In re Appointment of Special Prosecutor , 2024 Ohio 3258 ( 2024 )

[Cite as In re Appointment of Special Prosecutor, 2024-Ohio-3258.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: Appointment of Special :
Prosecutor Regarding Actions
of City of Columbus Mayor :
Andrew Ginther on No. 24AP-127
October 10-11, 2023, : (C.P.C. No. 24MS-0042)
Movant-Appellant, : (ACCELERATED CALENDAR)
v. :
City of Columbus, Ohio et al., :
Respondents-Appellees. :
D E C I S I O N
Rendered on August 27, 2024
On brief: Phillip L. Harmon, for appellant. Argued:
Phillip L. Harmon.
On brief: Zachary M. Klein, City Attorney, Melanie R.
Tobias, Orly Ahroni, and David Pelletier, for appellee.
Argued: Orly Ahroni.
APPEAL from the Franklin County Court of Common Pleas
LELAND, J.
{¶ 1} Movant-appellant, Joe Motil, appeals from judgments of the Franklin County
Court of Common Pleas rejecting appellant’s request to appoint a special prosecutor,
granting the motion to strike filed by respondent-appellee City of Columbus, and denying
appellant’s other outstanding motions.
No. 24AP-127 2
I. Facts and Procedural History
{¶ 2} On December 20, 2023, appellant filed an R.C. 2935.09(D) private citizen
affidavit against the mayor of Columbus, Ohio Andrew Ginther (“Mayor Ginther”), alleging
he committed two crimes: obstructing official business, a violation of R.C. 2921.31, and
interfering with civil rights, a violation of R.C. 2921.45. Appellant’s affidavit included three
demands he had previously made of the city attorney: (1) recuse himself from any legal
representation of Mayor Ginther, (2) refer Mayor Ginther’s conduct to the Ohio Bureau of
Criminal Investigation, and (3) secure the appointment of a special prosecutor to review
the case. The next day, December 21, 2023, the city attorney’s office appointed a special
prosecutor to investigate the allegations against Mayor Ginther.
{¶ 3} On January 4, 2024, appellant filed a motion requesting the trial court,
pursuant to R.C. 2941.63 and its inherent authority, appoint a special prosecutor to review
Mayor Ginther’s actions on October 10 and 11, 2023. On January 5, 2024, the city filed a
motion to dismiss, reasoning appellant lacked standing to make filings in the trial court.
On January 18, 2024, the trial court denied appellant’s motion to appoint a special
prosecutor, reasoning: (1) R.C. 2941.63 does not apply to the proceedings, and (2) R.C.
2935.09 and 2935.10 do not grant party status to an affiant filing under those statutes.
{¶ 4} On January 21, 2024, appellant filed a motion for reconsideration and a
motion to transfer the case to the Franklin County Municipal Court. In reply, on
January 23, 2024, the city filed a motion to strike. The trial court granted the city’s motion
to strike and denied appellant’s motions on January 24, 2024.
{¶ 5} Appellant timely appeals.
II. Assignment of Error
{¶ 6} Appellant presents the following sole assignment of error for our review:
The trial court erred as a matter of law by failing to appoint a
special prosecutor to investigate the actions of City of
Columbus Mayor Andrew Ginther on October 10-11, 2023.
III. Analysis
{¶ 7} In this case, appellant initially sought the appointment of a special prosecutor
to review whether there was a viable criminal case to bring against Mayor Ginther. The city
attorney’s office complied with that request and appointed a special prosecutor. Then,
appellant made an additional demand—not only did he seek the appointment of a special
No. 24AP-127 3
prosecutor, but he wanted a different authority to appoint a special prosecutor more to his
liking. None of the applicable statutes, however, empowers appellant to dictate the
procedures that follow his allegations of criminal wrongdoing. As a private citizen affiant
under R.C. 2935.09(D), appellant has no ability to handpick a prosecuting attorney.
{¶ 8} Appellant’s sole assignment of error contends the trial court erred by failing
to appoint a special prosecutor. In support of this position, appellant claims R.C. 2941.63
granted the trial court jurisdiction to make such an appointment. The statute in relevant
part reads: “[t]he court of common pleas, * * * whenever it is of the opinion that the public
interest requires it, may appoint an attorney to assist the prosecuting attorney in the trial
of a case pending in such court.” R.C. 2941.63. “The statute contains two requirements:
(1) that the court finds such an appointment is required in the public interest and (2) that
the appointment is made for a pending case.” State ex rel. Williams v. Valesky, 9th Dist.
No. 3364 (Dec. 8, 1982). Here, the undisputed evidence shows there was no pending
criminal case. Thus, R.C. 2941.63 did not provide the trial court with jurisdiction to appoint
a special prosecutor. The trial court accordingly did not err in denying appellant’s request
to appoint a special prosecutor.
{¶ 9} Appellant also maintains the trial court erred in failing to conduct a hearing
to determine whether the special prosecutor had a conflict of interest. He asserts the trial
court had an “affirmative duty” to investigate any suspected conflicts of interest. State ex
rel. Corral v. Vitantonio, 8th Dist. No. 108880, 2020-Ohio-36, ¶ 13, citing State v. Gillard,
64 Ohio St.3d 304 (1992), syllabus. There is no suggestion, however, that any statute
mandates the trial court conduct such an investigation. Indeed, it is difficult to imagine any
such obligation in the present case because there was no pending case before the trial court.
There exists no authority whatsoever that requires a trial court, without a case pending, to
conduct a hearing to determine whether a special prosecutor investigating alleged criminal
activities under R.C. 2935.09(D) and 2935.10(B) had a conflict of interest. Appellant fails
to adequately support this claim of error. Accordingly, the trial court did not err by
declining to hold a hearing on the special prosecutor’s alleged conflicts of interest.
{¶ 10} Lastly, the parties disputed whether appellant was ever a party capable of
filing motions in the trial court. Appellant’s party status, however, is immaterial to the fact
No. 24AP-127 4
the trial court correctly rejected his request to appoint a special prosecutor—the only
purported error presently on appeal.
{¶ 11} Thus, appellant’s sole assignment of error is overruled.
IV. Conclusion
{¶ 12} Based on the foregoing reasons, we overrule appellant’s sole assignment of
error and affirm the judgments of the Franklin County Court of Common Pleas.
Judgments affirmed.
DORRIAN and JAMISON, JJ., concur.