IN THE SUPREME COURT OF OHIO

Transcription

1 00900 ^k%e IN THE SUPREME COURT OF OHIO NICHOLAS J. KINSTLE ) CASE NO: Relator, VS. ORIGINAL ACTION IN MADAMUS JUERGEN A. WALDICK Prosecuting Attorney ) MOTION TO DISMISS and ) MANDAMUS PETITION WITH SUPPORTING JUDGE JEFFREY L. REED ) MEMORANDUM Allen County Common Pleas Court Respondents Come now Respondents Juergen A. Waldick, Allen County Prosecutor, and Jeffrey L. Reed, Judge of the Allen County Court of Common Pleas, by Chief Assistant Prosecutor Gregory M. Antalis, and pursuant to S.Ct. Prac. R (A)(1), move the court for entry of an order dismissing Relator's Petition For The Issuance of Writ of Mandamus. Respectfully Submitted: LED MAY 28 zu i 3 CLERK F COURT REME C URT 0f 0"10 Gregory Antalis # Chief Assistant Prosecutor Allen County, Ohio 204 N. Main Street, Suite 302 Lima, H (419) (419) Fax antalislawc)wcoil.com

2 MEMORANDUM STATEMENT OF THE CASE Relator Nicholas J. Kinstle, an inmate at Pickaway Correctional Institute, filed this action May 9, 2013, against Allen County Prosecutor Juergen A. Waldick and Allen County Common Pleas Judge Jeffrey L. Reed, apparently alleging that the Respondents somehow failed to permit or allow a complaint of the Relator to be filed with the Allen County Clerk of Courts, in violation of "a clear legal duty entrusted to them." Elsewhere, in the memorandum Supporting Relator's petition, Relator seeks a writ of mandamus to compel the Allen County Clerk of Courts to accept his civil rights complaint for filing, as well as for an order for a new trial in his criminal case for which he is imprisoned, and other relief in a number of other cases. He also seeks an order barring any Allen County Judges from deciding leave of court for the filing of a complaint from him as a vexatious litigator. This relief, claims Relator, is necessary because Judge Reed is a "liar" and should be investigated. The Board of Commissioners and Judge Warren are guilty of misrepresentation and fraud against the Relator. Judges Reed and Warren are further guilty of perjury and have made materially false and fraudulent accusations against Relator. Prosecutors Waldick and Miller are "lawbreakers". Putnam County Common Pleas Judge Basinger should be investigated for "corrupt activity". Mercer County Common Pleas Judge Ingram should be barred from this action because his wife is a court reporter involved in a case. 2

3 Relator has attached to his petition his proposed 36 page civil rights complaint, based upon 42 U.S.C. 1983, which is partly typed but mostly handwritten and illegible. It is the action of the Respondents in failing to allow this complaint to be filed that is the basis of Relator's prayer for mandamus relief. STATEMENT OF THE FACTS The Relator has previously been declared to be a vexatious litigator. Therefore, leave of court is required before a vexatious litigator may initiate legal proceedings in a common pleas court. R.C (D)(1) Apparently, in April 2013, Relator submitted a civil rights complaint to the Allen County Clerk of Courts, based upon 42 U.S.C. 1983, which filing was not permitted nor accepted because leave of court was not first granted under R.C (F)(1). It is apparently the court's failure to grant Relator permission to file his complaint with the Allen County Clerk of Courts that Relator now challenges in this mandamus action. APPLICABLE LAW The extraordinary relief in a mandamus action should only be granted where the Relator establishes a clear legal right to the requested relief, a corresponding legal duty on the part of

4 the respondent to provide it, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Whitehead et al v. Sandusky County Bd. Of Commissioners et al. (2012) 133 Ohio St.3d 561. A mandamus action by law seeks to compel the performance of one or more acts specifically required by law to be performed. It will not lie to overturn discretionary decisions,- but only where an absolute unconditional obligation is required on the part of the person sought to be coerced. R.C ; R.C ; State ex rel. Stanley et al. v Cook, Supt. of Banks et al. (1946) 146 Ohio St. 348, 66 N.E.2d 207. A mandamus action is initiated by the filing of a complaint, containing a specific statement of facts upon which the claim for relief is based, and further, must be supported and supplemented by an affidavit specifying the details of the claim. Such affidavit shall be made upon personal knowledge of the affiant, setting further facts admissible in evidence, and affirmatively showing that the affiant is competent to testify to all the matters stated in the affidavit. S.Ct. Prac. R (B). The Respondent in a mandamus action is required to answer or file a motion to dismiss within 21 days of service of summons and complaint. S.Ct. Prac. R (A). ARGUMENT Relator's petition for mandamus relief is lengthy, confused, convoiuted, and rambling. 4

5 Complicating matters is that both the affidavit and the petition itself are not signed by apparent applicant Petitioner Nicholas J. Kinstle, but instead by "Nicholas-Joseph: Kinstie", described as an "Authorized Representative, Secured Party Creditor", and cites as authority UCC provision (attached), which is applicable only in UCC instrument transactions. Any party not represented by counsel is required to personally sign a mandamus petition. Such is not the case before the court at this time. S.Ct. Prac. R Nicholas J. Kinstle himself has not signed the affidavit, nor the petition, and for these reasons alone, this action should be dismissed. Further, the affidavit itself, purportedly filed under R.C which does not apply to inmate actions in the Supreme Court, is itself deficient in supplying the necessary evidentiary facts and details required by law to support the mandamus relief requested. All the purported affidavit does is verify that certain court filings were made or attempted to be made by affiant in various cases detailed therein, some of which were refused by the clerk of courts. These attempted filings are the sum total of the information obtainable from and provided in Relator's supporting affidavit. Virtually nothing is stated or declared to support any of the elements entitling Relator to mandamus relief. All relief sought in a mandamus action is required to be set forth in the complaint. S.Ct. Prac. R (B(3). Even construing Relator's "Petition" as the required complaint, the only relief requested therein is to have the Respondents be directed to allow the filing and journalization of Relator's attempted civil rights complaint. Relator declares that the 5

6 Respondents have failed to carry out a "clear legal duty entrusted to them" in denying the filing and journalization of his civil rights complaint. This argument of the Relator fails on several levels. First, Respondent Waldick as county prosecutor plays no role whatsoever in deciding if a vexatious litigator should be allowed to proceed with desired litigation, nor did he actually play any part whatsoever in preventing the filing of any complaint by Relator. R.C (F)(1) clearly authorizes only the common pleas court which initially issued the vexatious litigator declaration to grant a vexatious litigator leave to institute legal proceedings in a common pleas court. For this reason alone, Relator's petition fails to state any cause of action against Respondent Waldick. Next, and applying the three-prong test applicable to all mandamus actions, Relator's petition fails to satisfy each of the three legal requirements which must exist and be established to justify mandamus relief. Relator has shown no "clear legal right" to require that his civil rights complaint be accepted for journalization and filing. In fact, the opposite is fact true. He must first clear a judicial hurdle (court approval) before he can obtain permission to file his complaint in the common pleas court. Such court approval is a preliminary statutory determination and evaluation that the proposed complaint is not an abuse of process of the court in question, and that reasonable grounds exist to support the proposed legal proceedings. R.C (F)(1) This ultimate decision to grant leave is discretionary with the court, after full consideration of the statutory factors required by law. The court only has the duty to consider

7 such factors and render a decision. It has no mandated or required duty to forthwith render a decision favorable to the vexatious litigator simply because he has asked for such leave. Relator's remedy for denial in such circumstances is to appeal the decision denying leave to file his desired complaint to the court of appeals. Having this adequate remedy available in the ordinary course of law denies Relator the right to the mandamus relief he is requesting in this court. Finally, R. C requires all mandamus petitions to be brought in the name of the state in relation of the person applying. Relator's petition fails to comply with this procedural requirement, a failure which has been recognized as grounds for dismissal of a mandamus action. Maloney v. Court of Common Pleas of Allen County et al. (1962) 173 Ohio St. 226, 181 N.E. 2d 270; Gannon v. Gallagher, Dir. (1945) 145 Ohio St. 170, 60 N.E. 2d 666. SUMMARY AND CONCLUSION Relator, in filing and pursuing a mandamus action, must comply with a number of procedural and substantive legal requirements. Relator's petition fails almost every substantive and procedural requirement applicable to his mandamus action. His petition is not brought in the name of the state on relation of the Relator. The supporting affidavit is not signed nor sworn to by Relator but instead, by some UCC authorized representative of Relator. The contents of the affidavit itself are materially deficient in

8 affirmatively and specifically setting forth, in facts admissible into evidence, the specific details supporting his claim. Furthermore, the petition fails to establish Relator's clear legal right to the relief he is requesting. He has no clear legal right to file a complaint in an Ohio common pleas court, having previously been adjudicated to be a vexatious litigator. His right to file such a complaint is conditional and discretionary with the court which held him to be a vexatious litigator, the approval of which court is necessary to file such litigation. Relator has no clear legal right to file his civil rights complaint, and certainly no clear legal right to have the common pleas judge favorably decide that Relator be granted leave to proceed simply because he requested such leave. Certainly, in any event, Relator has shown no cause of action whatsoever against Respondent Waldick, other than a general allegation that Prosecutor Waldick, along with Respondent Judge Reed, in a conclusory but undefined way, somehow acted to prevent Relator from filing his civil rights complaint. Finally, Relator's remedy for a denial of his right to pursue his civil rights cause of action with judicial approval is to appeal such denial to the court of appeals. He has and had an available remedy in the ordinary course of law. Relator was found and determined to be a vexatious litigator for a number of reasons. This petition for mandamus relief merely illustrates some of those reasons. it is a diatribe

9 against all judicial officers and officials in Allen County, and some even in surrounding counties, who he believes had anything whatsoever to do with his multiple and continuing legal woes. His filing in this court was a last resort for him, since it did not require any initial judicial leave of court to so proceed. In any other Ohio court, he would have first had to apply for leave of court to pursue a legal proceeding such as this. Relator's petition for mandamus relief should be summarily dismissed for the reasons stated herein. Respectfully Submitted: CERTIFICATE OF SERVICE A-A Grego Antalis # N. Main Street Suite 302 Lima, OH (419) (419) antalislaw@wcoil.com I hereby certify that a copy of the foregoing Motion To Dismiss Mandamus Petition with Supporting Memorandum was served upon Relator Nicholas J. Kinstle, inmate number A , Pickaway Correctional Institute, P.O. Box 209, Orient, Ohio 43146, this 24th day of May, 2013, by ordinary U. S. first class mail, postage prepaid. Gregory. Antalis #

10 Signature by representative - UCC (A) If a person acting, or purporting to act, as a representative signs an instrument by signing eitt the name of the represented person or the name of the signer, the represented person is bound by t signature to the same extent the represented person would be bound if the signature were on a simi contract. If the represented person is so bound, the signature of the representative is the "authoriz signature of the represented person" and the represented person is liable on the instrument, whett or not identified in the instrument. (B) If a representative signs the name of the representative to an instrument and the signature is authorized signature 'of the represented person under division (A) of this section, all of the followi rules apply: (1) If the form of the signature shows unambiguously that the signature is made on behalf of t represented person who is identified in the instrument, the representative is not liable on t instrument. (2) Subject to division (C) of this section, if the form of the signature does not show unambiguou: that the signature is made in a representative capacity or if the represented person is not identified the instrument, the representative is liable on the in.strument to a holder in due course that took t instrument without notice that the representative was not intended to be liable on the instrument. W respect to any other person, the representative is liable on the instrument unless the representati proves that the original parties did not intend the representative to be liable on the instrument. (C) If a representative signs the name of the representative as drawer of a check without indication the representative status and the check is payable from an account of the represented person who identified on the check, the signer is not liable on the check if the signature is an authorized signatl of the represented person. Effective Date: