State ex rel. Blachere v. Tyack

[Cite as State ex rel. Blachere v. Tyack, 2023-Ohio-781.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Nathanial Colin Blachere, :
Relator, :
No. 22AP-478
v. :
(REGULAR CALENDAR)
Lori M. Tyack, Franklin County Municipal :
Court Clerk et al.,
:
Respondents.
:
D E C I S I O N
Rendered on March 14, 2023
On brief: Nathanial Colin Blachere, pro se.
On brief: Zach M. Klein, City Attorney, and Alexandra N.
Pickerill, for respondent Lori M. Tyack.
On brief: G. Gary Tyack, Prosecuting Attorney, and
Martin O. Ginnan, for respondent Maryellen O'Shaughnessy.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
EDELSTEIN, J.
{¶ 1} Relator, Nathanial Colin Blachere, has filed a complaint for a writ of
mandamus requesting this court order respondents, Lori M. Tyack, Franklin County
Municipal Court Clerk ("Clerk Tyack"), and Maryellen O'Shaughnessy, Franklin County
Clerk of Courts ("Clerk O'Shaughnessy"), to accept for filing the affidavit he presented to
Clerk Tyack pursuant to R.C. 2935.09 and 2935.10. For the foregoing reasons, we adopt the
magistrate's decision, dismiss Mr. Blachere's complaint, and deny the requested writ of
mandamus.
No. 22AP-478 2
I. BACKGROUND
{¶ 2} In July 2022, Mr. Blachere mailed a document captioned "Accusation By
Affidavit to Cause Arrest and Prosecution Pursuant to Ohio Statutes 2935.09(A) and (D)
and 2935.10(B)(1)" to the office of the Franklin County Municipal Court Clerk. (Compl., Ex.
A.) In that affidavit, Mr. Blachere accused Franklin County Court of Common Pleas Judge
Kimberly Cocroft of failing to fulfill her judicial duties in his pending felony case, Franklin
C.P. No. 21CR-993,1 and sought to bring criminal misdemeanor charges against her.
Specifically, Mr. Blachere alleged that Judge Cocroft committed the second-degree
misdemeanor offenses of dereliction of duty, in violation of R.C. 2921.44(B) and (F), and
interfering with civil rights, in violation of R.C. 2921.45, by failing to dismiss "the cause
styled State v. Blacker, 21 CR 993, a criminal proceeding, for want of subject-matter
jurisdiction" and because the indictment in that case, he claimed, "fail[ed] to charge an
offense." (Compl., Ex. A at ¶ 1, 7.)
{¶ 3} Along with that affidavit, Mr. Blachere enclosed a letter directing the Franklin
County Municipal Court Clerk to file his affidavit "in your court" and to return a file-
stamped copy to him. (Compl., Ex. B.) Mr. Blachere alleges that Clerk Tyack either failed or
refused to file that affidavit and, instead, forwarded his affidavit to Clerk O’Shaughnessy,
who also did not file the document. (Compl. at 4-5.) Subsequently, Clerk O’Shaughnessy
mailed Mr. Blachere a “Notice of Requirement Deficiency” letter informing him that his
case was pending in the common pleas court and directing him to “correct [his] paperwork
to reflect the correct court and re-send.” (Compl., Ex. C.) As part of that mailing, Clerk
O’Shaughnessy returned to Mr. Blachere the affidavit and envelope he mailed to Clerk
Tyack. (Compl. at 4-5; Compl., Ex. D.)
{¶ 4} On August 5, 2022, Mr. Blachere filed a complaint for a writ of mandamus in
this court, asking us to order Clerk Tyack and Clerk O'Shaughnessy "to process"—i.e., file—
his affidavit pursuant to R.C. 2935.09 and 2935.10. (Compl. at 5.) Pursuant to Loc.R. 13(M)
of the Tenth District Court of Appeals and Civ.R. 53, we referred this matter to a magistrate
of this court on August 10, 2022. Clerk Tyack and Clerk O'Shaughnessy subsequently
1Mr. Blachere's criminal case is captioned as State v. Nathanial C. Blacker. As reflected in the trial court
docket (of which this court takes judicial notice), Judge Cocroft was originally assigned to preside over that
case but recused herself after Mr. Blachere (unsuccessfully) sought to disqualify her. Judge Kim J. Brown was
then assigned to Mr. Blachere's criminal case, which remains pending.
No. 22AP-478 3
moved to dismiss Mr. Blachere's complaint seeking a writ of mandamus pursuant to Civ.R.
12(B)(6). Mr. Blachere filed multiple written responses to those motions.
{¶ 5} On September 27, 2022, the assigned magistrate issued a decision with
findings of fact and conclusions of law, which is appended hereto. In that decision, the
magistrate determined that Clerk Tyack and Clerk O'Shaughnessy did not have a clear legal
duty to file Mr. Blachere's affidavit—the act which Mr. Blachere seeks to compel in this case.
Thus, the magistrate has recommended we grant Clerk Tyack’s and Clerk O'Shaughnessy's
motions to dismiss, dismiss the complaint pursuant to Civ.R. 12(B)(6), and deny
Mr. Blachere's complaint for a writ of mandamus.
{¶ 6} On October 10, 2022, Mr. Blachere filed an objection to the magistrate's
decision and his affidavit (with exhibits attached) in support thereof.2 In his objection, Mr.
Blachere did not challenge the magistrate's recitation of the pertinent facts.3 Instead, he
objected to the magistrate's conclusion that he failed to prove the existence of any clear legal
duty to provide the requested relief. He cited R.C. 2935.09 and 2935.10 in support.
II. ANALYSIS
{¶ 7} Mr. Blachere's objection to the magistrate's decision was timely filed under
Civ.R. 53(D)(3)(d). We are therefore required to independently review the objected-to
matters and evaluate whether "the magistrate has properly determined the factual issues
and appropriately applied the law." Civ.R. 53(D)(4)(d).
{¶ 8} Mr. Blachere has not objected to the magistrate's findings of fact.
Nonetheless, having reviewed the record and the magistrate's decision—and in the absence
of any objection thereto—we find no error in the magistrate's determinations of the facts.
Accordingly, we hereby adopt the magistrate's findings of fact in their entirety as our own.
{¶ 9} Mr. Blachere objects to the magistrate's determination that Clerk Tyack and
Clerk O’Shaughnessy did not have a clear legal duty to provide the requested relief—that is,
2 After the magistrate's decision was rendered on September 27, 2022, but before Mr. Blachere filed his
objection on October 10, 2022, he filed a motion for summary judgment. We do not address that motion
because the magistrate's substantive decision and ruling on the motion to dismiss mooted all matters raised
in the summary judgment motion.
3 Mr. Blachere also filed a "Motion for Findings of Fact and Conclusions of Law" on October 10, 2022. The
next day, we issued a journal entry denying that motion and noting that the magistrate's decision contained
findings of fact and conclusions of law.
No. 22AP-478 4
to file Mr. Blachere's affidavit relating to Judge Cocroft.4 The magistrate has recommended
we dismiss this matter under Civ.R. 12(B)(6) and deny Mr. Blachere's requested writ of
mandamus. We overrule Mr. Blachere's objection to the magistrate's conclusions of law and
adopt the magistrate's decision as our own, as explained below.
A. Standard of Review: Dismissal Under Civ.R. 12(B)(6)
{¶ 10} We review dismissals granted under Civ.R. 12 (B)(6) de novo. State ex rel.
Russell v. Yost, 10th Dist. No. 21AP-603, 2022-Ohio-4778, ¶ 12, citing Perrysburg Twp. v.
Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5.
{¶ 11} A motion to dismiss for failure to state a claim upon which relief can be
granted—i.e., a "Civ.R. 12(B)(6) motion"—tests the sufficiency of the mandamus complaint
and the materials incorporated into it. State ex rel. Welch v. Aveni, 10th Dist. No. 21AP-
501, 2022-Ohio-1038, ¶ 4; State ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews,
__Ohio St.3d__, 2022-Ohio-3990, ¶ 16, citing State ex rel. Hanson v. Guernsey Cty. Bd.
of Commrs., 65 Ohio St.3d 545, 548 (1992); State ex rel. Peoples v. Schneider, 159 Ohio
St.3d 360, 2020-Ohio-1071, ¶ 9.
{¶ 12} Dismissal of a mandamus action under Civ.R. 12(B)(6) is appropriate if, after
presuming all factual allegations in the mandamus complaint to be true and drawing all
reasonable inferences in the relator's favor, it appears beyond doubt that the relator can
prove no set of facts entitling the relator to a writ of mandamus. State ex rel. A.N. v.
Cuyahoga Cty. Prosecutor's Office, 165 Ohio St.3d 71, 2021-Ohio-2071, ¶ 8, citing State ex
rel. McKinney v. Schmenk, 152 Ohio St.3d 70, 2017-Ohio-9183, ¶ 8. However,
"unsupported legal conclusions are not considered admitted when determining whether to
grant extraordinary relief and are insufficient to withstand a motion to dismiss." State ex
rel. Bell v. Pfeiffer, 10th Dist. No. 10AP-490, 2011-Ohio-2539, ¶ 13.
B. Standard for Mandamus
{¶ 13} The purpose of a writ of mandamus is to " 'compel the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust[,] or station.' "
4 In his mandamus complaint, Mr. Blachere does not allege or provide evidence showing that he ever
attempted to file his affidavit with the Franklin County Clerk of Courts. Furthermore, it is not entirely clear
from his objection whether Mr. Blachere is disputing the magistrate's decision as it relates to Clerk
O'Shaughnessy.
No. 22AP-478 5
State ex rel. Timson v. Shoemaker, 10th Dist. No. 02AP-1037, 2003-Ohio-4703, ¶ 16,
quoting State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 166 (1977).
{¶ 14} To be entitled to a writ of mandamus, a relator must prove three things by
clear and convincing evidence: (1) a clear legal right to the requested relief; (2) a clear legal
duty on the part of one or both of the respondents to provide it; and (3) the lack of an
adequate remedy in the ordinary course of the law. State ex rel. Olmstead v. Forsthoefel,
163 Ohio St.3d 25, 2020-Ohio-4951, ¶ 7, citing State ex rel. Love v. O'Donnell, 150 Ohio
St.3d 378, 2017-Ohio-5659, ¶ 3. " 'Clear and convincing evidence' is a measure or degree of
proof that is more than a preponderance of the evidence but less than the beyond-a-
reasonable-doubt standard required in a criminal case; clear and convincing evidence
produces in the trier of fact's mind a firm belief of the fact sought to be established." State
ex rel. Ware v. Crawford, 167 Ohio St.3d 453, 2022-Ohio-295, ¶ 14, citing State ex rel.
Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, ¶ 14.
{¶ 15} "Parties seeking extraordinary relief bear a more substantial burden in
establishing their entitlement to this relief." State ex rel. Doner v. Zody, 130 Ohio St.3d
446, 2011-Ohio-6117, ¶ 56. "In mandamus cases, this heightened standard of proof is
reflected by two of the required elements—a 'clear' legal right to the requested extraordinary
relief and a corresponding 'clear' legal duty on the part of the respondents to provide it." Id.C. Mr. Blachere is not entitled to the requested writ of mandamus.
{¶ 16} It is clear from the record Mr. Blachere mailed his affidavit to Clerk Tyack
and requested that it be filed in the Franklin County Municipal Court. No one disputes that
Clerk Tyack did not file it. Mr. Blachere seeks a writ of mandamus compelling Clerk Tyack
to "file [his] affidavit and follow the process and procedure as outlined" in R.C. 2935.09 and
2935.10. (Compl. at 5.) Mr. Blachere bears the burden to plead and prove facts showing that
his affidavit was submitted in accordance with these provisions and that Clerk Tyack had a
clear legal duty to file it.
{¶ 17} In his objection, Mr. Blachere contends that neither statutory provision
absolves the clerks "of their ministerial duty 'to accept for filing any paper presented to
[them].' " (Obj. to Mag.'s Decision at 2.) In support of that assertion, Mr. Blachere relies
largely upon State ex rel. Kess v. Antonoplos, 5th Dist. No. 16CAD030010, 2017-Ohio-305,
¶ 7-12. Mr. Blachere's reliance on Kess is misplaced, however, because the facts and law of
No. 22AP-478 6
that case are not analogous to those presented here. Kess involved a clerk's refusal to file a
pleading—objections to a magistrate's decision—in a pending case. Id. at ¶ 1-2. In defending
against the mandamus complaint, the Delaware County Clerk of Courts argued she had no
clear legal duty to accept the pleading because it was untimely filed. See id. at ¶ 9. Upon
review, the appellate court concluded the clerk had a clear legal duty to accept all papers
presented for filing, and granted the writ. Id. at ¶ 11-14.
{¶ 18} In stark contrast, here, Mr. Blachere seeks to compel the filing of his own
affidavit charging another person with a criminal offense. The obligations of clerks of courts
(as well as judges, magistrates, and prosecutors) regarding such citizen affidavits are
defined by R.C. 2935.09 and 2935.10.
1. R.C. 2935.09(D) does not impose a clear legal duty upon a clerk of
courts to file an affidavit it receives in the mail from a private citizen
charging a misdemeanor offense.
{¶ 19} "R.C. 2935.09(D) authorizes a private citizen 'who seeks to cause an arrest or
prosecution' to 'file an affidavit charging the offense committed with a reviewing official for
the purpose of review to determine if a complaint should be filed by the prosecuting
attorney.' " State ex rel. Brown v. Nusbaum, 152 Ohio St.3d 284, 2017-Ohio-9141, ¶ 12,
quoting R.C. 2935.09(D).
{¶ 20} R.C. 2935.09(A) defines "reviewing official" to mean "a judge of a court of
record, the prosecuting attorney * * * or a magistrate." In this case, Mr. Blachere mailed his
affidavit directly to the Franklin County Municipal Court Clerk. We agree with the
magistrate's determination that a clerk of courts is not a "reviewing official" under this
definition. See also State ex rel. Morrison v. Smith, 5th Dist. No. 15-CA-46, 2016-Ohio-
623, ¶ 4. Thus, we conclude Mr. Blachere did not file his affidavit "with a reviewing official"
as contemplated under R.C. 2935.09(D).
{¶ 21} Nonetheless, the second sentence of R.C. 2935.09(D) permits a private
citizen to file the affidavit with the clerk of courts "before or after the normal business hours
of the reviewing officials if the clerk's office is open at those times." When a clerk receives
such affidavit during the reviewing official's non-business hours, the last sentence of R.C.
2935.09(D) requires the clerk to "forward it to a reviewing official when the reviewing
official's normal business hours resume."
No. 22AP-478 7
{¶ 22} The plain language of R.C. 2935.09(D) only contemplates clerk involvement
if the affidavit is filed before or after the normal business hours of a reviewing official. See
Morrison at ¶ 7. We thus find that, under R.C. 2935.09(D), a clerk's clear legal duty to file
and forward an affidavit the clerk receives from a private citizen only arises when: (1) the
affidavit is received during a reviewing official's non-business hours; and (2) the clerk is
open during the reviewing official's non-business hours. Mr. Blachere does not allege in his
mandamus complaint that the affidavit was received by Clerk Tyack (or Clerk
O'Shaughnessy) during the non-business hours of any "reviewing officials." Nothing in the
record indicates when Clerk Tyack received Mr. Blachere's mailed affidavit. Even if
Mr. Blachere could prove when Clerk Tyack received the affidavit, he neither alleged nor
presented evidence of the "non-business hours" of any "reviewing officials."
{¶ 23} We further find that R.C. 2935.09(D) does not impose a clear legal duty on
a clerk of court to file an affidavit it receives in the mail from a private citizen charging a
misdemeanor offense. Hinging a clerk's duties on whether it receives a citizen's affidavit
during the "normal business hours" of a "reviewing official" only makes sense if in-person
filing is required. But, in-person filing is not required by the statute. Nor is it the norm for
the world in which our legal system operates. With that in mind, another question presents:
how might a private citizen file an affidavit with a "judge of a court of record"—a "reviewing
official" under R.C. 2935.09(A)—if not by submitting it to the clerk of that court? This
question begets another: is the concept of "filing" in R.C. 2935.09(D) really just
commensurate with that of "submitting?" Of course, we are bound by the statute as enacted
by the Ohio legislature. Our bemusement with the procedures described in R.C. 2935.09(D)
is offered only to crystallize our point that, other than in the limited circumstance described
above, a clerk's legal duty under R.C. 2935.09(D) is not clear when a private citizen seeks
to "file" an affidavit by mailing it directly to the clerk.5
5 The prosecuting attorney is a "reviewing official" with whom a citizen can file an affidavit. See R.C.
2935.09(A) and (D). Often, clerks and judges who receive a citizen's affidavit will forward it to the
prosecuting attorney for investigation (even if they are not statutorily required to do so). See, e.g., State ex
rel. Whittaker v. Lucas Cty. Prosecutor's Office, 164 Ohio St.3d 151, 2021-Ohio-1241, ¶ 3 (clerk did not file
relator’s mailed affidavit but sent it to the prosecutor's office for review); Nusbaum, 2017-Ohio-9141, at
¶ 2-3 (after relator filed affidavit in the common pleas court, a judge issued an entry referring the affidavit
to the prosecuting attorney for investigation).
No. 22AP-478 8
{¶ 24} Since Mr. Blachere cannot establish a clear legal duty on the part of Clerk
Tyack or Clerk O'Shaughnessy to file (or forward) his affidavit under R.C. 2935.09(D), he
has failed to satisfy his "substantial burden in establishing [his] entitlement to this relief."
See Doner, 2011-Ohio-6117, at ¶ 56. Accordingly, we find that Mr. Blachere's mandamus
complaint fails to state a claim upon which relief may be granted.
2. R.C. 2935.10(B) imposes no duty on a clerk of courts when the private
citizen's affidavit alleges a misdemeanor.
{¶ 25} R.C. 2935.10 prescribes the procedure to be followed once a private citizen
files an affidavit charging an offense. Mr. Blachere also cites to R.C. 2935.10 as imposing a
duty on the clerks in this case. We disagree.
{¶ 26} If the citizen affidavit charges a felony, R.C. 2935.10(A) requires "such judge,
clerk, or magistrate" to either "issue a warrant for the arrest of the person charged in the
affidavit," or "refer the matter to the prosecuting attorney * * * for investigation prior to
the issuance of [a] warrant" if the "judge, clerk, or magistrate has reason to believe that [the
affidavit] was not filed in good faith, or the claim is not meritorious."
{¶ 27} If the affidavit charges a misdemeanor offense—as did Mr. Blachere's
affidavit here—R.C. 2935.10(B) provides that "such judge, clerk, or magistrate may" either
issue an arrest warrant or a summons for the subject of the affidavit to appear. (Emphasis
added.) "[S]tatutory use of the word 'may' is generally construed to make the provision in
which it is contained optional, permissive, or discretionary." See Dorrian v. Scioto
Conservancy Dist., 27 Ohio St.2d 102, 107 (1971). Thus, a clerk's duty to issue a summons
or a warrant on a misdemeanor charge is discretionary.
{¶ 28} Of note, this provision does not require a referral to the prosecutor if the
"judge, clerk, or magistrate," using their discretion, declines to issue a warrant or summons
in connection with the misdemeanor allegation. See R.C. 2935.10(B); In re Affidavit by
Accusation, 2d Dist. No. 2021-CA-22, 2021-Ohio-4502, ¶ 6.
{¶ 29} Accordingly, we find that no clear legal duty under R.C. 2935.10 arose in this
case. To the extent that Mr. Blachere seeks to compel the clerks to perform a discretionary
act, mandamus will not lie. See, e.g., State ex rel. AWMS Water Solutions, L.L.C. v.
Simmers, 10th Dist. No. 19AP-582, 2020-Ohio-4798, ¶ 7.
No. 22AP-478 9
{¶ 30} Having conducted an examination of the magistrate's decision and an
independent review of the record, pursuant to Civ.R. 53(D)(4)(d), we find the magistrate
properly applied the relevant law to the salient facts when it reached the conclusion that
this case must be dismissed under Civ.R. 12(B)(6) because Mr. Blachere failed to establish
that either Clerk Tyack or Clerk O'Shaughnessy had a clear legal duty under R.C. 2935.09
and 2935.10 to file his affidavit.
III. CONCLUSION
{¶ 31} Mr. Blachere has not established that he is entitled to a writ of mandamus.
Accordingly, we overrule Mr. Blachere's objection; adopt the magistrate's decision,
including the findings of fact and conclusions of law contained therein, as our own; grant
the motions to dismiss of respondents, Lori M. Tyack, Franklin County Municipal Court
Clerk, and Maryellen O'Shaughnessy, Franklin County Clerk of Courts; deny the writ; and
dismiss this action in mandamus.
Objection overruled;
motions to dismiss granted; writ of mandamus denied.
BEATTY BLUNT, P.J. and LUPER SCHUSTER, J., concur.
No. 22AP-478 10
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Nathanial Colin Blachere, :
Relator, :
v. : No. 22AP-478
Lori M. Tyack et al., : (REGULAR CALENDAR)
Respondents. :
__________________________________________
MAGISTRATE'S DECISION
Rendered on September 27, 2022
Nathanial Colin Blachere, pro se.
Zachary M. Klein, City Attorney, and Alexandra N. Pickerill,
for respondents.
IN MANDAMUS
ON RESPONDENTS' MOTION TO DISMISS
{¶ 32} Relator, Nathanial Colin Blachere, has filed this original action seeking the
issuance of a writ of mandamus ordering respondents, Lori M. Tyack, the Clerk of the
Franklin County Municipal Court, and Maryellen O'Shaughnessy, Franklin County Clerk of
Courts, to process relator's charging affidavit pursuant to R.C. 2935.09 and 2935.10.
Findings of Fact:
{¶ 33} 1. At the time of the filing of this mandamus action, on August 5, 2022, relator
was an inmate being held at the Franklin County Correction Center at 370 S. Front Street
in Columbus, Ohio.
{¶ 34} 2. Respondent Tyack is the Clerk of the Franklin County Municipal Court.
No. 22AP-478 11
{¶ 35} 3. Respondent Maryellen O'Shaughnessy is the Franklin County Clerk of
Courts.
{¶ 36} 4. In his complaint in the instant action, relator alleges that on or about
July 5, 2022, he mailed to Tyack a document captioned "Accusation By Affidavit To Cause
Arrest And Prosecution Pursuant To Ohio Statutes 2935.09(A) and (D) and 2935.10(B)(1)."
(Compl. at 2.) Relator alleges that Tyack either failed to or refused to file the affidavit, but
instead forwarded it to O'Shaughnessy, who also did not file the affidavit. On or about July
20, 2022, relator received a document captioned "Notice of Requirement Deficiency" from
O'Shaughnessy to which was attached the document relator sent to Tyack and the envelope
in which it was contained. (Compl. at 2.) Relator alleges that respondents failed to act in
accord with their statutory duties under R.C. 2935.09 and 2935.10.
{¶ 37} 5. On August 26, 2022, Tyack filed a motion to dismiss the complaint for
failure to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6).
{¶ 38} 6. On September 2, 2022, O'Shaughnessy filed a motion to dismiss the
complaint for failure to state a claim upon which relief can be granted pursuant to Civ.R.
12(B)(6).
{¶ 39} 7. Relator responded to Tyack's motion to dismiss on September 8, 2022 and
O'Shaughnessy's motion to dismiss on September 23, 2022.
Discussion and Conclusions of Law:
{¶ 40} A motion to dismiss for failure to state a claim is procedural and tests the
sufficiency of the complaint itself and any attached documents. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992), citing Assn. for Defense of
Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). Attachments to the
complaint are considered part of the complaint for all purposes. Civ.R. 10(C).
{¶ 41} A court must presume all factual allegations contained in the complaint to be
true and make all reasonable inferences in favor of the nonmoving party. Red Foot Racing
Stables v. Polhamus, 10th Dist. No. 19AP-390, 2020-Ohio-592, ¶ 11, citing State ex rel.
Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, ¶ 5. "Before the court may dismiss the
complaint, it must appear beyond doubt from the complaint that the plaintiff can prove no
set of facts entitling the plaintiff to recovery." Jones v. Dann, 10th Dist. No. 09AP-352,
2009-Ohio-5976, ¶ 9, citing O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio
No. 22AP-478 12
St.2d 242 (1975), syllabus. Provided there is a set of facts, consistent with the complaint,
under which the complaining party could recover, a court may not grant a motion to dismiss
for failure to state a claim. Prime Invests., LLC v. Altimate Care, LLC, 10th Dist. No. 20AP-
526, 2022-Ohio-1181, ¶ 23, citing York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145
(1991). However, a court need not accept as true any unsupported and conclusory legal
propositions presented in the complaint. Bullard v. McDonald's, 10th Dist. No. 20AP-374,
2021-Ohio-1505, ¶ 11, citing Morrow v. Reminger & Reminger Co. LPA, 183 Ohio App.3d
40, 2009-Ohio-2665, ¶ 7 (10th Dist.). In order for a court to issue a writ of mandamus, a
relator must establish (1) the relator has a clear legal right to the relief requested, (2) the
respondents are under a clear legal duty to provide the relief, and (3) the relator has no
plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v.
McMonagle, 6 Ohio St.3d 28, 29 (1983), citing State ex rel. Harris, v. Rhodes, 54 Ohio St.
2d 41, 42 (1978). "A complaint in mandamus states a claim if it alleges 'the existence of the
legal duty and the want of an adequate remedy at law with sufficient particularity so that
the respondent is given reasonable notice of the claim asserted.' " State ex rel. Bush, 42
Ohio St.3d 77, 80 (1989), quoting State ex rel. Alford, v. Willoughby, 58 Ohio St. 2d 221,
224 (1979).
{¶ 42} R.C. 2935.09 and 2935.10 govern the filing of an affidavit charging a criminal
offense by a peace officer or a private citizen and provide the procedures to be followed
upon the filing of such affidavit. State ex rel. Bunting v. Styer, 147 Ohio St.3d 462, 2016-
Ohio-5781, ¶ 15 ("R.C. 2935.09 must be read in pari materia with R.C. 2935.10, which
prescribes the procedure to be followed once a citizen files a criminal complaint."). R.C.
2935.09(C) prescribes the procedure to be followed by a peace officer in seeking to cause
an arrest or prosecution by affidavit, providing as follows: "A peace officer who seeks to
cause an arrest or prosecution under this section may file with a reviewing official or the
clerk of a court of record an affidavit charging the offense committed."
{¶ 43} R.C. 2935.09(D) governs the procedure for a private citizen seeking to cause
an arrest or prosecution by affidavit, providing as follows:
A private citizen having knowledge of the facts who seeks to
cause an arrest or prosecution under this section may file an
affidavit charging the offense committed with a reviewing
official for the purpose of review to determine if a complaint
No. 22AP-478 13
should be filed by the prosecuting attorney or attorney
charged by law with the prosecution of offenses in the court or
before the magistrate. A private citizen may file an affidavit
charging the offense committed with the clerk of a court of
record before or after the normal business hours of the
reviewing officials if the clerk's office is open at those times. A
clerk who receives an affidavit before or after the normal
business hours of the reviewing officials shall forward it to a
reviewing official when the reviewing official's normal
business hours resume.
In enacting R.C. 2935.09, it was the intent of the General Assembly to require "private
citizens' affidavits [to] be reviewed by judges, magistrates, or prosecutors." State v.
Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, ¶ 7. Thus, " '[a] private citizen may initiate
the arrest or prosecution of a person charged with committing an offense if the citizen
complies with the requirements of R.C. 2935.09(D).' " Jones v. Thomas, 10th Dist. No.
19AP-401, 2019-Ohio-5000, ¶ 10, quoting State ex rel. Brown v. Jeffries, 4th Dist. No.
11CA3275, 2012-Ohio-1522, ¶ 6, citing Mbodji at ¶ 6. R.C. 2935.09(A) defines a "reviewing
official" as "a judge of a court of record, the prosecuting attorney or attorney charged by
law with the prosecution of offenses in a court or before a magistrate, or a magistrate."
{¶ 44} R.C. 2935.10(B) governs the actions that a judge, clerk, or magistrate may
take upon receipt of an affidavit seeking to charge an individual with a misdemeanor
offense, providing as follows:
If the offense charged is a misdemeanor or violation of a
municipal ordinance, such judge, clerk, or magistrate may:
(1) Issue a warrant for the arrest of such person, directed to
any officer named in section 2935.03 of the Revised Code but
in cases of ordinance violation only to a police officer or
marshal or deputy marshal of the municipal corporation;
(2) Issue summons, to be served by a peace officer, bailiff, or
court constable, commanding the person against whom the
affidavit or complaint was filed to appear forthwith, or at a
fixed time in the future, before such court or magistrate. Such
summons shall be served in the same manner as in civil cases.
"When R.C. 2935.09 is read in pari materia with R.C. 2935.10, it is clear that the mere
filing of an affidavit claiming that a crime was committed does not require the issuance of
an arrest warrant." Hillman v. Larrison, 10th Dist. No. 18AP-896, 2019-Ohio-2537, ¶ 13,
citing State ex rel. Strothers v. Turner, 79 Ohio St.3d 272, 273 (1997).
No. 22AP-478 14
{¶ 45} Here, relator argues respondents were under a clear legal duty to follow the
procedures in R.C. 2935.09 and 2935.10. Relator asserts that he completed an affidavit as
provided under the statutes and "then attempted to file this Affidavit with a reviewing
official: Respondent Tyack." (Compl. at 4.) Relator also describes O'Shaughnessy as "an
additional reviewing official." (Compl. at 4.) Respondents argue that relator cannot
establish respondents had a clear legal duty under R.C. 2935.09 and 2935.10 to perform
the requested action.
{¶ 46} Presuming all the facts of the complaint to be true, the plain language of the
statute reveals that respondents did not have a legal duty to perform the action in question.
First, respondents, as clerks of court, are not judges of a court of record, prosecuting
attorneys or attorneys charged by law with the prosecution of offenses in a court or before
a magistrate, or magistrates. Therefore, respondents are not "reviewing official[s]" within
the meaning of R.C. 2935.09(A). See State ex rel. Evans v. Tieman, 157 Ohio St.3d 99, 2019-
Ohio-2411, ¶ 12. Next, relator is not a peace officer, and is consequently unable to utilize
R.C. 2935.09(C) by filing a charging affidavit with either a "reviewing official or the clerk of
a court of record." R.C. 2935.09(C). Instead, respondent, as a private citizen, must follow
the dictates of R.C. 2935.09(D).
{¶ 47} R.C. 2935.09(D) contains a bifurcated process for a private citizen seeking to
file a charging affidavit. First, a private citizen may file a charging affidavit with a reviewing
official. Second, a private citizen may file a charging affidavit with a clerk of a court of record
"before or after the normal business hours of the reviewing officials if the clerk's office is
open at those times." (Emphasis added.) R.C. 2935.09(D). Under this framework, a private
citizen may only file a charging affidavit with a clerk outside of the normal business hours
of the reviewing official. State ex rel. Morrison v. Smith, 5th Dist. No. 15-CA-46, 2016-Ohio-
623, ¶ 9 (stating that "the clerk's legal duty to file an affidavit only arises when the clerk
receives an affidavit from a private citizen during a reviewing official's non-business
hours"). See also Hicks v. State, 12th Dist. No. CA2018-04-022, 2018-Ohio-5298, ¶ 9
(finding R.C. 2935.09 was not violated where charging affidavit was "filed with a clerk of
courts and provided both to a judge and to the office of the Ohio Attorney General"). This
is made clear by the final sentence of the statute, which states that a clerk who receives a
charging affidavit "before or after the normal business hours of the reviewing officials shall
No. 22AP-478 15
forward it to a reviewing official when the reviewing official's normal business hours
resume." R.C. 2935.09.
{¶ 48} Thus, a clerk has no duty to act unless the clerk receives the affidavit either
before or after the normal business hours of the reviewing official, at which point the clerk
must forward it to a reviewing official upon the resumption of the reviewing official's
normal business hours. Relator does not allege in his complaint that the affidavit was
received by the clerk before or after the reviewing official's normal business hours. Relator
also does not allege that he attempted to present the affidavit to a reviewing official, by
addressing the mailing containing the affidavit to a reviewing official or otherwise.
Therefore, relator has failed to demonstrate that respondents are under a clear legal duty
to provide the requested relief.
{¶ 49} Finally, R.C. 2935.10 does not compel a different result. Reading
R.C. 2935.10 in pari materia with R.C. 2935.09, as is required, a clerk is only permitted to
issue a warrant or summons upon a private citizen's charging affidavit if directed to do so
by a reviewing official. See Morrison at ¶ 12 (finding in mandamus action that clerk's duty
under R.C. 2935.10 did not arise because reviewing authority did not find the claim to be
meritorious and filed in good faith); Mbodji at ¶ 21. Therefore, presuming all factual
allegations contained in the complaint to be true and making all reasonable inferences in
favor of the nonmoving party, relator has failed to state a claim upon which relief can be
granted.
{¶ 50} Accordingly, it is the decision and recommendation of the magistrate that the
complaint should be dismissed and the requested writ denied.
/S/MAGISTRATE
JOSEPH E. WENGER IV
No. 22AP-478 16
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).