In Re: Crenshaw v. Skow, Unpublished Decision (8-20-1999)

OPINION AND JUDGMENT ENTRY This matter is before the court upon the motion of respondent, the Hon. William Skow, Administrative Judge of the Lucas County Court of Common Pleas, to dismiss the original action of respondent, Marvin Crenshaw.

Respondent argues that this action should be dismissed because both Marilyn Harrington (as an interim appointment) and Bernie Quilter were appointed to fill the Clerk of Court vacancy in accordance with the law.

"Mandamus is a writ, issued in the name of the state to an inferior tribunal, * * *, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." R.C. 2731.01 The court does not create a legal duty. That is the function of the legislature. The court's role is only to compel the performance of the duty if the relator has a clear legal right to such performance. Davis v.State ex rel. Pecsok (1936), 130 Ohio St. 411, paragraph one of the syllabus. Therefore, if the relator fails to identify the source of respondent's legal duty, he has failed to state a claim for relief in mandamus. State ex rel. Sharif v. McDonnell (Aug. 21, 1997), Cuyahoga App. No. 72705, unreported.

Relator has failed in this case to demonstrate a duty owed by Judge Skow to void the appointments of Marilyn Harrington or Bernie Quilter to the office of Clerk of Court.

Therefore, relator's petition is hereby dismissed for failure to state a claim for relief in mandamus. Costs are assessed to relator.

It is so ordered.

WRIT DISMISSED. Peter M. Handwork, P.J.

_______________________________ JUDGE

Melvin L. Resnick, J.

_______________________________ JUDGE

Mark L. Pietrykowski, J.

CONCUR.

_______________________________ JUDGE