Court of Appeals of Ohio, Eighth District, Cuyahoga
STATE OF OHIO, EX REL. RICHARD SWANSON RELATOR
CUYAHOGA COUNTY CLERK OF COURTS RESPONDENT
of Mandamus Motion No. 515073 Order No. 516184
RELATOR Richard Swanson, pro se
ATTORNEYS FOR RESPONDENT Michael C. O'Malley Cuyahoga
County Prosecutor By: James E. Moss Assistant County
JOURNAL ENTRY AND OPINION
C. GALLAGHER, J.
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
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.
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.
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).
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).
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.
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
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 ...