THE STATE EX REL. RICHARD ET AL.; CALO, APPELLANT, v. CHAMBERS-SMITH, DIR., ET AL., APPELLEES.
No. 2018-1445
Supreme Court of Ohio
May 23, 2019
Slip Opinion No. 2019-Ohio-1962
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Richard v. Chambers-Smith, Slip Opinion No. 2019-Ohio-1962.]
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. 2019-OHIO-1962
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Richard v. Chambers-Smith, Slip Opinion No. 2019-Ohio-1962.]
Mandamus—Second motion for relief from judgment making the same arguments as previous motion for relief from judgment barred by res judicata—Court of appeals’ judgment affirmed.
(No. 2018-1445—Submitted March 26, 2019—Decided May 23, 2019.)
APPEAL from the Court of Appeals for Franklin County, No. 11AP-780.
{¶ 1} Appellant, Dennis Calo, appeals the Tenth District Court of Appeals’ denial of his
Background
{¶ 2} In September 2011, Calo and two other inmates, Ronald Jolly and Donald Richard (collectively, “relators”), filed a complaint for a writ of mandamus in the Tenth District Court of Appeals. They argued that because they were sentenced before July 1, 1996, the APA had to consider them for parole at the intervals set by the version of
{¶ 3} A magistrate recommended that the court of appeals grant DRC‘s motion to dismiss, reasoning that relators were not entitled to a writ of mandamus, because even if their past parole hearings should have been more frequent, DRC could not “go back in time and perform [additional] hearings.” State ex rel. Richard v. Mohr, 10th Dist. Franklin No. 11AP-780, 2012-Ohio-4413, ¶ 28. The magistrate also concluded that they were not entitled to annual
{¶ 4} In August 2013, relators filed a
{¶ 5} In August 2018, relators again moved for relief from judgment in the Tenth District on the same grounds that relators had asserted in their 2013
Law and Analysis
{¶ 6} As a threshold matter, we must consider DRC‘s motion to dismiss Calo‘s appeal. DRC argues that the appeal is barred by the doctrine of res judicata and that Calo is seeking to be released from prison, which is not an appropriate use of a writ of mandamus. DRC‘s arguments go to the merits of Calo‘s appeal, not the jurisdiction of this court. See, e.g., State ex rel. Wilson-Simmons v. Lake Cty. Sheriff‘s Dept., 82 Ohio St.3d 37, 40, 693 N.E.2d 789 (1998) (res judicata is an affirmative defense and does not divest the second tribunal of jurisdiction to decide the validity of that defense). We deny DRC‘s motion to dismiss.
{¶ 7} We next turn to the court of appeals’ judgment denying Calo‘s 2018 motion for relief from judgment under
{¶ 8} The court of appeals correctly denied Calo‘s second
{¶ 9} Finally, we turn to Calo‘s pending motions, none of which has merit. First, Calo moves this court to disqualify the attorney general‘s office as counsel for DRC, alleging decades of “lies wrapped in a falsehood” and public corruption on the part of various assistant attorneys general. Because Calo has submitted no evidence whatsoever to support his vague accusations
{¶ 10} Second, Calo moves Chief Justice O‘Connor and Justice Stewart to reissue their responses denying Calo‘s requests for recusal, arguing that their signatures were required “to ensure that the procedures, in this matter, were adhered to.” But S.Ct.Prac.R. 4.04(C), which governs responses for recusal requests, simply requires the named justice to “submit a written response to the Clerk indicating whether the justice will recuse from the case.” Nothing in the rule requires the response to be signed. Accordingly, we deny those motions.
{¶ 11} Third, Calo moves to strike DRC’s “Merit Brief in Opposition and Motion to Dismiss.” Specifically, Calo takes issue with how DRC titled the document and with the cases cited in the brief. Calo cites no authority to support his motion to strike, nor does he specify why DRC‘s brief should be struck under the relevant rule, S.Ct.Prac.R. 2.01(C). And Calo addresses the merits of DRC‘s brief in his reply brief. We deny Calo‘s motion to strike.
{¶ 12} Lastly, on February 4, 2019, Calo moved this court to take judicial notice of numerous alleged “facts,” including that several parole-board members are under investigation for several crimes. Although Evid.R. 201(B) allows a court to take judicial notice of a fact if it is “not subject to reasonable dispute,” the facts asserted by Calo are “subject to reasonable dispute.” Although the taking of judicial notice is allowed at any stage of the proceedings, Evid.R. 201(F), it is not “an exception to the rule that evidence must be timely offered in a judicial proceeding,” AP Hotels of Illinois, Inc. v. Franklin Cty. Bd. of Revision, 118 Ohio St.3d 343, 2008-Ohio-2565, 889 N.E.2d 115, ¶ 8, fn. 1. Indeed, Calo could have presented his evidence in the court of appeals when he filed his
Judgment affirmed.
O‘CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
Dennis Calo, pro se.
Dave Yost, Attorney General, and George Horvath, Assistant Attorney General, for appellees.