State ex rel. Muff v. WollenbergState ex rel. Muff v. Wollenberg
{¶1} Relator has filed a Complaint for the issuance of a Writ of Mandamus compelling Respondent to file a criminal complaint prepared by Relator. Respondent has filed a Motion to Dismiss to which Relator has filed a reply in opposition.
{¶2} Relator presented a criminal complaint to Respondent against Joseph A. Flautt for Tampering with Evidence, a felony of the third degree. Attached to the Complaint is an affidavit signed by Relator which appears to purport to be filed in compliance with
{¶3} To be entitled to the issuance of a writ of mandamus, relator must demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the respondent‘s part to perform the act; and, (3) that there exists no plain and adequate remedy in the ordinary course of law. State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 26-27, 661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 5 Ohio St.2d 41, 324 N.E.2d 641, citing State ex rel. National City Bank v. Bd. of Education (1977), 520 Ohio St.2d 81, 369 N.E.2d 1200.
{¶4} We find Relator does not have a clear legal right to the relief prayed for nor does Respondent have a clear legal duty to perform the requested act.
{¶5} Relator relies on
{¶6} 2935.09 Accusation by affidavit to cause arrest or prosecution
{¶7} (A) As used in this section, “reviewing official” means a judge of a court of record, the prosecuting attorney or attorney charged by law with the prosecution of offenses in a court or before a magistrate, or a magistrate.
{¶9} (C) A peace officer who seeks to cause an arrest or prosecution under this section may file with a reviewing official or the clerk of a court of record an affidavit charging the offense committed.
{¶10} (D) 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 a court or before the magistrate. A private citizen may file an affidavit charging the offense committed with the clerk of a court of record before or after the normal business hours of the reviewing officials if the clerk‘s office is open at those times. A clerk who receives an affidavit before or after the normal business hours of the reviewing officials shall forward it to a reviewing official when the reviewing official‘s normal business hours resume.
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{¶13} WRIT DENIED.
By: Hoffman, P.J.
Wise, J. and
Edwards, J. concur
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
HON. JULIE A. EDWARDS
For the reasons stated in the Memorandum-Opinion on file, Relator Writ of Mandamus is hereby denied. Costs taxed to Relator.
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
HON. JULIE A. EDWARDS