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State ex rel. Ware v. DeWine

Court of Appeals of Ohio, Tenth District

December 17, 2019

State of Ohio ex rel. Kimani Ware, Relator,
v.
Mike DeWine, Governor, Respondent.

          IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Kimani Ware, pro se.

         On brief:

          Dave Yost, Attorney General, and Heather L. Buchanan, for respondent.

          DECISION

          SADLER, J.

         {¶ 1} Relator, Kimani Ware, filed this original action requesting a writ of mandamus ordering respondent, Mike DeWine, Governor of the State of Ohio, to respond to a public records request.

         {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 and LocR. 13(M) of the Tenth District Court of Appeals.[1] The magistrate issued the appended decision, including findings of fact and conclusions of law, recommending this court deny relator's motion for summary judgment, grant respondent's motion for summary judgment, and deny the requested writ. More particularly, the magistrate determined that because there was no genuine issue of material fact whether respondent had either failed to fulfill relator's public records request or failed to do so promptly, relator was not entitled to statutory damages under R.C. 149.43(C)(1), as a matter of law. Relator timely filed objections to the magistrate's decision, with leave of court, on August 21, 2019.

         {¶ 3} In his first objection, relator contends that the magistrate erred by failing to consider argument contained in his affidavit submitted June 14, 2019. The magistrate concluded: "[Relator's affidavit submitted on June 14, 2019 is composed entirely of legal arguments and conclusory statements of law, it has no more value as an affidavit than as a memorandum of law and any deficiencies in attestation are irrelevant. The magistrate takes relator's June 14, 2019 filing under consideration solely as non-evidentiary material in the form of argument." (Mag.'s Decision at ¶ 36.)

         {¶ 4} Based on our review of relator's June 6, 2019 affidavit, docketed by this court on June 14, 2019, we agree with the magistrate's characterization of the averments in the affidavit, as well as the magistrate's treatment of the non-evidentiary material contained therein. Contrary to relator's assertion, the magistrate fully considered the legal arguments contained in his affidavit. Accordingly, we overrule relator's first objection.

         {¶ 5} In his second objection, relator argues the magistrate erred by concluding relator was not entitled to statutory damages due to respondent's undue delay in responding to his public records request. The magistrate considered relator's arguments and evidence in support of his claim that respondent failed to comply with the public records law and concluded that there was no genuine issue of material fact whether respondent had either failed to fulfill the public records request or failed to do so promptly. Accordingly, the magistrate determined relator was not entitled to statutory damages under R.C. 149.43(C)(1), as a matter of law. We agree with the magistrate, and for the reasons set forth in the magistrate's decision, we overrule relator's second objection.

         {¶ 6} In his third objection, relator claims that the magistrate erred in concluding that there was no genuine issue of material fact, given the alleged conflict between the averments in his affidavit and the affidavit of respondent's counsel. The magistrate considered this issue and reached the following conclusion:

The magistrate concludes that there remains no genuine issue of material fact on the question of whether the governor's office responded to relator's public records request through the initial March 19, 2019 mailing, and consideration of the later mailing is unnecessary. R.C. 149.43(B)(1) provides that public records shall be "made available." Given relator's institutional status, mailing to the institutional authorities fulfilled respondent's obligation in this respect. There is, therefore, in this case no need to resolve the evidentiary conflict between relator's affidavit stating that he never received the first mailing of records personally, and the affidavit of Assistant Chief Counsel McCullough stating that the records were duly mailed for receipt on March 19, 2019, as corroborated by receipt by the appropriate institutional custodian. The governor's office could do nothing more to make the records "available" to relator, and no writ issued by this court could compel the governor's office to do more than was done with respect to the March 19, 2019 mailing

         (Emphasis added.) (Mag.'s Decision at ¶ 44.)

         {¶ 7} Even though relator's affidavit contains the factual averment that he did not receive any documents from respondent on March 19, 2019, we agree with the magistrate's conclusion that relator's assertion does not give rise to a material factual issue as to respondent's compliance with the public records law, given the undisputed averment in the affidavit of a prison employee that the institution received legal mail from respondent, addressed to relator, on March 19, 2019. Accordingly, we agree with the magistrate that this court did not need to resolve the conflicting averments in the affidavits of relator and McCullough in order to determine, as a matter of law, that respondent fully complied with his statutory duty in respect to the public records request.

         {¶ 8} After an examination of the magistrate's decision, an independent review of the record pursuant to Civ.R. 53, and due consideration of relator's objections, we find the magistrate properly determined the facts and applied the appropriate law. Accordingly, we overrule the objections and adopt the magistrate's findings of fact and conclusions of law. In accordance with the magistrate's decision, we deny relator's motion for summary judgment, grant respondent's motion for summary judgment, and deny the requested writ of mandamus.

         Relator's motion for summary judgment denied; respondent's motion for summary judgment granted; objections overruled, writ of mandamus denied.

          DORRIAN and NELSON, JJ., concur.

         APPENDIX

         Rendered on July 19, 2019

         IN MANDAMUS ON MOTIONS ...


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