State ex rel. Howard v. FerreriState ex rel. Howard v. Ferreri
- Reporters:
- , ,
- Before:
- Douglas
In order to be entitled to a writ of mandamus, the relator must establish that he has a clear legal right to the relief prayed for, that respondent has a clear legal duty to perform the requested act and that relator has no plain and adequate remedy at law. State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490, 633 N.E.2d 1128, 1129.
Howard initially requests a complete copy of the transcripts in case Nos.. 9311338 and 9315631. “In actions instituted by the state to force the permanent, involuntary termination of parental rights, the United States and Ohio Constitutions’ guarantees of due process and equal protection of the law require that indigent parents be provided with counsel and a transcript at public expense for appeals as of right.” State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 15 O.O.3d 3, 399 N.E.2d 66, paragraph two of the syllabus; cf. 2 Carr & Young, Anderson’s Ohio Family Law (2 Ed.1989) 371, Section 22.4 (“[t]o effectuate fully
Respondents refused Howard’s attorney’s written request for a file-stamped copy of the transcripts in case No. 9311338 on the basis of an affidavit of prejudice filed by Slodov in case No. 9315631 and a motion to compel. However, at the time this complaint was filed, the motion to compel had been withdrawn. Moreover, the affidavit of prejudice did not involve case No. 9311338 and the Chief Justice subsequently overruled Slodov’s motion to disqualify Judge Ferreri. Filing of transcripts and providing copies to indigent parents in appeals of right from permanent custody proceedings are ministerial duties, which respondents could have performed notwithstanding any pending affidavit of disqualification. See, e.g., Evans v. Dayton Newspapers, Inc. (1989), 57 Ohio App.3d 57, 566 N.E.2d 704. Therefore, respondents’ stated rationale for refusing Slodov’s written request was without merit.
Judge Ferreri claims in respondents’ answer that there were “unresolved issues regarding Relator’s claim of indigency” which preclude mandamus relief. The right to a free transcript pursuant to Heller hinges on the parent’s indigency status; thus, a request for a transcript at state expense may be properly denied where the juvenile court finds that the party has adequate financial means to obtain the transcript. State ex rel. Henry v. Grossmann (1983), 5 Ohio St.3d 235, 5 OBR 496, 450 N.E.2d 1156. During the proceedings in case No. 9311338, Judge Ferreri granted Howard’s motion for a transcript of the hearings and advised Slodov that he would be provided a copy of the transcript at the court’s expense. Additionally, Howard’s uncontroverted affidavit indicates that he is unemployed and has no assets. Where the moving party has produced sufficient supportive evidence on a summary judgment motion, the opposing party may not rest upon mere allegations in the pleadings but must respond with affidavits or other appropriate materials to show that there is a genuine issue of fact for trial.
Although respondents do not raise the argument, Howard must establish that the permanent custody proceedings instituted by CSS were in effect “instituted
Most of the protections for individual rights and liberties contained in the United States and Ohio Constitutions apply only to actions of governmental entities; thus, in order to apply, e.g., the due process right to a Heller transcript to the actions of private entities like CSS, there must be a determination of whether the agency’s actions in seeking permanent custody of Howard’s daughter constituted state action of a type regulated by constitutional provisions. See, generally, 2 Rotunda & Nowak, Treatise on Constitutional Law (2 Ed.1992) 523-524, Section 16.1(a).
The first inquiry is whether the claimed constitutional deprivation has resulted from the exercise of a right or privilege having its source in state authority. Georgia v. McCollum (1992), 505 U.S. -, 112 S.Ct. 2348, 120 L.Ed.2d 33. CSS is a “private child placing agency” as defined in
The second inquiry is whether the private party charged with the deprivation can be described as a state actor. McCollum, supra. In resolving the issue, the following three principles must be considered: “the extent to which the actor relies on governmental assistance and benefits, * * * whether the actor is performing a traditional governmental function, * * * and whether the injury caused is aggravated in a unique way by the incidents of governmental authority.” Edmonson v. Leesville Concrete Co. (1991), 500 U.S. 614, 621-622, 111 S.Ct. 2077, 2083, 114 L.Ed.2d 660, 674; see, also, Lugar v. Edmondson Oil Co. (1982), 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482.
While here there is no indication of the extent to which CSS relies on assistance from the state of Ohio, CSS is required to be certified under
Therefore, under Heller, the summary judgment evidence indicates that Howard has established a clear legal right to the transcripts in case No. 9311338 and a clear legal duty on the part of respondents, particularly Judge Ferreri, to provide a file-stamped copy to him. However, as to the transcripts in case No. 9315631, Heller requires an appeal. There is no evidence in the record either that case No. 9315631 has concluded or that an appeal as of right has been filed. See State ex rel. Copeland v. Judges of the Court of Appeals of the Third Appellate Dist. (1981), 67 Ohio St.2d 1, 5, 21 O.O.3d 1, 3, 424 N.E.2d 279, 282 (an actual appeal must be pending before a transcript will be provided). Therefore, Howard is not entitled to copies of the transcripts in case No. 9315631.
With regard to the transcripts in case No. 9311338, Howard must also establish the absence of an adequate legal remedy because a writ of mandamus will not be issued when there is a plain and adequate remedy in the ordinary course of law.
Nevertheless, there are some limited instances whSre mandamus is appropriate to provide a complete transcript of proceedings or to correct the record. See, e.g., State ex rel. Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 551 N.E.2d 183; State ex rel. Spirko v. Judges of the Court of Appeals, Third Appellate Dist. (1986), 27 Ohio St.3d 13, 27 OBR 432, 501 N.E.2d 625; cf. State ex rel. Cody v. Toner (1983), 8 Ohio St.3d 22, 8 OBR 255, 456 N.E.2d 813. In the case at bar, unlike Hill, Motley, or Ellison, Howard has established a clear legal right to a copy of the complete transcript of the proceedings in case No. 9311338. Further, it is uncontroverted that Judge Ferreri ordered the transcripts and then kept the
Although mandamus is generally not a proper method to correct alleged errors in the record, mandamus may be appropriate to compel the trial court to act if it refuses to do so. State ex rel. Wright v. Cohen (1962), 174 Ohio St. 47, 21 O.O.2d 294, 186 N.E.2d 618 (mandamus is the proper remedy to enforce the right of an indigent to a copy of the transcript for the purpose of preparing appeal where the request for transcript has been denied by the court); Associated Estates Corp. v. Fellows (1983), 11 Ohio App.3d 112, 11 OBR 166, 463 N.E.2d 417; Whiteside, Ohio Appellate Practice (1993) 56, Section T 4.07(D) (mandamus or procedendo appropriate to compel trial court to correct errors in record if court refuses to do so). We hold that the
Howard has a pending appeal in case No. 9311338. By compelling a complete transcript in that case, this court can ensure a meaningful appeal, since Howard contends that Judge Ferreri’s assertion that Howard testified that he was not presently able to care for Mary Beth was not supported by the record. See, e.g., Howard v. Catholic Soc. Serv., 70 Ohio St.3d at 142, 637 N.E.2d at 892. Howard has established an unrebutted colorable need for the transcript. Copeland, supra. Consequently, he is entitled to a writ of mandamus compelling the provision of a file-stamped copy of the complete transcript of proceedings in case No. 9311338 for purposes of his pending appeal from the dismissal without prejudice entered in that case.
Howard also seeks a writ of mandamus ordering respondents to provide access to the case files in case Nos. 9311338 and 9315631.
Accordingly, for the foregoing reasons, we grant Howard’s motion for summary judgment and issue a writ of mandamus compelling respondents to provide him with a complete copy of the transcript of proceedings in case No. 9311338, and further compelling respondents to provide him with access to the juvenile court case files in case Nos. 9311338 and 9315631. We deny Howard’s motion for summary judgment and writ of mandamus and deny relief on the merits as to his claim for a copy of the transcript of proceedings in case No. 9315631.
Writ granted in part and denied in part.
Moyer, C.J., A.W. Sweeney, Wright, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Douglas, J., concurs in judgment only.