State ex rel. Gessner v. Vore , 123 Ohio St. 3d 96 ( 2009 )


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  • [Cite as State ex rel. Gessner v. Vore, 
    123 Ohio St. 3d 96
    , 2009-Ohio-4150.]
    THE STATE EX REL. GESSNER, APPELLANT, v. VORE, SHERIFF, ET AL.,
    APPELLEES.
    [Cite as State ex rel. Gessner v. Vore, 
    123 Ohio St. 3d 96
    , 2009-Ohio-4150.]
    Mandamus denied — Adequate remedy in the ordinary course of law.
    (No. 2009-0245 — Submitted August 11, 2009 — Decided August 25, 2009.)
    APPEAL from the Court of Appeals for Montgomery County, No. 22882.
    __________________
    Per Curiam.
    {¶ 1} This is an appeal from a judgment dismissing the petition of
    appellant, Mark E. Gessner, for a writ of mandamus to compel appellees, the
    sheriff-elect and the acting sheriff of Montgomery County, to provide him with
    due process of law for a June 2008 notice against trespass issued to him, barring
    him from specified courthouses.
    {¶ 2} For the following reasons, the court of appeals properly dismissed
    Gessner’s petition.
    {¶ 3} First, Gessner had an adequate remedy in the ordinary course of
    law by way of an action under Section 1983, Title 42, U.S. Code, to raise his
    federal constitutional claims. State ex rel. Mackey v. Blackwell, 
    106 Ohio St. 3d 261
    , 2005-Ohio-4789, 
    834 N.E.2d 346
    , ¶ 21. He could have filed this action in
    common pleas court and joined any state-law claims. See State ex rel. Kreps v.
    Christiansen (2000), 
    88 Ohio St. 3d 313
    , 317-318, 
    725 N.E.2d 663
    .
    {¶ 4} Second, Gessner cites no statute imposing any legal duty on
    appellees. “It is axiomatic that in mandamus proceedings, the creation of the
    legal duty that a relator seeks to enforce is the distinct function of the legislative
    branch of government, and courts are not authorized to create the legal duty.”
    SUPREME COURT OF OHIO
    State ex rel. Pipoly v. State Teachers Retirement Sys., 
    95 Ohio St. 3d 327
    , 2002-
    Ohio-2219, 
    767 N.E.2d 719
    , ¶ 18.
    {¶ 5} Finally, notwithstanding Gessner’s argument to the contrary, pro se
    litigants like him must follow the same procedures as litigants represented by
    counsel. State ex rel. Fuller v. Mengel, 
    100 Ohio St. 3d 352
    , 2003-Ohio-6448, 
    800 N.E.2d 25
    , ¶ 10.
    {¶ 6} Therefore, we affirm the judgment of the court of appeals
    dismissing Gessner’s mandamus petition.
    Judgment affirmed.
    MOYER,      C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
    O’DONNELL, LANZINGER, and CUPP, JJ., concur.
    __________________
    Mark E. Gessner, pro se.
    Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and John
    A. Cumming, Assistant Prosecuting Attorney, for appellees.
    ______________________
    2