State ex rel. Ware v. Booth ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ware v. Booth, Slip Opinion No. 2024-Ohio-2102.]
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
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the opinion is published.
SLIP OPINION NO. 2024-OHIO-2102THE STATE EX REL. WARE v. BOOTH.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ware v. Booth, Slip Opinion No.
2024-Ohio-2102.]
Mandamus—Public-records requests—Motion for judgment on the pleadings
denied—Alternative writ granted and case referred to master commissioner
for full evidentiary hearing.
(No. 2023-1293—Submitted December 12, 2023—Decided June 4, 2024.)
IN MANDAMUS.
________________
DEWINE, J.
{¶ 1} This matter comes before us on a motion for judgment on the
pleadings in a public-records case. Kimani Ware has alleged that he requested
certain records from Glenn Booth, the public-information officer at the Trumbull
Correctional Institution (“TCI”) and that Booth failed to provide the records. Booth
has filed a motion for judgment on the pleadings, asserting, among other things,
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that Ware has submitted fabricated evidence to the court. We deny the motion for
judgment on the pleadings and instead grant an alternative writ. Pursuant to
S.Ct.Prac.R. 12.10, we refer this case to a master commissioner to conduct a full
evidentiary hearing on the request for a writ of mandamus. An evidentiary hearing
will allow this court not only to determine whether a writ of mandamus is proper,
but also whether Kimani Ware should be sanctioned for presenting fabricated
evidence to this court.
Disputed facts and allegations of fraud
{¶ 2} This is a classic “he said, she said” case. Ware claims that he
personally provided a request for public records to Booth on August 5, 2022.
According to the verified complaint, Booth “signed for [Ware’s] hand delivered
public records request” seeking seven records and “stated to [Ware] that he would
process [Ware’s] records request the following week.” Ware says that he never
received any records, and after writing Booth three letters to follow up, decided to
sue him, seeking a writ of mandamus and statutory damages. He attached as
Exhibit A to his complaint a “copy of the original” paper slip that Booth allegedly
signed and insists that Booth “has the original ink copy in his possession.”
{¶ 3} Booth swears that he “did not sign Relator’s Exhibit A receipt, keep[]
the original and mak[e] Relator a copy,” and denies receiving any follow-up letters
from Ware. (Emphasis in original.) According to him, the “signature, title, and
date were all hand-written by me, but not on that document.” (Emphasis in
original.) He believes that “Exhibit A is a fraudulent alteration that inmate Ware
has tampered with.” Booth further explains that he “checked Kimani Ware’s TCI
institutional inmate account and did not locate any transaction or cash slip that was
signed on or about August 5, 2022,” meaning that he “would have no reason to
have any interaction with inmate Ware on that date.” (Emphasis in original.)
According to Booth, he did not provide Ware with any records because he has
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“never seen” the public-records request supposedly affiliated with the signed
receipt “and it was never hand-delivered” to him.
Judgment on the pleadings
{¶ 4} On its face, Ware’s account seems farfetched. But none of the
arguments presented by the assistant attorney general representing Booth provides
a basis for judgment on the pleadings. The motion contends that Ware failed to
verify his mandamus complaint, see R.C. 2731.04, with a proper affidavit, see R.C.
147.542. But a review of Ware’s affidavit verifying the petition demonstrates that
it satisfies all the statutory requirements.
{¶ 5} Booth also requests judgment on the pleadings because the evidence
of delivery of Ware’s public-records request is at best “evenly balanced” and thus
“Ware has not met his heightened burden of proof.” This argument evinces a failure
to understand the pleading standard. A motion for judgment on the pleadings does
not allow a court to weigh the evidence; instead, it simply tests the sufficiency of
the complaint.1 See Rayess v. Educational Comm. for Foreign Med. Graduates,
134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18, citing State ex rel.
Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 569-570, 664 N.E.2d 931(1996). In deciding a motion for judgment on the pleadings, a court must accept
Ware’s factual allegations as true. Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322,
2010-Ohio-6036, ¶ 26 (Brown, C.J., dissenting). Thus, we deny the motion for
judgment on the pleadings.
Evidentiary hearing
{¶ 6} Ordinarily, if we deny a motion to dismiss or a motion for judgment
on the pleadings in a case like this one, we grant an alternative writ and adopt a
1. Booth’s attorney also relies on the heightened federal pleading standard established in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). However, this court has never
adopted that standard. See Maternal Grandmother, ADMR v. Hamilton Cty. Dept. of Job & Family
Servs., 167 Ohio St.3d 390, 2021-Ohio-4096, 193 N.E.3d 536, ¶ 28 (DeWine, J., concurring).
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schedule for briefing and the presentation of evidence. See, e.g., State ex rel.
Speedway, L.L.C. v. Wray, 152 Ohio St.3d 1418, 2018-Ohio-923, 93 N.E.3d 1000.
Then we decide the case based on the paper record before us. See, e.g., State ex
rel. New Wen, Inc. v. Marchbanks, 159 Ohio St.3d 15, 2020-Ohio-63, 146 N.E.3d
545, ¶ 13.
{¶ 7} But this case counsels for a different approach. Booth alleges that
Ware has committed fraud and has submitted a document styled “notice of relator’s
deceitful conduct.” The document outlines a series of cases in which courts have
found that Ware engaged in deceitful conduct similar to what is alleged here. It
also reiterates Booth’s request that we deem Ware a vexatious litigator. We have
raised concerns about Ware’s apparent abuse of the judicial process in the past.
See, e.g., State ex rel. Ware v. Dept. of Rehab. & Corr., __ Ohio St.3d __, 2024-
Ohio-1015, __ N.E.3d __, ¶ 48 (noting that record evidence “plausibly supports the
allegations that Ware routinely lied in affidavits and court filings”); see also State
ex rel. Ware v. Dept. of Rehab. & Corr., __ Ohio St.3d __, 2024-Ohio-1015, __
N.E.3d __, ¶ 58 (DeWine, J., concurring in part and dissenting in part) (collecting
cases showing that Ware often “attach[es] a fabricated public-records request to the
complaint and alleg[es] that it had been ignored”); State ex rel. Ware v. Galonski,
__ Ohio St.3d __, 2024-Ohio-1064, __ N.E.3d __, ¶ 21, fn. 2 (same); State ex rel.
Ware v. Vigluicci, 172 Ohio St.3d 1473, 2024-Ohio-202, 225 N.E.3d 1052 (“parties
ordered to address in their briefs, and permitted to present evidence as to, whether
[Ware] should be sanctioned”).
{¶ 8} Our rules authorize us to refer an original action to a master
commissioner “for the presentation of evidence, hearings, and oral argument.”
S.Ct.Prac.R. 12.10; see, e.g., Mohamed v. Eckelberry, 159 Ohio St.3d 1474, 2020-
Ohio-4080, 150 N.E.3d 956 (“Matter referred to master commissioner * * *
pursuant to S.Ct.Prac.R. 12.10, for the purpose of conducting a hearing.”). In this
case, either Booth is lying, or Ware is lying. The best way to get at the truth is to
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January Term, 2024
conduct an evidentiary hearing. At such a hearing, witnesses—including Booth
and Ware—may be called to testify and may be subject to cross-examination. And
the master commissioner will be able to make determinations about the credibility
of the witnesses.
{¶ 9} A full evidentiary hearing will allow us to decide whether a writ of
mandamus is appropriate. And if the hearing establishes that Ware is in fact
engaging in fraud, it will provide a basis for us to impose sanctions and take
appropriate measures to protect the integrity of our judicial proceedings. We may
sanction a party who files an action that we deem frivolous. See S.Ct.Prac.R.
4.03(A). We may also declare a party “who habitually, persistently, and without
reasonable cause engages in frivolous conduct” to be a vexatious litigator.
S.Ct.Prac.R. 4.03(B); see, e.g., State ex rel. Tingler v. Franklin Cty. Prosecutor’s
Office, 169 Ohio St.3d 1449, 2023-Ohio-640, 204 N.E.3d 552, ¶ 1 (Fischer, J.,
concurring); State ex rel. Johnson v. Bur. of Sentence Computation, 159 Ohio St.3d
552, 2020-Ohio-999, 152 N.E.3d 251, ¶ 20.
Conclusion
{¶ 10} We deny the motion for judgment on the pleadings. We grant an
alternative writ. The matter is referred to a master commissioner for purposes of
conducting an evidentiary hearing on the request for a writ of mandamus. This
referral encompasses any related matters including, if necessary, a recommendation
to this court for appropriate action under S.Ct.Prac.R. 4.03.
Motion denied
and alternative writ granted.
FISCHER, DONNELLY, BRUNNER, and DETERS, JJ., concur.
KENNEDY, C.J., concurs in judgment only in part and dissents in part and
would not refer the case for a hearing.
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STEWART, J., dissents from the judgment and opinion ordering an
alternative writ and would grant respondent’s motion for judgment on the
pleadings.
_________________
Kimani Ware, pro se.
Dave Yost, Attorney General, and John H. Bates, Assistant Attorney
General, for respondent.
_________________
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