The State ex rel. Robert L. Hillman, Relator,
Franklin County Common Pleas Judge Jeffrey Brown, Respondent.
PROCEDENDO ON RESPONDENT'S MOTION TO DISMISS
L. Hillman, pro se.
O'Brien, Prosecuting Attorney, and Bryan B. Lee, for
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.
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
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 ...