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State ex rel. Hillman v. Brown

Court of Appeals of Ohio, Tenth District

August 1, 2019

The State ex rel. Robert L. Hillman, Relator,
v.
Franklin County Common Pleas Judge Jeffrey Brown, Respondent.

          IN PROCEDENDO ON RESPONDENT'S MOTION TO DISMISS

          Robert L. Hillman, pro se.

          Ron O'Brien, Prosecuting Attorney, and Bryan B. Lee, for respondent.

          DECISION

          BRUNNER, J.

         {¶ 1} Relator, Robert L. Hillman, an inmate of the Chillicothe Correctional Institution, commenced this original action seeking a writ of procedendo ordering respondent, the Honorable Jeffrey Brown, a judge of the Franklin County Court of Common Pleas, to rule in accordance with the January 26, 2018 remand from this Court regarding Hillman's case in the Franklin C.P. No. 15CV-2664. For the reasons that follow, we adopt the magistrate's decision, granting Judge Brown's motion to dismiss and denying the requested writ.

         I. FACTS AND PROCEDURAL BACKGROUND

         {¶ 2} Hillman's underlying civil case was transferred to Judge Brown on February 14, 2018. Hillman filed this procedendo action on September 18, 2018, at which time the trial court had not issued an order pursuant to this Court's January 26, 2018 remand order.

         {¶ 3} On October 25, 2018, Judge Brown issued a decision and entry regarding Hillman's case. Pursuant to this Court's instructions on remand, Judge Brown considered whether Hillman had made a meritorious allegation of perjury. Judge Brown concluded that Hillman's affidavit failed to provide the trial court "any specific, articulable facts beyond Hillman's mere suspicion, belief, or opinion" that a certain police officer had committed perjury. (Oct. 25, 2018 Decision & Entry 15CV-2664 at 13.) Judge Brown found that Hillman's affidavit failed to demonstrate probable cause that the police officer had committed perjury and lacked a meritorious claim. Consequently, Judge Brown declined to issue a warrant for the police officer's arrest for the crime of perjury and referred the matter to the Franklin County Prosecuting Attorney for investigation.

         {¶ 4} On October 26, 2018, Judge Brown filed a motion to dismiss this procedendo action, attaching thereto the October 25, 2018 decision and entry.

         {¶ 5} This Court referred this matter to a magistrate pursuant to Civ.R. 53(C) and LocR. 13(M) of the Tenth District Court of Appeals. On December 21, 2018, the magistrate issued a decision, appended hereto, including findings of facts and conclusions of law. The magistrate found that Judge Brown had entered into the record a decision and entry on the matter that Hillman sought to compel by a writ of procedendo and that this constituted performance of the government act that Hillman sought. The magistrate concluded, therefore, that there is no action which this Court can order Judge Brown to perform, and the matter is moot. The magistrate recommended that this Court grant Judge Brown's motion to dismiss and dismiss Hillman's procedendo action. The magistrate also recommended that this Court waive filing fees.

         {¶ 6} Also on December 21, 2018, the magistrate issued an order denying Judge Brown's motion for more definite statement filed October 2, 2018 on the basis of mootness.

         {¶ 7} Hillman filed no objection to the magistrate's decision.

         II. LAW AND DISCUSSION

         {¶ 8} To be entitled to a writ of procedendo, a relator must establish a clear legal right to require the court to proceed, a clear legal duty on the part of the court to proceed, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Miley v. Parrott, 77 Ohio St.3d 64, 65 (1996). A writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment. Id. The magistrate's decision properly states, "[procedendo is an order from a court of superior jurisdiction to proceed to judgment: it does not attempt to control the inferior ...


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