State ex rel. Burkons v. Beachwood (Slip Opinion), 2022 Ohio 748

Background

Burkons, a Beachwood city-council member, was charged in municipal court with interfering with civil rights; the Beachwood city prosecutor sought to withdraw due to a conflict and asked the court to appoint University Heights prosecutor Stephanie Scalise as special prosecutor.
The municipal judge granted the motion and transferred the case to Chardon Municipal Court; Burkons challenged venue and later obtained a writ of prohibition from the Eleventh District halting the prosecution.
Burkons served written demands on Beachwood officials to terminate Scalise’s ‘‘unauthorized representation’’ of the city, alleging the city council had not adopted an ordinance appointing her.
He then filed a mandamus complaint in the Eighth District seeking to compel the city to terminate Scalise; the city moved to dismiss, arguing the appointment was made by the municipal court and the city could not override it.
The Eighth District dismissed the mandamus action as improper because an adequate remedy existed; this Court affirmed but on the ground that the case was moot because the underlying prosecution had been halted, so removing Scalise would be a vain act.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether mandamus lies to compel the city to terminate Scalise	Burkons: mandamus (including as a taxpayer action) was proper to remove an unauthorized special prosecutor	City: appointment made by municipal court; the city lacks authority to override court appointment; adequate legal remedies exist	Mandamus would be vain/moot here; relief would not affect a halted prosecution, so dismissal affirmed
Whether Burkons lacked an adequate remedy in the ordinary course of law	Burkons: could proceed via taxpayer action under R.C. 733.59 or other extraordinary relief	City: Burkons could challenge appointment in the criminal proceedings or on appeal from any conviction	Court did not need to decide taxpayer-action issue; prior appellate court had cited adequacy of remedy, but Supreme Court affirmed on mootness grounds
Whether the claim is moot (a vain act)	Burkons: no court has declared Scalise’s appointment void; future prosecutions by Scalise are possible	City: the criminal case was halted by prohibition; ordering removal from a non-existent prosecution is futile	Held moot: a mandamus ordering removal from a nonexistent prosecution would be a vain act, so suit fails
Whether the "capable of repetition, yet evading review" exception saves the claim	Burkons: prosecution could recur, so the issue is not moot	City: exception inapplicable—future prosecutions would permit review and Scalise’s appointment was limited to the halted matter	Held inapplicable: relator cannot show the action is too short to litigate nor a reasonable expectation of identical future action

Key Cases Cited

State ex rel. Love v. O'Donnell, 81 N.E.3d 1250 (Ohio 2017) (elements for mandamus relief)
State ex rel. McKinney v. Schmenk, 92 N.E.3d 871 (Ohio 2017) (de novo review of Civ.R. 12(B)(6) dismissals)
State ex rel. Thomas v. Ghee, 690 N.E.2d 6 (Ohio 1998) (mandamus will not compel a vain act)
State ex rel. Peoples v. O'Shaughnessy, 175 N.E.3d 524 (Ohio 2021) (example of mootness where relief would be futile)
State ex rel. Snider v. Stapleton, 600 N.E.2d 240 (Ohio 1992) (mootness doctrine applied where event at issue had concluded)
State ex rel. Everhart v. McIntosh, 874 N.E.2d 516 (Ohio 2007) (courts consider facts at time of decision in extraordinary-writ cases)
State ex rel. Calvary v. Upper Arlington, 729 N.E.2d 1182 (Ohio 2000) (test for ‘‘capable of repetition, yet evading review’’)
State ex rel. Ames v. Summit Cty. Court of Common Pleas, 146 N.E.3d 573 (Ohio 2020) (exception inapplicable where review would be available)