State ex rel. Ames v. Pokorny (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ames v. Pokorny, Slip Opinion No. 2021-Ohio-2070.]
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. 2021-OHIO-2070THE STATE EX REL. AMES v. POKORNY, JUDGE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ames v. Pokorny, Slip Opinion No.
2021-Ohio-2070.]
Procedendo—Open Meetings Act—Writ of procedendo will not issue to compel
performance of a duty that the judge has already performed—Cause
dismissed.
(No. 2020-1465—Submitted April 27, 2021—Decided June 23, 2021.)
IN PROCEDENDO.
__________________
Per Curiam.
{¶ 1} Relator, Brian M. Ames, seeks a writ of procedendo ordering
respondent, Judge Thomas J. Pokorny, to rule on Ames’s motions to dismiss
counterclaims in consolidated cases pending in the Portage County Court of
Common Pleas. Because Judge Pokorny has ruled on the motions, we dismiss this
case as moot.
SUPREME COURT OF OHIO
{¶ 2} In 2019, Ames brought four actions in the Portage County Court of
Common Pleas against the Portage County Solid Waste Management District (“the
district”) and the Portage County Board of Commissioners (“the board”)—case
Nos. 2019CV00384, 2019CV00621, 2019CV00653, and 2019CV00808. Each
complaint alleges violations of the Open Meetings Act, R.C. 121.22, related to the
public business of the district conducted by the board. Judge Pokorny was assigned
to preside over each of these cases after the judge initially assigned to the cases
recused herself.
{¶ 3} On October 10, 2019, Judge Pokorny consolidated case Nos.
2019CV00384, 2019CV00621, and 2019CV00653. On January 8, 2020, the
district and the board filed amended counterclaims for declaratory judgment in the
three consolidated cases and in case No. 2019CV00808. On January 14, 2020,
Ames filed motions to dismiss both counterclaims.
{¶ 4} Ames commenced this action on December 3, 2020, seeking a writ of
procedendo to compel Judge Pokorny to rule on his motions to dismiss the
counterclaims of the district and the board. Ames alleged that his motions to
dismiss had been pending for ten months. On February 10, 2021, we dismissed
Ames’s action as to case No. 2019CV00808; we sua sponte granted an alternative
writ as to the three remaining consolidated cases and set a schedule for the
submission of evidence and briefing. 161 Ohio St.3d 1426, 2021-Ohio-303, 162
N.E.3d 809.
{¶ 5} Ames has submitted as evidence a certified copy of a judgment entry
signed by Judge Pokorny in the consolidated cases, which states: “Relator’s Motion
to Dismiss Respondents’ Counterclaim for Declaratory Judgment is DENIED.”
Also submitted as evidence is a certified copy of the docket in case No.
2019CV00384—the case number under which Judge Pokorny ordered all
documents to be filed in the consolidated cases. The docket shows that an entry
denying Ames’s counterclaims was filed on December 29, 2020.
2
January Term, 2021
{¶ 6} A writ of procedendo will issue when a court has refused to enter
judgment or has unnecessarily delayed proceeding to judgment. State ex rel.
Culgan v. Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, ¶ 7. To
be entitled to a writ of procedendo, Ames must establish (1) a clear legal right to
require Judge Pokorny to proceed, (2) a clear legal duty on the part of Judge
Pokorny to proceed, and (3) the absence of an adequate remedy in the ordinary
course of the law. See id.{¶ 7} A writ of procedendo will not issue to compel the performance of a
duty that the judge has already performed. State ex rel. Morgan v. Fais, 146 Ohio
St.3d 428, 2016-Ohio-1564, 57 N.E.3d 1140, ¶ 4. The evidence shows that Judge
Pokorny has already denied the motions for which Ames seeks to compel a ruling
in procedendo. Accordingly, we dismiss this action as moot.
Cause dismissed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Brian M. Ames, pro se.
Thomas J. Pokorny, pro se.
_________________
3