OH2: Validity of judge’s appointment can’t be challenged by attacking search warrant

The alleged defective appointment of a judge to replace one who died cannot be attacked in a criminal proceeding challenging a search warrant the judge issued. The general rule is that the legality of the judge’s appointment must be tested in quo warranto and not by collateral attack in a criminal proceeding. State v. Hill, 2012 Ohio 5210, 2012 Ohio App. LEXIS 4556 (2d Dist. November 9, 2012):

[*P21] Defendant relies on State v. Williams, which held that a warrant is void ab initio if not signed by a judge prior to the search. In Williams, the warrant bore no signature at all. In the present case, the warrant bore the signature of a person purporting to be a judge. The warrant did not suffer from the facial defect in Williams, which rendered the warrant void and therefore precluded application of the “good faith” exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See State v. Spaw, 18 Ohio App.3d 77, 480 N.E.2d 1138 (1984).

[*P22] The power and authority of a judicial officer and the validity of her office cannot be collaterally attacked in a criminal proceeding. Those challenges must instead be made in an original action in quo warranto to determine whether the judge had a valid title to her office, in which proceeding the judge herself would be made a party defendant and have an opportunity to appear and make a defense thereto. Stiess v. State, 103 Ohio St. 33, 41 (1921). That challenge is not reviewable on appeal from an adverse judgment rendered in the criminal proceeding. State ex rel. Stowell v. Lovinger, 6 Ohio St.3d 21, 450 N.E.2d 1176 (1983).