State ex rel. Brown v. Nusbaum (Slip Opinion)

[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

THE STATE EX REL. BROWN, APPELLANT, v. NUSBAUM, JUDGE, APPELLEE.

[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.]

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.

(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.

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Background

{¶ 2} In September 2014, Brown filed a demand and a supporting affidavit

in the Ross County Common Pleas Court under R.C. 2935.09. He sought the

issuance of criminal warrants against numerous employees of Aramark

Correctional Services, Inc., the Ohio Department of Rehabilitation and Correction,

and the Ohio attorney general. See Brown v. Mohr, Ross C.P. No. 14CI000390.

{¶ 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 R.C. 2935.09 proceeding, so that he could file an appeal. The trial court denied

the motion and Brown’s subsequent motion for reconsideration.

{¶ 5} In October 2016, Brown filed a complaint for a writ of mandamus in

the Fourth District Court of Appeals, seeking an order to compel Judge Nusbaum

to issue a final, appealable order in the R.C. 2935.09 proceeding so that Brown can

pursue an appeal. The appeals court granted Judge Nusbaum’s motion to dismiss

under Civ.R. 12(B)(6).

{¶ 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.

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January Term, 2017

{¶ 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 Civ.R. 12(B)(6) de novo. State

ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St. 3d 315, 2016-Ohio-478,

56 N.E.3d 913, ¶ 12. In doing so, we must presume the truth of all factual

allegations in the complaint and draw all reasonable inferences in the nonmoving

party’s favor. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d

753 (1988). We will affirm a lower court’s judgment granting the motion “only

when there is no set of facts under which the nonmoving party could recover.” Ohio

Civ. Serv. Emps. Assn. at ¶ 12.

{¶ 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

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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

R.C. 2935.09 proceeding.

{¶ 12} A trial court’s obligations with regard to citizen affidavits are

defined by R.C. 2935.09 and 2935.10. R.C. 2935.09(D) authorizes a private citizen

“who seeks to cause an arrest or prosecution” to “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.” We read this section in

pari materia with R.C. 2935.10, which “prescribes the procedure to be followed

once a citizen files a criminal complaint” under R.C. 2935.09. State ex rel. Bunting

v. Styer, 147 Ohio St.3d 462, 2016-Ohio-5781, 67 N.E.3d 755, ¶ 15. If the citizen

affidavit charges a felony, R.C. 2935.10 directs a judge who is reviewing the

affidavit to do one of two things: (1) “issue a warrant for the arrest of the person

charged in the affidavit” or (2) “refer the matter to the prosecuting attorney * * *

for investigation prior to the issuance of [a] warrant” if the judge “has reason to

believe that [the affidavit] was not filed in good faith, or the claim is not

meritorious.” R.C. 2935.10(A); see State ex rel. Boylen v. Harmon, 107 Ohio St.3d

370, 2006-Ohio-7, 839 N.E.2d 934, ¶ 7.

{¶ 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 R.C. 2935.10 was extinguished. The statute does not contemplate a judge’s

subsequent review of the prosecutor’s investigation or decision whether to

prosecute. Nor does it require a judge to issue a final order of dismissal if a

prosecutor decides not to prosecute.

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January Term, 2017

{¶ 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 R.C. 2935.10. Instead, they identify the legal standard that

applies in an entirely different context—namely, when a writ of mandamus is

sought to compel a prosecutor to investigate alleged misconduct. See, e.g., id.;

State ex rel. Squire v. Taft, 69 Ohio St.3d 365, 368, 632 N.E.2d 883 (1994); State

ex rel. Murr v. Meyer, 34 Ohio St.3d 46, 47, 516 N.E.2d 234 (1987). Brown is not

seeking to compel the prosecutor to investigate or to prosecute. He is seeking to

compel the trial court to issue a final order. In any event, these cases confirm that

the decision not to prosecute is “not generally subject to judiciary review.”

(Emphasis added.) Master at 27.

{¶ 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 R.C. 2935.10 for an abuse of discretion. In one case, the trial court

(apparently acting sua sponte) conducted a probable-cause hearing after the

prosecutor declined to prosecute. The court then entered an order declining to find

probable cause. In re Charging Affidavit of Demis, 5th Dist. Stark No. 2013 CA

00098, 2013-Ohio-5520. And in the other, the trial court denied a motion for a

probable-cause hearing after the prosecutor declined to prosecute. In re Slayman,

5th Dist. Licking No. 08CA70, 2008-Ohio-6713. In each case, the court of appeals

held that the trial court did not abuse its discretion. But neither case establishes a

trial court’s legal duty to conduct a probable-cause hearing or otherwise review a

prosecutor’s decision not to prosecute a matter referred under R.C. 2935.10. And

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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.

_________________

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