State ex rel. Muff v. Wollenberg

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[Cite as State ex rel. Muff v. Wollenberg, 2008-Ohio-4699.] COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO, EX REL., MAXWELL MUFF Relator -vsLYNN WOLLENBERG PERRY COUNTY CLERK OF COURT Respondent : : : : : : : : : : : JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Julie A. Edwards, J. CASE NO. 08-CA-11 OPINION CHARACTER OF PROCEEDING: Petition for Writ of Mandamus JUDGMENT: WRIT DENIED DATE OF JUDGMENT ENTRY: 9-17-2008 APPEARANCES: For Relator pro se: For Respondent: MAXWELL MUFF CCI-A-413-679 P.O. Box 5500 Chillicothe, OH 45601 STEPHEN R. HERENDEEN Assistant Prosecuting Attorney Perry County Prosecutor s Office New Lexington, OH 43764 Perry County, Case No. 08-CA-11 2 Hoffman, P.J., {¶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 R.C. 2935.09 and 2935.10. {¶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 R.C. 2935.09 as the basis for establishing a clear legal right. R.C. 2935.09 provides, {¶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. Perry County, Case No. 08-CA-11 3 {¶8} (B) In all cases not provided by sections 2935.02 to 2935.08 of the Revised Code, in order to cause the arrest or prosecution of a person charged with committing an offense in this state, a peace officer or a private citizen having knowledge of the facts shall comply with this section. {¶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 the 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. {¶11} R.C. § 2935.09. {¶12} R.C. 2935.09(D) allows, in limited circumstances, a private citizen to file an affidavit charging an offense with the clerk of courts for the purpose of having a reviewing official determine whether a complaint should be filed. In the instant case, Relator seeks to file a complaint with an affidavit attached. The statute distinguishes a complaint from an affidavit. The plain language of this code section does not permit the filing of a complaint by a private citizen; therefore, Relator has not demonstrated he has a clear legal right to have his complaint filed. Nor has Relator demonstrated Respondent has a clear legal duty to file a complaint issued by a private citizen under this statute. We do recognize Relator has a clear legal right to file an affidavit charging the offense with the clerk s office either before or after normal business hours of the reviewing officials, if the clerk s office is open. {¶13} WRIT DENIED. Perry County, Case No. 08-CA-11 4 {¶14} COSTS TO RELATOR. By: Hoffman, P.J. Wise, J. and Edwards, J. concur _____________________________ HON. WILLIAM B. HOFFMAN _____________________________ HON. JOHN W. WISE _____________________________ HON. JULIE A. EDWARDS [Cite as State ex rel. Muff v. Wollenberg, 2008-Ohio-4699.] COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO, EX REL., MAXWELL MUFF Relator -vsLYNN WOLLENBERG, CLERK PERRY COUNTY COURT Respondent : : : : : : : : : : : CASE NO. 08-CA-11 JUDGMENT ENTRY 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

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