State ex rel. Mason v. Griffin ( 2000 )

Lundberg Stratton, J.,

dissenting. I concur with the portion of the majority’s opinion that holds that pursuant to R.C. 2950.09(C)(2)(a), a trial court may not refuse to act after it receives the ODRC recommendation. However, I respectfully dissent from the majority’s conclusion that the court of appeals did not err by confining its judgment only to Mason’s claim that Judge Griffin had a duty to conduct a sexual-offender-classification hearing because Mason failed to properly plead for relief.

Invited Error

The majority holds that Mason invited the error he complains of because he did not specifically request the court of appeals to grant the writ of mandamus to compel Judge Griffin either to determine without a hearing that Wilson is not a sexual predator or conduct a hearing and determine whether Wilson is a sexual predator. I agree with the majority’s decision to deny the writ to force Judge Griffin to hold a hearing. But I disagree with the majority’s decision to ignore the first portion of Mason’s request, i.e., to compel Judge Griffin to comply with the mandates of R.C. 2950.09(C).

In paragraph one of his complaint, Mason states that he is “seeking a peremptory writ of mandamus compelling Honorable Burt Griffin, Respondent, to comply with the mandates of O.R.C. § 2950.09(C) and hold an evidentiaryhearing to determine whether Ralph Wilson is a sexual predator before his imminent release from prison.” (Emphasis added.)

The majority concedes that the mandates of R.C. 2950.09(C) indeed compel a trial judge either to hold a sexual-offender-classification hearing or determine that Wilson is not a sexual predator. The majority holds today that the mandates of R.C. 2950.09(C) compel the judge to act. Thus, by requesting the court to compel Judge Griffin “to comply with the mandates” of R.C. 2950.09(C), Mason did, in fact, request that the court either compel the judge to hold a hearing or rule that Wilson is not a sexual predator.

This conclusion is further illustrated in paragraph thirty-two of the complaint, where Mason states that “O.R.C. § 2950.09(C)(2)(a) requires the judge to determine whether the inmate is or is not a sexual predator. The judge may determine that an inmate is not a sexual predator without holding a hearing, or the judge may hold a hearing to determine whether the inmate is a sexual predator. Refusing to decide is not an option under the statute.” (Emphasis added.) Again, Mason requested that the judge be compelled to comply with the mandates of R.C. 2950.09(C), and this court has held today that R.C. 2950.09(C) requires exactly what Mason seeks in this case, i.e., that the judge either hold a sexual-offender-classification hearing or determine that the offender is not a sexual predator. The writ clearly requested the relief of a ruling, with or without a hearing.

Therefore, I would find that Mason did not restrict his claim to a writ of mandamus to compel Judge Griffin to conduct a hearing to determine whether Wilson is a sexual predator. That was only part of the request. The court ignores the first and foremost part of Mason’s request for a writ, that the judge “comply with the mandates” of R.C. 2950.09(C). In my opinion, any other interpretation is too technical and narrow of a reading of Mason’s request, and, in fact, ignores half of his request.

Constitutional Issues

I further dissent from the majority’s conclusion that it need not consider Judge Griffin’s alternative argument that he was not required to render a determination because the statute is unconstitutional. One of the underlying reasons for Judge Griffin’s refusal to comply with the mandates of R.C. 2950.09(C) was his belief that R.C. 2950.09(C) is unconstitutional. Therefore, granting the writ and remanding to Judge Griffin to decide whether or not Wilson is a sexual predator would be a useless act until the court of appeals addresses the issue of constitutionality.

For the reasons set forth above, I respectfully dissent from the majority’s decision and would reverse the judgment and remand to the court of appeals to rule on the constitutionality of R.C. 2950.09(C), and then, if appropriate, to grant the writ to order Judge Griffin to make a ruling as to whether Wilson is a sexual predator.

Resnick and F.E. Sweeney, JJ., concur in the foregoing dissenting opinion.