[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Brown v. Nusbaum, Slip Opinion No. 2017-Ohio-9141.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2017-OHIO-9141
   THE STATE EX REL. BROWN, APPELLANT, v. NUSBAUM, JUDGE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State ex rel. Brown v. Nusbaum, Slip Opinion No.
                                     2017-Ohio-9141.]
Mandamus—R.C. 2935.09—Affidavit charging criminal conduct and seeking
        issuance of warrants—Mandamus does not lie to compel trial court to issue
        final, appealable order subsequent to its referral of affidavit to prosecutor
        for investigation.
(No. 2017-0485—Submitted September 12, 2017—Decided December 21, 2017.)
                 APPEAL from the Court of Appeals for Ross County,
                                       No. 16CA3572.
                                    ________________
        Per Curiam.
        {¶ 1} We affirm the judgment of the Fourth District Court of Appeals
dismissing the petition of appellant, Steven S. Brown, for a writ of mandamus.
                             SUPREME COURT OF OHIO




                                    Background
        {¶ 2} In September 2014, Brown filed a demand and a supporting affidavit
in the Ross County Common Pleas Court under R.C. 2935.09. He sought the
issuance of criminal warrants against numerous employees of Aramark
Correctional Services, Inc., the Ohio Department of Rehabilitation and Correction,
and the Ohio attorney general. See Brown v. Mohr, Ross C.P. No. 14CI000390.
        {¶ 3} In January 2015, appellee, Judge Scott W. Nusbaum, issued an entry
referring Brown’s affidavit to the Ross County prosecuting attorney for
investigation. The prosecutor refused to investigate and did not bring criminal
charges.
        {¶ 4} In August 2016, Brown moved the trial court to enter a final order in
the R.C. 2935.09 proceeding, so that he could file an appeal. The trial court denied
the motion and Brown’s subsequent motion for reconsideration.
        {¶ 5} In October 2016, Brown filed a complaint for a writ of mandamus in
the Fourth District Court of Appeals, seeking an order to compel Judge Nusbaum
to issue a final, appealable order in the R.C. 2935.09 proceeding so that Brown can
pursue an appeal. The appeals court granted Judge Nusbaum’s motion to dismiss
under Civ.R. 12(B)(6).
        {¶ 6} Brown’s appeal and Judge Nusbaum’s unopposed motion to strike
Brown’s merit brief are now before this court.
                                      Analysis
                                  Motion to Strike
        {¶ 7} Although Brown attached a certificate of service to the handwritten
merit brief he filed with this court, Judge Nusbaum contends that Brown served
him with a different, typewritten document, also captioned as a merit brief. Judge
Nusbaum discovered the discrepancy on the court’s docket before filing his own
merit brief, and he alleges that he incurred substantial legal expense in revising his
brief before filing.




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       {¶ 8} The judge objects to Brown’s noncompliance not only with
S.Ct.Prac.R. 3.11(B) (requiring service of briefs on all parties) but with
S.Ct.Prac.R. 16.02 (requiring that arguments in an appellant’s brief be presented as
propositions of law). But this court is reluctant to strike a brief solely because it
fails to frame arguments as propositions of law. And when confronted with failure
of service, we have regularly denied motions to strike and instead allowed the
moving party additional time to file. See, e.g., State ex rel. Meigs Cty. Home Rule
Commt. v. Meigs Cty. Bd. of Commrs., 145 Ohio St.3d 1404, 2016-Ohio-804, 46
N.E.3d 699; State ex rel. McGrath v. McClelland, 132 Ohio St.3d 1493, 2012-Ohio-
3590, 972 N.E.2d 604.
       {¶ 9} Here, Judge Nusbaum discovered the service error before timely
submitting his own merit brief. And his claim to have incurred significant legal
expense appears questionable in light of the similarities between Brown’s two
briefs. While it is true that there are noticeable differences between the briefs, they
both raise the same legal arguments and largely track each other. Under these
circumstances, we deny the motion to strike.
                          Dismissal under Civ.R. 12(B)(6)
       {¶ 10} This court reviews a dismissal under Civ.R. 12(B)(6) de novo. State
ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St. 3d 315, 2016-Ohio-478,
56 N.E.3d 913, ¶ 12. In doing so, we must presume the truth of all factual
allegations in the complaint and draw all reasonable inferences in the nonmoving
party’s favor. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d
753 (1988). We will affirm a lower court’s judgment granting the motion “only
when there is no set of facts under which the nonmoving party could recover.” Ohio
Civ. Serv. Emps. Assn. at ¶ 12.
       {¶ 11} To prevail in his mandamus action, Brown must establish by clear
and convincing evidence (1) that he has a clear legal right to the requested relief,
(2) that Judge Nusbaum has a clear legal duty to provide it, and (3) that Brown lacks




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an adequate remedy in the ordinary course of the law. State ex rel. Love v.
O'Donnell, 150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3.
“[M]andamus will lie when a trial court has refused to render, or unduly delayed
rendering, a judgment.” State ex rel. Reynolds v. Basinger, 99 Ohio St.3d 303,
2003-Ohio-3631, 791 N.E.2d 459, ¶ 5. Here, the main issue before us is whether
Judge Nusbaum had a clear legal duty to issue a final order dismissing Brown’s
R.C. 2935.09 proceeding.
       {¶ 12} A trial court’s obligations with regard to citizen affidavits are
defined by R.C. 2935.09 and 2935.10. R.C. 2935.09(D) authorizes a private citizen
“who seeks to cause an arrest or prosecution” to “file an affidavit charging the
offense committed with a reviewing official for the purpose of review to determine
if a complaint should be filed by the prosecuting attorney.” We read this section in
pari materia with R.C. 2935.10, which “prescribes the procedure to be followed
once a citizen files a criminal complaint” under R.C. 2935.09. State ex rel. Bunting
v. Styer, 147 Ohio St.3d 462, 2016-Ohio-5781, 67 N.E.3d 755, ¶ 15. If the citizen
affidavit charges a felony, R.C. 2935.10 directs a judge who is reviewing the
affidavit to do one of two things: (1) “issue a warrant for the arrest of the person
charged in the affidavit” or (2) “refer the matter to the prosecuting attorney * * *
for investigation prior to the issuance of [a] warrant” if the judge “has reason to
believe that [the affidavit] was not filed in good faith, or the claim is not
meritorious.” R.C. 2935.10(A); see State ex rel. Boylen v. Harmon, 107 Ohio St.3d
370, 2006-Ohio-7, 839 N.E.2d 934, ¶ 7.
       {¶ 13} Here, Judge Nusbaum chose the second option, issuing an entry that
referred the matter to the prosecutor for investigation. Once he did so, his duty
under R.C. 2935.10 was extinguished. The statute does not contemplate a judge’s
subsequent review of the prosecutor’s investigation or decision whether to
prosecute. Nor does it require a judge to issue a final order of dismissal if a
prosecutor decides not to prosecute.




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                                January Term, 2017




       {¶ 14} In an effort to identify other sources of Judge Nusbaum’s legal duty
to enter a final order, Brown invokes case law. First, he cites numerous cases
stating that “[a] prosecuting attorney will not be compelled to prosecute a complaint
except when the failure to prosecute constitutes an abuse of discretion.” State ex
rel. Master v. Cleveland, 75 Ohio St.3d 23, 27, 661 N.E.2d 180 (1996). But none
of these cases require a trial court to review a prosecutor’s ultimate decision on
matters referred under R.C. 2935.10. Instead, they identify the legal standard that
applies in an entirely different context—namely, when a writ of mandamus is
sought to compel a prosecutor to investigate alleged misconduct. See, e.g., id.;
State ex rel. Squire v. Taft, 69 Ohio St.3d 365, 368, 632 N.E.2d 883 (1994); State
ex rel. Murr v. Meyer, 34 Ohio St.3d 46, 47, 516 N.E.2d 234 (1987). Brown is not
seeking to compel the prosecutor to investigate or to prosecute. He is seeking to
compel the trial court to issue a final order. In any event, these cases confirm that
the decision not to prosecute is “not generally subject to judiciary review.”
(Emphasis added.) Master at 27.
       {¶ 15} Brown also cites two cases in which the Fifth District Court of
Appeals reviewed trial-court decisions regarding failure to prosecute a matter
referred under R.C. 2935.10 for an abuse of discretion. In one case, the trial court
(apparently acting sua sponte) conducted a probable-cause hearing after the
prosecutor declined to prosecute. The court then entered an order declining to find
probable cause. In re Charging Affidavit of Demis, 5th Dist. Stark No. 2013 CA
00098, 2013-Ohio-5520. And in the other, the trial court denied a motion for a
probable-cause hearing after the prosecutor declined to prosecute. In re Slayman,
5th Dist. Licking No. 08CA70, 2008-Ohio-6713. In each case, the court of appeals
held that the trial court did not abuse its discretion. But neither case establishes a
trial court’s legal duty to conduct a probable-cause hearing or otherwise review a
prosecutor’s decision not to prosecute a matter referred under R.C. 2935.10. And




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in any event, the relevance of these cases is not clear, as Brown is not seeking a
probable-cause hearing or other review of the prosecutor’s decision.
       {¶ 16} Brown also fails to identify any source of a trial court’s duty to issue
a final, appealable order after a prosecutor decides not to prosecute. To the
contrary, a “prosecutor’s decision not to file a complaint is not a final, appealable
order of the trial court, and the trial court cannot be compelled to enter such a final
order.” Leavell v. Wilson, 6th Dist. Erie No. E-17-012, 2017-Ohio-1275, ¶ 14; see
also Master, 75 Ohio St.3d at 27, 661 N.E.2d 180 (the decision not to prosecute is
“not generally subject to judicial review”).
       {¶ 17} Because Brown cannot establish that Judge Nusbaum had a clear
legal duty to issue a final, appealable order, we affirm the court of appeals’
judgment dismissing Brown’s mandamus action.
                                                                  Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
                                _________________
       Steven S. Brown, pro se.
       Benson & Sesser, L.L.C., and Mark A. Preston, for appellee.
                                _________________




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