State ex rel. Brown v. Nusbaum (Slip Opinion)
152 Ohio St. 3d 284
| Ohio | 2017Background
- In Sept. 2014 Steven S. Brown filed an affidavit under R.C. 2935.09 in Ross County Common Pleas Court seeking criminal warrants against various state employees and contractors.
- In Jan. 2015 Judge Scott W. Nusbaum entered an order referring Brown’s affidavit to the Ross County prosecuting attorney for investigation under R.C. 2935.10.
- The prosecutor declined to investigate or file charges. Brown asked the trial court to enter a final, appealable order so he could appeal that non-prosecution; the court denied the request and denied reconsideration.
- Brown then petitioned the Fourth District for a writ of mandamus compelling Judge Nusbaum to issue a final order; the court of appeals dismissed the petition under Civ.R. 12(B)(6).
- The Ohio Supreme Court denied Nusbaum’s motion to strike Brown’s merit brief and reviewed the dismissal de novo.
- The Supreme Court affirmed, holding that once a judge refers a citizen affidavit to a prosecutor under R.C. 2935.10, the judge’s duty under that statute is discharged and the judge has no obligation to enter a final, appealable order if the prosecutor declines to prosecute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judge had a clear legal duty to enter a final, appealable order after referring affidavit to prosecutor | Brown: Trial court must enter a final order so he can appeal the prosecutor’s decision not to prosecute | Nusbaum: After referral under R.C. 2935.10 the judge’s duty is extinguished; no duty to enter final order | Held: No clear legal duty; mandamus relief denied |
| Whether mandamus can compel review of prosecutor’s decision not to prosecute | Brown: Case law compels review when failure to prosecute is an abuse of discretion | Nusbaum: Those cases govern mandamus against prosecutors, not compel court action after referral | Held: Decision not to prosecute generally not subject to judicial review; mandamus against judge inappropriate |
| Whether trial court must conduct a probable-cause hearing after prosecutor declines to prosecute | Brown: Cited appellate cases where courts reviewed such actions | Nusbaum: No statutory duty to hold such a hearing after referral | Held: Appellate decisions do not create a statutory duty; Brown sought different relief (final order), not a probable-cause hearing |
| Procedural sufficiency of mandamus petition | Brown: Alleged right, duty, and lack of remedy | Nusbaum: Petition fails to show a clear legal duty by the judge | Held: Petition fails under Civ.R. 12(B)(6); dismissal affirmed |
Key Cases Cited
- State ex rel. Bunting v. Styer, 147 Ohio St.3d 462 (2016) (interpreting interplay of R.C. 2935.09 and 2935.10)
- State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370 (2006) (judge may issue warrant or refer affidavit to prosecutor)
- State ex rel. Master v. Cleveland, 75 Ohio St.3d 23 (1996) (prosecutor’s decision not to prosecute is generally not subject to judicial review)
- State ex rel. Squire v. Taft, 69 Ohio St.3d 365 (1994) (mandamus to compel prosecution limited by abuse-of-discretion standard)
- State ex rel. Murr v. Meyer, 34 Ohio St.3d 46 (1987) (mandamus against prosecutor governed by abuse-of-discretion review)
- State ex rel. Reynolds v. Basinger, 99 Ohio St.3d 303 (2003) (mandamus lies when a trial court refuses or unduly delays rendering judgment)
- State ex rel. Love v. O'Donnell, 150 Ohio St.3d 378 (2017) (elements plaintiff must prove to obtain mandamus)