2021 Ohio 1127
Ohio Ct. App.2021Background
- On Sept. 28, 2020, relator John Becker filed a private-citizen affidavit in Clermont County Municipal Court accusing Ohio Gov. Mike DeWine of multiple felonies and misdemeanors for COVID-19 actions.
- Because felonies were alleged, the clerk referred the affidavit to Clermont County Prosecutor D. Vincent Faris under R.C. 2935.10(A).
- Prosecutor Faris reviewed the affidavit and relevant statutes and, within hours, returned the paperwork stating no basis to file a complaint; no investigatory records were produced.
- Becker sought public records, received the affidavit and related emails, then filed a mandamus petition asking the court to compel Faris to conduct a “formal/systematic” investigation.
- Both parties filed cross-motions for summary judgment; the court concluded Faris had performed the statutorily required investigation, denied Becker’s mandamus relief, and granted Faris summary judgment.
- The court granted Faris’s request for a hearing on whether Becker’s petition was frivolous and subject to sanctions under Civ.R. 11 and R.C. 2323.51.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Faris fail to perform the R.C. 2935.10(A) "investigation" required after referral? | Becker: Faris’s review was only ~5 hours and produced no investigatory records, so it was not an "actual/meaningful" investigation. | Faris: He reviewed the affidavit and applicable statutes and reasonably concluded there was no probable cause; many allegations were facially inapplicable or too vague. | Court: "Investigation" has no fixed duration or record-creation requirement; Faris’s review satisfied R.C. 2935.10(A) under these facts. |
| Is Becker entitled to mandamus compelling a more formal/systematic investigation or prosecution? | Becker: Mandamus is warranted to compel a fuller, formal investigation and charging decision. | Faris: Prosecutorial charging decisions are discretionary; no abuse of discretion shown. | Court: Mandamus denied; Becker failed to show a clear legal right or that Faris had a legal duty to pursue further action. |
| Did Faris abuse prosecutorial discretion by declining prosecution? | Becker: Declining to arrest/prosecute DeWine was unreasonable given the allegations. | Faris: Prosecutors have wide discretion and may decline to prosecute where probable cause or viable claims are lacking. | Court: No abuse of discretion; refusal to prosecute based on lack of probable cause and merit is permissible. |
| Should sanctions be imposed for frivolous litigation? | Faris: Becker’s petition was frivolous and intended for political grandstanding; fees/sanctions appropriate. | Becker: (Implicit) the filing was procedurally proper and nonfrivolous. | Court: Granted a hearing on sanctions under Civ.R. 11 and R.C. 2323.51 to determine frivolous conduct and potential award. |
Key Cases Cited
- State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370 (Ohio 2006) (R.C. 2935.09 does not mandate prosecution of every affidavit allegation)
- State ex rel. Evans v. Columbus Dept. of Law, 83 Ohio St.3d 174 (Ohio 1998) (defining "reviewing official" and scope of private-citizen affidavits)
- State ex rel. Bunting v. Styer, 147 Ohio St.3d 462 (Ohio 2016) (prosecutors have broad discretion in whether to prosecute)
- State ex rel. Manley v. Walsh, 142 Ohio St.3d 384 (Ohio 2014) (mandamus is an extraordinary remedy to be granted cautiously)
- State ex rel. Gen. Motors Corp. v. Indus. Comm., 117 Ohio St.3d 480 (Ohio 2008) (mandamus compels a public officer to perform a clear legal duty)
- State v. LaMar, 95 Ohio St.3d 181 (Ohio 2002) (prosecutorial charging decisions are generally discretionary)
- State ex rel. Master v. Cleveland, 75 Ohio St.3d 23 (Ohio 1996) (reiterating prosecutorial discretion over charging decisions)