STATE OF OHIO ex rel. JOHN BECKER v. D. VINCENT FARIS, PROSECUTING ATTORNEY, CLERMONT COUNTY, OHIO
CASE NO. CA2020-10-058
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
4/5/2021
2021-Ohio-1127
S. POWELL, J.
ORIGINAL ACTION IN MANDAMUS
Mark J. Tekulve, Clermont County Prosecuting Attorney, G. Ernie Ramos, Nicholas Horton, 101 E. Main Street, Batavia, Ohio 45103, for respondent
Dave Yost, Ohio Attorney General, Benjamin M. Flowers, 30 East Broad Street, 17th Floor, Columbus, Ohio 43215, urging denial of the writ for amicus curiae Ohio Attorney General Dave Yost
O P I N I O N
S. POWELL, J.
{¶ 1} This case involves a review of a petition for a writ of mandamus filed by relator, John Becker. Becker, acting in his personal capacity, filed his petition with this court on October 6, 2020.1 Respondent, D. Vincent Faris, the then Prosecuting Attorney for
{¶ 2} On November 24, 2020, the parties filed an agreed statement of facts. That same day, Becker filed a motion for summary judgment. Approximately two weeks later, on December 9, 2020, Prosecutor Faris filed a response in opposition to Becker‘s motion for summary judgment. Prosecutor Faris also filed his own motion for summary judgment. The next day, on December 10, 2020, Becker filed a response in opposition to Prosecutor Faris’ motion for summary judgment. Then, on December 17, 2020, Prosecutor Faris filed a reply to Becker‘s response in opposition to his motion for summary judgment.
{¶ 3} The matter now properly before this court, Becker seeks a writ of mandamus to compel Prosecutor Faris, in his role as the Prosecuting Attorney for Clermont County, Ohio, to “act in accordance with his clear legal duty” pursuant to
{¶ 4} For the reasons outlined below, Becker‘s motion for summary judgment is denied and Prosecutor Faris’ motion for summary judgment is granted. Therefore, finding merit in Prosecutor Faris’ motion for summary judgment, Becker‘s petition for a writ of mandamus is denied and Prosecutor Faris’ motion for a hearing to determine whether Becker‘s conduct in filing such a petition was frivolous given the nature of Becker‘s claims
Facts and Procedural History
{¶ 5} At 11:03 a.m. on September 28, 2020, Becker filed the aforementioned private citizen affidavit with the Clermont County Municipal Court. Becker filed his private citizen affidavit in accordance with
A private citizen having knowledge of the facts who seeks to cause an arrest or prosecution under this section may file an affidavit charging the offense committed with a reviewing official for the purpose of review to determine if a complaint should be filed by the prosecuting attorney or attorney charged by law with the prosecution of offenses in the court or before the magistrate.
{¶ 6} In his private citizen affidavit, Becker alleged Governor DeWine had committed the following seven felony and three misdemeanor offenses for his handling of the ongoing COVID-19 pandemic throughout the state of Ohio, but more specifically, within Clermont County, on or about March 16, 2020 through the present:
- Engaging in a pattern of corrupt activity in violation of
R.C. 2923.31(A)(1) , a second-degree felony; - Complicity in violation of
R.C. 2923.03(A)(1) , a second degree felony;3 - Terrorism in violation of
R.C. 2909.24(A)(1) , a second degree felony; - Making a terroristic threat in violation of
R.C. 2909.23(A)(1)(a) , a third-degree felony; - Inducing panic in violation of
R.C. 2917.31(A)(3) , a third degree felony; - Conspiracy in violation of
R.C. 2923.01(A)(1) , a third-degree felony; - Bribery in violation of
R.C. 3599.01(A)(2) , a fourth-degree felony;
Interfering with civil rights in violation of R.C. 2921.45(A) , a first-degree misdemeanor;- Coercion in violation of
R.C. 2905.12(A)(5) , a second-degree misdemeanor; and - Patient abuse or neglect in violation of
R.C. 2903.34(A)(3) , a second-degree misdemeanor.
{¶ 7} After Becker filed his private citizen affidavit, the Clerk of the Clermont County Municipal Court, Tim Rudd, referred the matter to Prosecutor Faris for review. Because Becker‘s private citizen affidavit charged the commission of a felony, this referral was made pursuant to
Upon the 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 arrest 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.
{¶ 8} Later that afternoon, at 3:44 p.m., Prosecutor Faris sent an e-mail to Clerk Rudd that stated the following:
You had previously sent for my review of a Private Citizen‘s Affidavit, that is file stamped September 28, 2020. That affidavit has been signed by John Becker. This affidavit alleged a number of criminal violations against Governor R. Michael DeWine.
I have reviewed the paperwork and do not find a basis for the filing of a complaint pursuant to this Private Citizen‘s Affidavit.
I am returning the paperwork that you had previously forwarded to me.
{¶ 9} Two days later, on September 30, 2020 at 10:15 a.m., counsel for Becker, Attorney Nicholas R. Owens, submitted a public records request to Prosecutor Faris. In that request, Attorney Owens requested a copy of all records relating to the private citizen
{¶ 10} Approximately three hours later, at 1:26 p.m., G. Ernie Ramos, Jr., Chief Assistant Prosecuting Attorney for the Civil Division of the Clermont County Prosecutor‘s Office, responded via e-mail to Attorney Owens’ public records request. In that response, Assistant Prosecutor Ramos attached the following four documents:
- The private citizen affidavit filed by Becker on September 28, 2020;
- A letter from Becker to Clerk Rudd dated September 28, 2020 asking Clerk Rudd to “officially file” his affidavit on the municipal court‘s docket and “immediately” forward it to the “Administrative Judge of the Clermont County Municipal Court for its prompt review;”
- The September 28, 2020 e-mail from Prosecutor Faris to Clerk Rudd referenced above noting that Prosecutor Faris had not found a basis for the filing a complaint against Governor DeWine based on the allegations contained in Becker‘s affidavit; and
- An e-mail from Prosecutor Faris to the Clermont Sun sent on September 29, 2020.4
{¶ 11} Twenty minutes later, at 1:46 p.m., Attorney Owens responded to Assistant Prosecutor Ramos’ e-mail with two “follow-up” questions. Those two follow-up questions were as follows:
Does Prosecuting Attorney Faris and/or his office consider my client‘s filed private citizen affidavit against Governor DeWine a closed matter?
Secondly, can you confirm that the Clermont County Prosecuting Attorney‘s Office did not create and/or produce any investigatory records as a result of my client‘s filed private citizen affidavit?
{¶ 12} The next morning, on October 30, 2020 at 10:40 a.m., Assistant Prosecutor
This is the response to your September 30, 2020 at 1:46 P.M. email requesting information. The investigation included a thorough examination of the allegations in the affidavit Mr. Becker filed and the relative criminal statutes however there are not records that are responsive to a public records request.
{¶ 13} On October 6, 2020, Becker filed the petition for a writ of mandamus that is the subject of this action. As noted above, in his petition, Becker seeks a writ of mandamus to compel Prosecutor Faris, in his role as the Clermont County Prosecutor, to “act in accordance with his clear legal duty” under
Motion for Summary Judgment
{¶ 14} “Summary judgment is a procedural device used to terminate litigation when there are no issues in a case requiring a formal trial.” Franchas Holdings, LLC v. Dameron, 12th Dist. Clermont No. CA2015-09-073, 2016-Ohio-878, ¶ 16, citing Roberts v. RMB Ents., Inc., 197 Ohio App.3d 435, 2011-Ohio-6223, ¶ 6 (12th Dist.).
Petition for a Writ of Mandamus
{¶ 15} Pursuant to
{¶ 16} A writ of mandamus should be “‘issued with great caution and discretion and only when the way is clear.‘” State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563, ¶ 18, quoting State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 166 (1977), citing State ex rel. Kriss v. Richards, 102 Ohio St. 455 (1921); and State ex rel. Skinner Engine Co. v. Kouri, 136 Ohio St. 343 (1940); Franta v. State Teachers Retirement Sys., 10th Dist. Franklin No. 20AP-230, 2020-Ohio-6843, ¶ 14 (“[m]andamus is an extraordinary remedy only granted with caution and when the right is clear“). That is to say, a writ of mandamus “should not issue in doubtful cases.” State ex rel. Vernon v. Adrine, 8th Dist. Cuyahoga No. 103149, 2015-Ohio-2867, ¶ 8; State ex rel. A.N., 8th Dist. Cuyahoga No. 109848, 2020-Ohio-5628, ¶ 7 (“[m]andamus will not issue in doubtful cases“); PNP, Inc. v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin No. 13AP-36, 2013-Ohio-4344, ¶ 13 (“[m]andamus will not issue in doubtful cases“).
{¶ 17} Based on the facts of this case, to be entitled to the requested writ of mandamus, Becker, as the relator, must show: (1) a clear legal right to the requested relief; (2) a clear legal duty on the Prosecutor Faris, as the respondent, to provide such relief; and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Howery v. Powers, 12th Dist. Butler No. CA2019-03-045, 2020-Ohio-2767, ¶ 8, citing State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, ¶ 6. Becker must prove these three elements by clear and convincing evidence. State ex rel. Santefort v. Wayne Twp. Bd. of Trustees, 12th Dist. Butler No. CA2014-07-153, 2015-Ohio-2009, ¶ 11, citing State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, ¶ 10. Failure to prove any one of these three elements is fatal to Becker‘s petition. State ex rel. Bey v. Ohio Bur. of Sentence Computation, 10th Dist. Franklin Nos. 19AP-46 and 19AP-534, 2021-Ohio-70, ¶ 4 (“[t]he burden is on relator to establish all three elements * * *“), citing State ex rel. Mars Urban Solutions, L.L.C. v. Cuyahoga Cty. Fiscal Officer, 155 Ohio St.3d 316, 2018-Ohio-4668, ¶ 6.
Private Citizen Affidavit – R.C. 2935.09(D) and 2935.10(A)
{¶ 18}
A private citizen having knowledge of the facts who seeks to cause an arrest or prosecution under this section may file an affidavit charging the offense committed with a reviewing official for the purpose of review to determine if a complaint should be filed by the prosecuting attorney or attorney charged by law with the prosecution of offenses in the court or before the magistrate.
“The statute defines ‘reviewing official’ as a judge, magistrate, or prosecutor.” State ex rel. Evans v. Tieman, 157 Ohio St.3d 99, 2019-Ohio-2411, ¶ 12, citing
{¶ 19} “Courts read
{¶ 20} ”
Analysis
{¶ 21} Becker argues that he is entitled to a writ of mandamus because Prosecutor Faris did not conduct an “investigation” into the allegations against Governor DeWine as required under
{¶ 22} To this, Prosecutor Faris argues that he did, in fact, conduct the statutorily required “investigation” into Becker‘s allegations. To support this claim, Prosecutor Faris notes that he reviewed Becker‘s allegations against Governor DeWine, as well as the relevant criminal statutes related to those allegations, prior to determining that no probable cause existed to issue a warrant for Governor DeWine‘s arrest. Prosecutor Faris also notes that many of Becker‘s allegations against Governor DeWine were “inapplicable on their face,” thereby alleviating the need for Prosecutor Faris to conduct any further investigation. Prosecutor Faris further notes that several of Becker‘s other allegations against Governor DeWine were “so vague” that any further investigation into those allegations would have been “futile.”
{¶ 23} Without question, we find that once Clerk Rudd referred Becker‘s private citizen affidavit to Prosecutor Faris for review, Prosecutor Faris was statutorily required by
{¶ 25} The term “inquiry” has been defined to mean “[a] request for information, either procedural or substantive.” Id. at 808. The term “inquiry” has also been defined to mean “the act or an instance of seeking truth, information, or knowledge about something” and the “examination into facts and principles.” Webster‘s Third New International Dictionary 1167 (1993). The term “inquiry” has further been defined as “a systematic investigation often of a matter of public interest.” Merriam-Webster‘s Online: Dictionary and Thesaurus, https://www.merriam-webster.com/dictionary/inquiry (accessed Mar. 18, 2021).
{¶ 26} Given the numerous definitions of “investigation,” “investigate,” and “inquiry” as set forth above, it is clear to this court that Prosecutor Faris’ “investigation” into the allegations set forth in Becker‘s private citizen affidavit against Governor DeWine did not have to last any set period of time. It is also clear to this court that Prosecutor Faris’ “investigation” did not have to result in the creation of any investigatory records. This makes sense when considering no private citizen affidavit is, or should be, exactly the same. That is to say, depending on the allegations set forth within any given private citizen affidavit, the time and energy a prosecutor must exert to investigate one private citizen affidavit could, and oftentimes will, vary greatly from the time and energy needed to investigate the
{¶ 27} Given Becker‘s affidavit in this case, which, as stated previously, alleged such claims as terrorism, making a terroristic threat, inducing panic, and bribery against Governor DeWine for his handling of the ongoing COVID-19 pandemic, this case presents a prime example of a private citizen affidavit that Prosecutor Faris did not need much time to investigate. This case also presents a prime example of an investigation that would not result in the production of much, if any, investigatory records. The fact that it took Prosecutor Faris nearly five hours is, in and of itself, proof to this court that Prosecutor Faris conducted the statutorily required “investigation” given the nature of Becker‘s claims against Governor DeWine. Simply stated, the “investigation” into the allegations set forth in Becker‘s private citizen affidavit required nothing more than a cursory review of the affidavit, coupled with the applicable criminal statutes, to determine Becker‘s claims against Governor DeWine were wholly meritless and lacked probable cause. This is exactly what Prosecutor Faris did upon receiving Becker‘s private citizen affidavit from Clerk Rudd for review. This most certainly satisfies the requirements set forth in
{¶ 28} We note that while Becker would prefer it to be different, the Ohio Supreme Court has consistently held, as we noted above, that “’
{¶ 29} We also note that prosecutors, like Prosecutor Faris, have “great discretion in deciding which charges should be filed and may decide, for a myriad of reasons, not to prosecute on certain charges notwithstanding that sufficient evidence exists to support a conviction.‘” State v. Conklin, 12th Dist. Butler No. CA94-03-064, 1995 Ohio App. LEXIS 1126, *8-9 (Mar. 27, 1995), quoting State v. Williams, 89 Ohio App.3d 288, 291 (10th Dist.1993). Becker has failed to demonstrate that Prosecutor Faris abused his discretion by failing to arrest and prosecute Governor DeWine for his handling of the ongoing COVID-19 pandemic. See, e.g., State ex rel. A.N., 8th Dist. Cuyahoga No. 109848, 2020-Ohio-5628 (declining to issue a writ of mandamus to compel prosecutor to file felony criminal charges against petitioner‘s two parents where petitioner failed to demonstrate the prosecutor‘s office had abused its discretion by failing bring charges based on the two private citizen affidavits petitioner had filed pursuant to
{¶ 30} Considering the record in this case, it is clear that the only “investigation” that would satisfy Becker is one that would result in Prosecutor Faris issuing a warrant for Governor DeWine‘s arrest and subsequent prosecution. But Prosecutor Faris is not required to bend the law in order to satisfy one man‘s efforts to grandstand and garner media attention for himself to score political points with his (now former) constituents. A
{¶ 31} In light of the foregoing, because Becker, as the relator, failed to show a clear legal right to the requested relief, i.e., to compel Prosecutor Faris, in his role as the Clermont County Prosecutor, to “act in accordance with his clear legal duty” under
Prosecutor Faris’ Request to Hold a Hearing on his Motion for Sanctions
{¶ 32} Prosecutor Faris has requested this court to hold a hearing on his motion for sanctions to determine whether sanctions should be imposed against Becker pursuant to
{¶ 33} Pursuant to
{¶ 34} Similarly, pursuant to
{¶ 35} Upon review of the record properly before this court, Prosecutor Faris’ request for this court to hold a hearing on his motion for sanctions against Becker, pursuant to
Conclusion
{¶ 36} For the reasons outlined above, Becker‘s motion for summary judgment is denied and Prosecutor Faris’ motion for summary judgment is granted. Therefore, finding merit in Prosecutor Faris’ motion for summary judgment, Becker‘s petition for a writ of mandamus is denied and Prosecutor Faris’ motion for a hearing to determine whether Becker‘s conduct in filing such a petition was frivolous given the nature of Becker‘s claims and the arguments raised therein is granted.
{¶ 37} Writ denied.