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APPEAL Court rules against Judge Maloney



Published: Thu, April 21, 2005 @ 12:00 a.m.



The probate judge appointed a lawyer to appeal to the Supreme Court.

YOUNGSTOWN -- The 7th District Court of Appeals has stopped an attempt by Judge Timothy P. Maloney of Mahoning County Probate Court to inject himself into appellate cases where he is not a party.

Lawyers for Florence Marsteller, the executrix of the estate of her late husband, James, filed an action seeking a writ of prohibition against Judge Maloney in the appellate court. The judge filed a response asking the writ request be dismissed.

The purpose of the writ is to restrain lower courts from exceeding their jurisdiction. The appellate court overruled Judge Maloney's motion to dismiss and granted the writ.

The appellate court earlier had ruled against Judge Maloney's decision to reduce lawyers' fees and expenses for a law firm's work in getting partial settlements on wrongful death claims in the Marsteller estate. The firm appealed Judge Maloney's decision, and the appellate court ruled for the law firm.

Order issued

Judge Maloney, however, issued an order appointing counsel, for $125 an hour, for the Marsteller estate to appeal the 7th District court's ruling to the Ohio Supreme Court.

Judge Maloney asserted in his motion to dismiss the writ that certain sections of state law give the probate court power to direct and control Marsteller because the court is responsible for overseeing that she "preserves the assets of the estate."

Since Marsteller did not appeal the 7th District court's ruling, Judge Maloney determined he could appoint another lawyer to appeal because it was in the best interest of the estate.

The appellate court, however, said that "forcing unwanted counsel, an unwanted appeal, and unwanted legal fees on a widow/executrix/sole beneficiary is not a matter directly pertaining to the administration of the estate."

The appellate court also said Judge Maloney was attempting to create derivative powers from those given to the probate court by state law.

The appellate judges -- Gene Donofrio, Cheryl L. Waite and Joseph Donofrio -- also ruled the matter of appointing a lawyer to appeal was not properly before the probate court. Once the appellate court made its decision, the case was over unless one of the parties to that decision chose to pursue further appeals.

'Over the line'

"[Judge Maloney] has stepped over the line between detached, neutral judge and interested party," the judges wrote. "Because he disagrees with this court's Marsteller decision, he has decided that the probate court has the jurisdiction to appeal a decision of a superior court. He has taken it upon himself to determine what he believes is in the best interest of the estate. That is the job of an interested party, not a court."

The appellate judges added that by Judge Maloney's forcing the Marsteller estate to appeal to the Supreme Court, and ordering the estate to pay a portion of the fees and expenses with the appeal, "the estate could easily lose even more money," which would not be in the estate's best interest.

In a separate opinion, Judge Vukovich wrote that this is not the first time the appellate court has been faced with the probate court's attempts to "inject itself into the appellate cases where he [Judge Maloney] is not a party."

Judge Vukovich wrote that Judge Maloney certainly can disagree with a decision made by the appellate court. He added, however, "Unless the court is a named party, that disagreement does not translate into a right to appeal that decision."




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