DocketNumber: No. CT08-0007.
Citation Numbers: 2008 Ohio 2000
Judges: HOFFMAN, PJ.<page_number>Page 2</page_number>
Filed Date: 4/25/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} Relator has a pending direct appeal before this Court which was set for oral argument on November 20, 2007. The oral argument was continued because of an ongoing investigation involving the officer who arrested Relator. The State arranged for Relator to take a polygraph examination, however, the Relator decided not to take the examination. The oral argument in the appeal has been rescheduled for April 15, 2008.
{¶ 3} This Court lacks subject matter jurisdiction over Relator's "Complaint for Declaratory Judgment: Complaint for Injunction." Those portions of Relator's complaint relative to declaratory judgment and injunction are sua sponte dismissed for lack of subject matter jurisdiction. Courts of appeals lack original jurisdiction over claims for declaratory judgment. State ex rel. Abner v. Elliott (1999),
{¶ 4} Relator essentially has three branches of requested relief: (1) to be released from incarceration; (2) to prohibit the polygraph examination; and, (3) to have the oral argument on his appeal proceed.
{¶ 5} With regard to release from imprisonment, a writ of mandamus is not a substitute for a writ of habeas corpus1 . The Supreme Court has held, "[H]abeas corpus, *Page 3
rather than mandamus, is the proper action through which to seek release from prison or other physical confinement." State ex rel. Boradenv.Hendon,
{¶ 6} As the Court in Dewey v. State,
{¶ 7} One of the basic requirements for a proper habeas corpus proceeding is that, regardless of where the prisoner was convicted, the case can only proceed in the county where he is actually incarcerated. See R.C.
{¶ 8} In the instant case, Relator is being housed at the Noble Correctional Institution which is located in Noble County, Ohio. Relator has filed this Complaint in Muskingum County; therefore, this Court lacks jurisdiction to address a habeas corpus complaint filed by Relator.
{¶ 9} We now turn to the issue of the polygraph examination. To be entitled to the issuance of a writ of mandamus, Relator must demonstrate: (1) a clear legal right to *Page 4
the relief prayed for; (2) a clear legal duty on the respondent's part to perform the act; and, (3) that there exists no plain and adequate remedy in the ordinary course of law. State ex rel. Master v.Cleveland (1996),
{¶ 10} Relator has failed to demonstrate Respondents have a clear legal duty to refrain from offering a polygraph examination. Nor has Relator demonstrated he has a clear legal right to be insulated from such an offer. Respondents simply made an offer to which Relator was free to reject and appears, in fact, to have rejected the offer. The Complaint filed fails to state any facts which would support the issuance of the extraordinary writ of mandamus as it relates to the issue of the polygraph.
{¶ 11} Finally, the Court has already rescheduled the direct appeal for oral argument. Mandamus will not issue to order an act which has already been done. The Supreme Court also held in Madsen, "Mandamus will not issue to compel an act that has already been performed." State exrel. Scruggs v. Sadler,
{¶ 12} For these reasons, the Court dismisses the Complaint for Writ of Mandamus filed by Relator.
By: Hoffman, P.J., Farmer, J. and Delaney, J. concur