¶1 dissenting. The majority decision is classically illustrative of why the federal courts have been compelled to intervene in state criminal proceedings to arrest constitutional abuse. A few more decisions like the instant one and federal pre-emption will one day, likely, be total.
¶2 The cash bond of $40,000 set by the trial court is not only excessive but manifestly prohibitive — actually, preposterous. Guarantees set forth in the federal and state Constitutions safeguarding individual rights demand a substantial reduction; due process calls out for vindication; and equal protection urges remedial action. But this court cannot hear. It is deaf.
¶3 The petitioner remains a prisoner in the custody of the sheriff under unlawful pre-trial detention for three reasons: one, she is poor; two, she is the subject of invidious discrimination; and, three, *16 this court, in its written opinion, evidences a shocking lack of understanding of the nature and scope of habeas corpus proceedings. Regrettably, it then proceeds to write bad law.
¶4 Petitioner came into this court holding, figuratively, the Constitution of the United States in her hands. She lay claim to inviolable rights. But the court could not see. It was blind. Nor can it go unnoticed, in a reading of the opinion, that for her efforts, petitioner was pilloried instead — stripped of her mantle of presumed innocence.
¶5 Much of what appears in the majority opinion has nothing to do with habeas corpus proceedings. Simply stated, habeas corpus is an original civil action, constitutionally authorized and instituted for the purpose of collaterally attacking unlawful confinement, imprisonment or restraint of the prisoner. When such restrictions of liberty are challenged, the guiding light of habeas corpus is “the law of the land” and not an inquiry into the quality of discretion exercised by the confining judge or party. Habeas corpus, again, is an original civil action and not a criminal appellate review. There is a difference — a big difference.
¶6 The majority herein, in effect, says: “But the Ohio Supreme Court has called habeas corpus an anomaly; and we think it is a paradox; therefore, we shall call it a hybrid.” One could readily conclude, therefrom, that habeas corpus described by Blackstone as “the great and efficacious writ,” shall henceforth be known, in this judicial district, as “an anomalous, paradoxical hybrid.” Really; Quo Vadis?
¶7 If it was the intention of the court to discourage the future filings of habeas corpus proceedings in pre-trial detention cases then, indeed, does the opinion of the majority blow a chilling wind. But history shows not an unwillingness on the part of the federal judiciary, in such instances, to allow for a deliberate bypass of the state forum and proceed to decide the question without benefit of local views. Such occurrences are not infrequent and when they do occur, federalism — perhaps not as we know it but rather as it might have been — inches its way closer to the grave. Today’s decision invites the continued sounding of its death knell. Invariably, too late, is the question asked: “Where did we go wrong?”
¶8 The prisoner, as I view and assess her background, is without prior criminal record irrespective of traffic charges. An unemployed mother of two small children, she has been a life-long resident of Toledo. Although owning a modest home which her mother purchased for her, she is poor and meets every test of indigency. The likelihood of her appearance at trial is substantial. I would release her upon the posting of a $4,000 bond, secured by her modest real estate, so that she can be at liberty to adequately prepare for trial.