THE STATE EX REL. BROWN, APPELLANT, v. NUSBAUM, JUDGE, APPELLEE.
No. 2017-0485
SUPREME COURT OF OHIO
December 21, 2017
2017-Ohio-9141
Mandamus—R.C. 2935.09—Affidavit charging criminal conduct and seeking issuance of warrants—Mandamus does not lie to compel trial court to issue final, appealable order subsequent to its referral of affidavit to prosecutor for investigation.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Brown v. Nusbaum, Slip Opinion No. 2017-Ohio-9141.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2017-OHIO-9141
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Brown v. Nusbaum, Slip Opinion No. 2017-Ohio-9141.]
(No. 2017-0485—Submitted September 12, 2017—Decided December 21, 2017.)
APPEAL from the Court of Appeals for Ross County, No. 16CA3572.
Per Curiam.
{¶ 1} We affirm the judgment of the Fourth District Court of Appeals dismissing the petition of appellant, Steven S. Brown, for a writ of mandamus.
Background
{¶ 2} In September 2014, Brown filed a demand and a supporting affidavit in the Ross County Common Pleas Court under
{¶ 3} In January 2015, appellee, Judge Scott W. Nusbaum, issued an entry referring Brown‘s affidavit to the Ross County prosecuting attorney for investigation. The prosecutor refused to investigate and did not bring criminal charges.
{¶ 4} In August 2016, Brown moved the trial court to enter a final order in the
{¶ 6} Brown‘s appeal and Judge Nusbaum‘s unopposed motion to strike Brown‘s merit brief are now before this court.
Analysis
Motion to Strike
{¶ 7} Although Brown attached a certificate of service to the handwritten merit brief he filed with this court, Judge Nusbaum contends that Brown served him with a different, typewritten document, also captioned as a merit brief. Judge Nusbaum discovered the discrepancy on the court‘s docket before filing his own merit brief, and he alleges that he incurred substantial legal expense in revising his brief before filing.
{¶ 8} The judge objects to Brown‘s noncompliance not only with S.Ct.Prac.R. 3.11(B) (requiring service of briefs on all parties) but with S.Ct.Prac.R. 16.02 (requiring that arguments in an appellant‘s brief be presented as propositions of law). But this court is reluctant to strike a brief solely because it fails to frame arguments as propositions of law. And when confronted with failure of service, we have regularly denied motions to strike and instead allowed the moving party additional time to file. See, e.g., State ex rel. Meigs Cty. Home Rule Commt. v. Meigs Cty. Bd. of Commrs., 145 Ohio St.3d 1404, 2016-Ohio-804, 46 N.E.3d 699; State ex rel. McGrath v. McClelland, 132 Ohio St.3d 1493, 2012-Ohio-3590, 972 N.E.2d 604.
{¶ 9} Here, Judge Nusbaum discovered the service error before timely submitting his own merit brief. And his claim to have incurred significant legal expense appears questionable in light of the similarities between Brown‘s two briefs. While it is true that there are noticeable differences between the briefs, they both raise the same legal arguments and largely track each other. Under these circumstances, we deny the motion to strike.
Dismissal under Civ.R. 12(B)(6)
{¶ 10} This court reviews a dismissal under
{¶ 11} To prevail in his mandamus action, Brown must establish by clear and convincing evidence (1) that he has a clear legal right to the requested relief, (2) that Judge Nusbaum has a clear legal duty to provide it, and (3) that Brown lacks
an adequate remedy in the ordinary course of the law. State ex rel. Love v. O‘Donnell, 150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. “[M]andamus will lie when a trial court has refused to render, or unduly delayed rendering, a judgment.” State ex rel. Reynolds v. Basinger, 99 Ohio St.3d 303, 2003-Ohio-3631, 791 N.E.2d 459, ¶ 5. Here, the main issue before us is whether Judge Nusbaum had a clear legal duty to issue a final order dismissing Brown‘s
{¶ 12} A trial court‘s obligations with regard to citizen affidavits are defined by
{¶ 13} Here, Judge Nusbaum chose the second option, issuing an entry that referred the matter to the prosecutor for investigation. Once he did so, his duty under
{¶ 14} In an effort to identify other sources of Judge Nusbaum‘s legal duty to enter a final order, Brown invokes case law. First, he cites numerous cases stating that “[a] prosecuting attorney will not be compelled to prosecute a complaint except when the failure to prosecute constitutes an abuse of discretion.” State ex rel. Master v. Cleveland, 75 Ohio St.3d 23, 27, 661 N.E.2d 180 (1996). But none of these cases require a trial court to review a prosecutor‘s ultimate decision on matters referred under
{¶ 15} Brown also cites two cases in which the Fifth District Court of Appeals reviewed trial-court decisions regarding failure to prosecute a matter referred under
in any event, the relevance of these cases is not clear, as Brown is not seeking a probable-cause hearing or other review of the prosecutor‘s decision.
{¶ 16} Brown also fails to identify any source of a trial court‘s duty to issue a final, appealable order after a prosecutor decides not to prosecute. To the contrary, a “prosecutor‘s decision not to file a complaint is not a final, appealable order of the trial court, and the trial court cannot be compelled to enter such a final order.” Leavell v. Wilson, 6th Dist. Erie No. E-17-012, 2017-Ohio-1275, ¶ 14; see also Master, 75 Ohio St.3d at 27, 661 N.E.2d 180 (the decision not to prosecute is “not generally subject to judicial review“).
{¶ 17} Because Brown cannot establish that Judge Nusbaum had a clear legal duty to issue a final, appealable order, we affirm the court of appeals’ judgment dismissing Brown‘s mandamus action.
Judgment affirmed.
O‘CONNOR, C.J., and O‘DONNELL, KENNEDY, FRENCH, O‘NEILL, FISCHER, and DEWINE, JJ., concur.
Steven S. Brown, pro se.
Benson & Sesser, L.L.C., and Mark A. Preston, for appellee.