State of Ohio, ex rel. Steven S. Brown, Relator, v. Judge Nusbaum, Respondent.
Case No. 16CA3572
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
RELEASED: 3/06/2017
[Cite as State ex rel. Brown v. Nusbaum , 2017-Ohio-797.]
Steven S. Brown, Leavittsburg, Ohio, pro se Relator
James L. Mann and Mark A. Preston, Mann & Preston LLP, Chillicothe, Ohio for Respondent
HARSHA, A.J.,
{¶1} Relator Steven S. Brown filed a petition for writ of mandamus to compel Respondent Judge Nusbaum to issue a final order in a proceeding in which Brown filed an affidavit charging criminal offenses under
I. FACTS
{¶2} Under the authority of
{¶3} Then Brown filed a petition for a writ of mandamus against the Honorable Scott W. Nusbaum, the trial court judge, requesting a writ ordering Judge Nusbaum to issue a final order in the statutory proceeding. Brown claims that after Judge Nusbaum referred the matter to the prosecutor, the prosecutor obtained copies of Brown‘s documents that proved all of his claims. Brown claims the prosecutor‘s steps were inadequate and did not constitute an investigation. Brown contends that at a hearing held in September 2016, he asked Judge Nusbaum to issue a final order so that Brown could file an appeal of his
{¶4} Judge Nusbaum filed a motion to dismiss the mandamus petition. He claims that he fulfilled his statutory duties under
{¶5} Brown filed a response arguing that he can appeal the prosecutor‘s refusal to prosecute a complaint when the failure to do so is an abuse of discretion. He also argues that the trial court has a duty to review the prosecutor‘s decision that his affidavit lacked merit and the appellate court, in turn, reviews the trial court‘s decision under an abuse of discretion standard. He contends that without a final order dismissing the proceeding, he cannot appeal the prosecutor‘s determination that his affidavit lacks merit.
II. Civ.R. 12(B)(6) Requirements
{¶6} “A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint.” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992); see also State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, ¶ 6 (A court can dismiss a mandamus action under
III. Petition for Writ of Mandamus
{¶7} Mandamus actions are governed by Ohio Revised Code Chapter 2731. A mandamus is a writ to enforce performance of a specific act by a public official or agency and will only be issued where there is a clear legal duty to act. A writ of mandamus is not available when there is a plain and adequate remedy in the ordinary course of law. See
{¶8} A mandamus petition can be used to compel a judge to issue an entry that constitutes a final appealable order. State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, ¶¶ 32-33.
Although procedendo is the more appropriate remedy, “mandamus will lie when a trial court has refused to render, or unduly delayed rendering, a judgment.” * * *
We have consistently held that ” ‘[i]f the trial court refuses upon request or motion to journalize its decision, either party may compel the court to act by filing a writ of mandamus or a writ of procedendo’ ” because ‘[a]bsent journalization of the judgment, [a party] cannot appeal it.”
Id.
{¶9} Brown seeks a writ of mandamus that “respectfully asks that this court order a final order or order Judge Neusbaum [sic] to do it and charge costs to him.” Brown contends that both
{¶10}
{¶11} Brown cites to In re Charging Affidavit of Demis, 5th Dist Stark No. 2013CA98, 2013-Ohio-5520 and In re Slayman, 5th Dist. Licking No. 08CA70, 2008-Ohio-6713 to support his argument that the trial court must review the prosecutor‘s
{¶12} In In re Charging Affidavit of Demis, supra, the trial court conducted a probable cause hearing on an affidavit filed under
{¶13} State ex rel. Evans involved a mandamus action filed against the
R.C. 2935.10 does not place any duty upon city prosecutors to prosecute misdemeanors charged by affidavit filed underR.C. 2935.09 . In addition, a prosecuting attorney will not be compelled to prosecute except when the failure to do so constitutes an abuse of discretion. * * * Evans did not allege sufficient facts in his complaint evidencing that the city prosecutor abused her discretion by determining that the charges lacked probable cause. See State ex rel. Murr v. Meyer (1987), 34 Ohio St.3d 46, 47, 516 N.E.2d 234, 235, affirming the dismissal of a similar mandamus claim.
{¶14} There is nothing in the decision in Evans that requires a trial court to conduct a probable cause hearing under
{¶15} We find nothing in
{¶16} Brown has not established that he is entitled to a writ of mandamus compelling the respondent to issue a final order. We GRANT respondent‘s motion to dismiss, DENY the writ, and DISMISS the action.
{¶17} The clerk shall serve a copy of this order on all counsel of record by ordinary mail and any unrepresented parties at their last known addresses by certified mail.
{¶18} RESPONDENT‘S MOTION GRANTED. WRIT DENIED. PETITION DISMISSED. COSTS TO RELATOR. IT IS SO ORDERED.
Abele, J. & Hoover, J.: Concur.
FOR THE COURT
William H. Harsha
Administrative Judge
NOTICE
This document constitutes a final judgment entry and the time period for appeal commences from the date of filing with the clerk.
Pursuant to