State ex rel. Brown v. Nusbaum
2017 Ohio 797
| Ohio Ct. App. | 2017Background
- Relator Steven S. Brown filed an affidavit under R.C. 2935.09/2935.10 seeking arrests based on alleged crimes by ODOC employees, the Attorney General, and a contractor; the trial court referred the affidavit to the prosecutor for investigation.
- Brown later moved the trial court for a final order dismissing the R.C. 2935.10 proceeding to enable an appeal; he contends the court denied that request at a September 2016 hearing.
- Brown alleges the prosecutor’s handling of his materials amounted to an inadequate investigation and seeks a writ of mandamus compelling Judge Nusbaum to issue a final, appealable order.
- Judge Nusbaum moved to dismiss, arguing he fulfilled statutory duties by referring the matter to the prosecutor and has no duty to enter a final dismissal order; alternative remedies against the prosecutor exist.
- The appellate court reviewed whether R.C. 2935.10 or court rules require the trial judge to enter a final order or to review the prosecutor’s decision, and whether mandamus is appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had a duty to issue a final, appealable dismissal order in an R.C. 2935.10 proceeding | Brown: court rules (Crim.R.3, Civ.R.58) and request at hearing required the judge to journalize a final order so Brown could appeal | Nusbaum: R.C. 2935.10 governs; court satisfied its duty by referring matter to prosecutor and has no obligation to enter a final dismissal | Held: No duty to issue a final dismissal order; referral to prosecutor fulfills court’s statutory duty |
| Whether criminal or civil rules (Crim.R./Civ.R.) apply to R.C. 2935.10 proceedings | Brown: those rules entitle him to journalization and probable-cause procedures | Nusbaum: R.C. 2935.10 controls; criminal/civil rules apply only after prosecutor files a complaint | Held: Crim.R. and Civ.R. do not apply to R.C. 2935.10; they impose no duty on the trial judge here |
| Whether the trial court must review the prosecutor’s decision not to prosecute (or hold a probable-cause hearing) | Brown: trial court must review prosecutor’s decision and appellate review is abuse-of-discretion; without final order he cannot appeal | Nusbaum: no statutory requirement for trial-court review or probable-cause hearing; prosecutor’s actions are not automatically reviewable absent abuse of discretion | Held: No statutory duty for the trial court to review or hold a probable-cause hearing; no duty to enter a final order based on such review |
| Whether mandamus is available to compel entry of a final order | Brown: mandamus appropriate to compel journalization so appeal can be taken | Nusbaum: alternative remedies exist; relator cannot show a clear legal duty for judge to act | Held: Mandamus denied; Brown failed to show respondent had a clear legal duty to issue the requested final order |
Key Cases Cited
- State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370, 839 N.E.2d 934 (Ohio 2006) (R.C. 2935.10 governs charging-affidavit proceedings, not the criminal rules)
- State ex rel. Bunting v. Styer, 147 Ohio St.3d 462, 67 N.E.3d 755 (Ohio 2016) (prosecutor may reasonably rely on law-enforcement investigations under R.C. 2935.10)
- State ex rel. Evans v. Columbus Dept. of Law, 83 Ohio St.3d 174, 699 N.E.2d 60 (Ohio 1998) (prosecutor will not be compelled to prosecute unless failure to do so is an abuse of discretion)
- State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 931 N.E.2d 110 (Ohio 2010) (mandamus/procedendo may compel a trial court to journalize a decision when it refuses or unduly delays)
- State ex rel. Cain v. Gee, 147 Ohio St.3d 477, 67 N.E.3d 768 (Ohio 2016) (relator must prove entitlement to mandamus by clear and convincing evidence)