State ex rel. Strothers v. Turner - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. STROTHERS, APPELLANT, V. TURNER, CLERK, APPELLEE.
[Cite as State ex rel. Strothers v. Turner (1997), ___ Ohio St.3d ___.]
Mandamus compelling client of municipal court to file affidavit of private citizen
charging employee of juvenile court with offenses of theft in office and
falsification -- Respondent's motion for summary judgment properly
granted, when.

(No. 97-444 -- Submitted May 20, 1997 -- Decided July 23, 1997.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 71492.

In June 1996, WKYC-TV in Cleveland aired an investigative report which
suggested that Carmela Carter, an employee of the Cuyahoga County Juvenile
Court, Home Detention Unit, had submitted false travel expense reports in
connection with her employment duties. In August 1996, following an
investigation, the Cuyahoga County Sheriff's Department determined that Carter
had done nothing wrong. The county prosecutor's office determined that based on
the foregoing investigation, there existed no probable cause to file criminal
charges against Carter.

In October 1996, appellant, Gerald O. Strothers, Jr., a private citizen,
attempted to file an affidavit in the office of appellee, Earle B. Turner, Clerk of the
Cleveland Municipal Court, charging Carter with the offenses of theft in office

and falsification. The affidavit was based on the prior television investigative
report. Turner refused to file the affidavit because the sheriff's investigation
revealed that no probable cause existed to believe that Carter had committed the
alleged offenses.

Strothers then filed a complaint in the Court of Appeals for Cuyahoga
County requesting that a writ of mandamus issue to compel Turner to file his
affidavit. Turner filed a motion to dismiss or alternative motion for summary
judgment. The court of appeals granted Turner's motion for summary judgment
and denied the writ.

The cause is now before this court upon an appeal as of right.
___________________

Gerald O. Strothers, Jr., pro se.

Sharon Sobol Jordan, Cleveland Director of Law, and Renee A. Bacchus,
Assistant Director of Law, for appellee.
___________________

Per Curiam. Strothers asserts that he is entitled to the requested writ of
mandamus pursuant to R.C. 2935.09. For the reasons that follow, we find this
assertion to be meritless and affirm the judgment of the court of appeals.

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While R.C. 2935.09 provides that a "private citizen having knowledge of
the facts" shall file with a judge, clerk of court, or magistrate an affidavit charging
an offense committed in order to cause the arrest or prosecution of the person
charged, it must be read in pari materia with R.C. 2935.10, which prescribes the
subsequent procedure to be followed. State v. Holbert (1974), 38 Ohio St.2d 113,
117, 67 O.O.2d 111, 113, 311 N.E.2d 22, 25.

R.C. 2935.10(A) provides after the filing of an R.C. 2935.09 affidavit with a
judge, clerk, or magistrate charging a felony offense, "such judge, clerk, or
magistrate, unless he has reason to believe that it was not filed in good faith, or the
claim is not meritorious, shall forthwith issue a warrant for the arrest of the person
charged in the affidavit, and directed to a peace officer; otherwise he shall
forthwith refer the matter to the prosecuting attorney or other attorney charged by
law with prosecution for investigation prior to the issuance of warrant."

Under R.C. 2935.10(A), a clerk with whom an R.C. 2935.09 affidavit
charging a felony offense is filed has no duty to issue an arrest warrant if the clerk
determines that the affidavit is either not filed in good faith or is not meritorious.
State ex rel. Jackson v. Clerk of Courts, Columbiana Cty. (June 8, 1995),
Columbiana App. No. 94-C-75, unreported, 1995 WL 358705. Instead, under the

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foregoing circumstances, the clerk need only refer the matter to the prosecuting
attorney. Id.; R.C. 2935.10(A).

As the court of appeals determined, mandamus will not issue to compel a
vain act. State ex rel. Leach v. Schotten (1995), 73 Ohio St.3d 538, 540, 653
N.E.2d 356, 358. A writ of mandamus to compel Turner to file the affidavit would
constitute a vain act because the summary judgment evidence established that
Turner had reason to believe that Strothers's affidavit lacked merit and that the
prosecuting attorney had already determined that there existed no probable cause
to believe that Carter had committed the offenses charged by Strothers. As the
court of appeals noted, "the authorities responsible for prosecuting Carmela Carter
for any criminal violation have determined that no probable cause exists for the
filing of criminal charges." Therefore, since the filing of Strothers's affidavit
would lead to neither Carter's arrest nor prosecution, the court of appeals properly
concluded that Strothers is not entitled to the requested extraordinary relief in
mandamus.

Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.

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