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Case No.
Verified
Petition for Peremptory Writ of
Mandamus (In the First Instance)
)
Ronald Adrine, Cleveland Municipal Court )
1200 Ontario Street
)
Cleveland, Ohio 44113
)
)
Respondents
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)
JURISDICTION
1. This court has concurrent jurisdiction along with the Supreme Court of Ohio
to hear original actions in Mandamus pursuant to Ohio Constitution, Article
IV, Section 3(B)(1)(b).
PARTIES
2. Relators have lived in Ohio for six (6) month prior to the filing of this action
and can be contacted at the above captioned locations.
3. Ronald Adrine is duly elected to hold the office of Municipal Court Judge for
the Cleveland Municipal Court; and Earle Turner is the duly elected
Cleveland Municipal Clerk of Court. Both are charged at law to carrying out
duties of their respective offices.
FACTS
4. On June 9, 2015, Relators presented notarized affidavits to The Honorable
Judge Ronald Adrine for his review pursuant to Ohio R.C. 2935.09 and
2935.10, averring felony criminal acts having been committed by Timothy
Loehmann and Frank Garmback.
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.
11. Ohio R.C. 2935.10 states:
(A) Upon the filing of an affidavit or complaint as provided by section 2935.09 of
the Revised Code, if it charges the commission of a felony, such judge, clerk, or
magistrate, unless he has reason to believe that it was not filed in good faith, or
the claim is not meritorious, shall forthwith issue a warrant for the arrest of the
person charged in the affidavit, and directed to a peace officer; otherwise he shall
forthwith refer the matter to the prosecuting attorney or other attorney charged
by law with prosecution for investigation prior to the issuance of warrant.
(B) 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.
(C) If the affidavit is filed by, or the complaint is filed pursuant to an affidavit
executed by, a peace officer who has, at his discretion, at the time of commission
of the alleged offense, notified the person to appear before the court or
magistrate at a specific time set by such officer, no process need be issued unless
the defendant fails to appear at the scheduled time.
(D) Any person charged with a misdemeanor or violation of a municipal
ordinance may give bail as provided in sections 2937.22 to 2937.46 of the Revised
Code, for his appearance, regardless of whether a warrant, summons, or notice to
appear has been issued.
(E) Any warrant, summons, or any notice issued by the peace officer shall state
the substance of the charge against the person arrested or directed to appear.
(F) When the offense charged is a misdemeanor, and the warrant or summons
issued pursuant to this section is not served within two years of the date of issue,
a judge or magistrate may order such warrant or summons withdrawn and the
case closed, when it does not appear that the ends of justice require keeping the
case open.
12. Relators are entitled, and Respondents have a legal duty in relation to the
filing of affidavits alleging felonies in good faith and with merit, to have felony
warrants issued. The Honorable Judge Ronald Adrine failed to perform and it is
apparent that no valid excuse can be given for not doing as the statute requires.
13. Relators have no other adequate remedy in the ordinary course of the law.
LEGAL ANALYSIS
As a general rule, a court speaks only through its journal. Kaine v Marion Prison
Warden (2000), 88 Ohio St. 3d 454, 455, 727 N.E 2d 907; Schenley v Kauth (1953), 160 Ohio
St. 109, 51 O.O. 30, 113 N.E.2d 625. There was no hearing or any other evidence taken
by the court. The facts in this case are therefore undisputed.
A court may grant a peremptory writ only in limited circumstances.
R.C. 2731.06provides: "When the right to require the performance of an act is clear and
it is apparent that no valid excuse can be given for not doing it, a court, in the first
instance, may allow a peremptory mandamus. * * *"
We have held "that a peremptory writ of mandamus should issue in the first instance
only when material facts are admitted disclosing that relator is entitled to relief as a
matter both of law and fact. * * * An alleged right to performance is unclear when the
facts underpinning the claimed right are not admitted and it has not been established
that no valid excuse can be given for nonperformance of the alleged duty." State, ex rel.
Temke, v. Outcalt (1977), 49 Ohio St. 2d 189, 191, 3 O.O. 3d 248, 249, 360 N.E. 2d 701, 702.
In our case at bar, the relators, pursuant to R.C. 2935.09 and 2935.10, presented to
The Honorable Judge Ronald Adrine affidavits alleging various felony offenses. R.C.
2935.09 read in para materia with R.C. 2935.10 is a shall issue statute for felony offenses.
The Court failed to issue warrants forthwith as the statute requires.
The trial Court relies on Boylen v Harmon, (2006) 107, Ohio St. 3d 370.
In Boylen the Supreme Court of Ohio determined that the procedure calling for a
probable cause hearing under Crim.R. 4(A) was applicable where affidavits are filed
with a valid criminal complaint under Crim.R. 3. It concluded Crim.R. 4(A) does not
apply where only affidavits are filed under R.C. 2935.09. Boylen, supra, at 9 & 10.
Rather the court pointed out that R.C. 2935.10 applies and affords the reviewing official
only two options: 1) issue a warrant or 2) refer the matter to the prosecutor for
investigation if there is a belief that the affidavit lacks a meritorious claim, i.e. probable
cause, or was not made in good faith. Id. at 7.See also State v. Slayman, 5th Dist. No.
08CA70, 2008-Ohio-6713, 21 andState v. Boylen, 5th Dist. No. 2005CA00164, 2006Ohio-2030, 21. R.C. 2935.10 does not provide the trial court with the third option of
summarily dismissing the matter. However, that is the course of action taken here.
State ex rel., Brown v Jeffries 2012 Ohio 1522, 2012 Ohio App. LEXIS 1328 (Ohio Ct. App.,
Ross County May 28, 2012)
It is clear that R.C. 2935.09 and R.C. 2935.10 require Judge Ronald Adrine to issue
felony warrants forthwith in light of his finding of probable cause, good faith, and
meritorious affidavits. Relators have no other remedy in the ordinary course of the law.
WHEREFORE, Relators pray that this Honorable Court, upon first instance,
allow a peremptory writ of mandamus be issued directing The Honorable Judge Ronald
Adrine to issue felony warrants against Timothy Loehmann forthwith as especially
enjoined by law; and any other and further relief that this Court deems just and
necessary in this matter.
Respectfully Submitted
___________________________
Rev. Dr. Jawanza Colvin
___________________________
Mr. Bakari Kitwana
___________________________
Mr. Joe Worthy
___________________________
Mr. Ed Little
___________________________
Dr. Rhonda Y. Williams
___________________________
Rev. Dr. R.A. Vernon
___________________________
Ms. Julia Shearson
___________________________
Ms. Rachelle Smith