Robert L. Hillman v. Maryellen O‘Shaughnessy, Franklin County Clerk of Courts
No. 16AP-571
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
February 9, 2017
[Cite as Hillman v. O‘Shaughnessy, 2017-Ohio-489.]
(C.P.C. No. 16MS-365) (ACCELERATED CALENDAR)
Rendered on February 9, 2017
On brief: Robert L. Hillman, pro se.
APPEAL from the Franklin County Court of Common Pleas
PER CURIAM.
{1} Plaintiff-appellant, Robert L. Hillman, appeals from a judgment of the Franklin County Court of Common Pleas addressing his affidavit filed pursuant to
I. Factual and Procedural Background
{2} On July 8, 2016, Hillman, an inmate at the Chillicothe Correctional Institution, filed an affidavit pursuant to
{3} Hillman timely appeals.
II. Assignments of Error
{4} Hillman assigns the following errors for our review:
[1.] The trial court judge сommitted an act of fraud, and plain and prejudicial error when it denied appellant procedural due process, and ruled upon a lack of probable cause contained in his affidavit prior to submitting the affidavit to the prosecuting attorney for investigation in аccordance with
R.C. 2935.09 andR.C. 2935.10 eliminating the prosecutors function.[2.] The trial court denied the appellant due process and equal protection of law under the 1st, 5th and 14th Amendments to the United States Constitutions when the trial courts ruling/conclusions were contrary to its findings written in its opinion.
III. Discussion
{5} Because they involve related issues, wе address Hillman‘s first and second assignments of error together. In his first assignment of error, Hillman asserts the trial court‘s disposition of his accusation by affidavit did not comply with
{6} Pursuant to
Upon thе filing of an affidavit or complaint as provided by section
2935.09 of the Revised Code, if it charges the commission of a felony, such judge, clerk, or magistrate, unless he has reason to believe that it was not filed in good faith, or the claim is not meritorious, shall forthwith issue a warrant for the arrеst of the person charged in the affidavit, and directed to a peace officer; otherwise he shall forthwith refer the matter to the prosecuting attorney or other attorney charged by law with prosecution for investigation prior to the issuance of warrant.
{7} We review a judge‘s decision not to issue a warrant based on an accusation by affidavit filed pursuant to
{8} Here, the judge who reviewed Hillman‘s July 8, 2016 affidavit concluded that the affidavit lacks a meritorious claim. Thus, he did not issue a warrant and referred the matter to the county prosecutor for investigation. Hillman argues that the trial court erred because his affidavit established probable сause to believe the Clerk of Courts engaged in felonious conduct, and that, even if it did not establish probable cause, the trial court judge should have held a probable cause hearing to gather information prior to deciding not to issue a warrant. Hillman‘s arguments are unpеrsuasive.
{9} According to Hillman, he was denied due process because he was not granted a hearing. Under
{10} Additionally, we find that the trial court did not abuse its discretion in finding that Hillman‘s July 8, 2016 affidavit lacks a meritorious claim. Thаt affidavit alleged the Clerk of Courts, in an attempt to hinder Hillman‘s access to justice, violated multiple criminal statutes by intentionally “misfiling” as a сivil case his affidavit regarding police officer perjury. Specifically, Hillman alleged the Clerk of Courts committed the following felonious acts: attempted to intimidate him in a criminal case, in violation of
{11} Hillman suggests that the Clerk of Courts conspirеd to protect the police officer from Hillman‘s perjury accusations by “misfiling” his accusation by affidavit as a civil case and not аs a miscellaneous or criminal case. He asserts that the misfiling resulted in court fees being improperly assessed against him. However, a “clerk of courts is a ministerial officer, one who performs a fixed and designated function that involves no exercise of discretion.” State v. Wilson, 102 Ohio App.3d 467, 471 (2d Dist.1995); Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, ¶ 34 (“A clerk of courts has no discretion.“). He or she functions as an arm of the court, performing such duties as retaining custody of the court‘s records, filing the court‘s papers, and collecting costs. Wilson; Lingo; State ex rel. McKean v. Graves, 91 Ohio St. 23, 24 (1914). “The clerk is not a judicial officer, and cannot perform judicial duties or act in exercise of the judicial power.” Wilson at 472. Thus, while a clerk may collect costs, only a court may assess costs. Lingo.
{12} Furthermore, neither
{13} The trial court did not abuse its discretion deciding to refer the matter to a prosecutor for investigation instead of issuing a warrant based on Hillman‘s аccusation by affidavit. Therefore, we overrule Hillman‘s first and second assignments of error.
IV. Disposition
{14} Having overruled Hillman‘s first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, LUPER SCHUSTER, and BRUNNER, JJ.