, who is presiding judge of common pleas court, makes rulings in cases such as these.
The matter dates back to Nov. 29, when Judge Kobly sentenced Ronald A. Tomlin, 19, of Hudson Avenue to seven days in the county jail after he was convicted of domestic violence. Judge Kobly's one-page, two-sided journal entry included a handwritten note on the back that read: "Sheriff not to release early."
Wellington says jail personnel received only the front side of Judge Kobly's journal entry. Without that notation, and with a federal mandate limiting jail population to 296, Tomlin was released Nov. 29 and would have been required to complete his sentence later.
Deputy sheriffs arrested Tomlin on Nov. 30, the same day Judge Kobly ordered Wellington to appear at a show-cause hearing and explain why he should not be found in contempt.
For Wellington to prove that his personnel did not receive Judge Kobly's "Do Not Release" order, a chain of custody must be established, and that makes Judge Kobly a witness, Gains wrote in his affidavit, which was filed Dec. 5. The judge cannot preside and be a witness without the appearance of bias or prejudice, Gains said.
"The transmission of the Order to the Sheriff's Department is a ministerial function not requiring the testimony of Judge Kobly," Judge Dellick wrote in her judgment entry.
Further, she wrote, though Gains contended that Judge Kobly has not conducted an investigation, Judge Kobly properly set the matter for a show-cause hearing to determine whether the sheriff should be held in contempt. Such hearings "are the primary method through which courts investigate," Judge Dellick wrote.
She also noted that Gains sought Judge Kobly's disqualification after he had filed a motion to dismiss the hearing in Judge Kobly's court, saying that the contempt charge was moot as soon as Wellington called for Tomlin's arrest. "If the Prosecutor perceived Judge Kobly qualified to hear the Motion to Dismiss, she should be presumed qualified to hear the Show Cause matter," Judge Dellick wrote.
Neither Judge Dellick's ruling nor Judge Kobly's refusal to dismiss the show-cause hearing can be appealed, Gains said Monday. Asked what his next course of action will be, Gains said, "I intend to issue subpoenas and be ready for the hearing."