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State ex rel. Swanson v. Cuyahoga County Clerk of Courts

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 20, 2018

STATE OF OHIO, EX REL. RICHARD SWANSON RELATOR
v.
CUYAHOGA COUNTY CLERK OF COURTS RESPONDENT

          Writ of Mandamus Motion No. 515073 Order No. 516184

          FOR RELATOR Richard Swanson, pro se

          ATTORNEYS FOR RESPONDENT Michael C. O'Malley Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, J.

         {¶1} On January 30, 2018, the relator, Richard Swanson, commenced this mandamus action against the respondent, the Cuyahoga County Clerk of Courts, to compel the clerk to send him (1) his appellate case number, (2) the docketing schedule order, and (3) the status of the appeal - whether the appeal is on the accelerated calendar or the regular calendar. On February 22, 2018, the respondent, through the Cuyahoga County Prosecutor, filed a motion to dismiss. Swanson never filed a response. For the following reasons, this court grants the respondent's dispositive motion and denies the writ of mandamus.

         {¶2} In the underlying case, State v. Swanson, Cuyahoga C.P. No. CR-96-339267-ZA, in August 1996, Swanson pled guilty to aggravated robbery. The court sentenced him to 5 to 25 years, but placed him on five years probation upon completion of his sentence in two other cases. However, in November 1998, the court terminated probation and imposed the sentence when Swanson violated probation by absconding from Harbor Light and by being convicted of theft.

         {¶3} In July 2017, Swanson filed a motion to correct void judgment in the underlying case on the grounds that because he was not notified of his right to appeal, the judgment is void and not a final, appealable order. The trial court denied the motion, and Swanson appealed, State v. Swanson, 8th Dist. Cuyahoga No. 106566. It is in this appeal that Swanson claims that the clerk did not fulfill the above-stated duties.

         {¶4} The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief, and (3) there must be no adequate remedy at law. State ex rel Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978). "The facts submitted and the proof produced must be plain, clear, and convincing before a court is justified in using the strong arm of the law by way of granting the writ." State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 161, 228 N.E.2d 631 (1967). Mandamus is an extraordinary remedy which is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); and State ex rel Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953).

         {¶5} Moreover, the court has discretion in issuing the extraordinary writ. In Pressley, supra, paragraph seven of the syllabus, the Supreme Court of Ohio ruled that "in considering the allowance or denial of the writ of mandamus on the merits, [the court] will exercise sound, legal and judicial discretion based upon all the facts and circumstances in the individual case and the justice to be done." The court elaborated that in exercising that discretion the court should consider

the exigency which calls for the exercise of such discretion, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing on the particular case. * * * Among the facts and circumstances which the court will consider are the applicant's rights, the interests of third persons, the importance or unimportance of the case, the applicant's conduct, the equity and justice of the relator's case, public policy and the public's interest, whether the performance of the act by the respondent would give the relator any effective relief, and whether such act would be impossible, illegal, or useless.

Pressley at 161-162. State ex rel. Bennett v. Lime, 55 Ohio St.2d 62, 378 N.E.2d 152 (1978); State ex rel. Dollison v. Reddy, 55 Ohio St.2d 59, 378 N.E.2d 150 (1978); and State ex rel. Mettler v. Commrs. of Athens Cty., 139 Ohio St. 86, 38 N.E.2d 393 (1941).

         {¶6} Swanson's request for mandamus fails because he does not establish that the clerk has a clear, legal duty to inform him of his case number, send him the docketing schedule, or inform him of the status of the case. The creation of a duty enforceable in mandamus is the distinct function of the legislative branch of government, and Swanson cites to no statute or any other authority for his propositions. State ex rel Gessner v. Vore, 123 Ohio St.3d 96, 2009-Ohio-4150, 914 N.E.2d 376; and State ex rel Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719; State ex rel Simmons v. Clancy, 8th Dist. Cuyahoga No. 102431, 2015-Ohio-1387.

         {¶7} Moreover, this matter is moot. On January 30, 2018, this court in the appeal issued an order to Swanson concerning the filing of the record. That order contained the case number. Swanson timely filed his brief in the appeal on March 16, 2018. The ten-page brief included six assignments of error. So Swanson has had no problem with abiding by the time lines in the rules. His six assignments of error present multiple issues of law. Loc.App.R. 11.1(A)(2)(c) provides that appeals that concern multiple issues of law should not be on the accelerated calendar. Court records show that Swanson's appeal is on the regular calendar. Thus, granting the writ of mandamus would not grant Swanson any effective relief

         {¶8} Accordingly, this court grants the respondent's dispositive motion and denies the application for a writ of mandamus. Relator to pay costs. This court directs the clerk of courts to serve all parties notice of this judgment ...


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