IN THE SUPREME COURT OF OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO RAYSHON WATLEY, pro se Relator, : V. Case No. _r': f.. Mandamus Action THE TENTH DISTRICT COURT OF APPEALS Respondent. MOTION TO DISMISS OF RESPONDENT THE TENTH DISTRICT COURT OF APPEALS Respectfully submitted, MICHAEL DEWINE Ohio Attorney General Rayshon Watley #A Ohio State Penitentiary 878 Coitsville Hubbard Road Youngstown, Ohio Relator, pro se BRODI J. CONOVER ( )* *Lead and Trial Counsel Assistant Attorney General Constitutional Office Section 30 East Broad Street, 16th Floor Columbus, Ohio Phone: Fax: brodi.conover@ohioattomeygeneral.gov Counsel for Respondent Tenth District Court ofappeals..,; :.^ F'^^i9% {^' i i....:;i2;r r5' Y..r.. ^..., f^^ r i '^..%!.r..w/ ^ '±^^^ Z1': 0^%J`IFe. n "^ i 'i ^-i, y ^ i' r^.q f ^ n.r f5,^ ^is s y"r'r ^'.; {...Y'^ + %._._ _/ ^^i ^^ ^..J' ^r 9^^..%

2 IN THE SUPREME COURT OF OHIO RAYSHON WATLEY, pro se Relator, Case No V. : Mandamus Action THE TENTH DISTRICT COURT OF APPEALS Respondent. MOTION TO DISMISS OF RESPONDENT THE TENTH DISTRICT COURT OF APPEALS Pursuant to Sup.Ct.Prac.R and Civ.R. 12(B)(6), Respondent hereby moves this Court to dismiss Relator's petition for a writ of mandamus. A memorandum in support of this motion is attached. Respectfully submitted, MICHAEL DEWINE Ohio Atto.rney General, CVR^l J. CO OVER ( )* *Lead and Trial Counsel Assistant Attorney General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio Phone: Fax: brodi.conover@ohioattorneygeneral.gov Counsel fon Respondent Tenth District Court ofappeczls

3 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS A vexatious litigator, Relator Rayshon Watley, brings this current mandamus action seeking to compel the Respondent, the Tenth District Court of Appeals, to reverse its prior decision denying leave and asking this Court to declare Ohio's vexatious litigator statute unconstitutional for failing to provide vexatious litigators access to courts. As a vexatious litigator, Relator is required to file for leave of the court before he may file a complaint or any other pleading. See R.C This Court previously has upheld Ohio's vexatious litigator statute. This action, then, is improper under Civ.R. 12(B)(6) for failure to state a claim for which relief can be granted. Therefore, the Court should dismiss the Complaint. 1. STATEMENT OF FACTS The present action arises from the Relator's filing a motion for leave of court to file a civil action against the Franklin County Court of Common Pleas. See Compl. 5. In 2008, the Franklin County Court of Common Pleas deemed the Relator to be a vexatious litigator pursuant to R.C for filing over 75 cases in a seven-year period. Rogers v. Watley, Franklin C.P. No. 07CVH (Dec. 15, 2008), The Relator concedes his vexatious litigator status in the Complaint. Compl. 7. As a vexatious litigator, R.C requires the Relator to move the court for leave to file any action. R.C (D)(3). The Relator moved for leave to file a writ of mandamus against the Franklin County Court of Common Pleas with the Respondent, the 2

4 Tenth District Court of Appeals, on September 29, See Relator's Ex.' Respondent denied that motion for leave on October 9, 2014, through a journal entry of dismissal. Watley v. Franklin Cty. Common Pleas Court, 10th Dist. No. 14AP-767 (Oct. 9, 2014) (attached to Relator's complaint). In its decision, Respondent indicated that it was not satisfied that Relator's motion for leave was not an abuse of process of the court and was not satisfied that reasonable grounds existed for the motion. Id. The Relator filed a writ of mandamus against Respondent with this Court on October 24, In his petition, he argues that Respondent improperly denied his motion for leave, Compl. 6, that the vexatious litigator statute requiring a motion for leave is unconstitutional, Id. at 7-9, and that the decision to deny is inconsistent with this Court's decision in Mayer v. Bristow, 91 Ohio St.3d 3, 740 N.E.2d 656 (2000), Id. at The Relator asks this Court to require the Respondent to allow the Relator to file a writ of mandamus without the statutorily required motion for leave to file an action, to allow future mandamus actions to be filed when denials of leave occur, and to declare R.C (F)(2) unconstitutional. Id at II. STANDARD OF REVIEW "A court can dismiss a mandamus action under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted." State ex Nel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, 9. In order for a complaint to be dismissed, it Documents attached to or incorporated into the complaint may be considered on a motion to dismiss pursuant to Civ.R. 12(B)(6) without converting the motion into one for summary judgment. State ex rel. Crabtree v. Franklin Cty. Bd of Health, 77 Ohio St.3d 247, 249, 673 N.E.2d 1281 (1997). Here, Relator attaches both his motion for leave to file and the Respondent's order denying leave to his complaint. 3

5 must appear beyond doubt that the relator can prove no set of facts warranting him the requested writ of mandamus. Id. The court must consider and accept all factual allegations of the complaint as true and afford all reasonable inferences in the nonmoving party's favor. Id. This does not allow, however, unsupported conclusions to be admitted or to be sufficient. State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490, 633 N.E. 2d 1128 (1994). In fact, an "inmate must plead specific facts to withstand dismissal of a complaint for writ of mandamus." Id., citing State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 (1989). III. LAW AND ARGUMENT A. The Ohio vexatious litigator statute, specifically R.C (F)(2), is not unconstitutional. The Relator's contention that R.C (F)(2) is unconstitutional lacks merit. In fact, this Court-in Mayer v. Bristow-held that underlying tenants of R.C are constitutional. 91 Ohio St.3d at 16. The Court reasoned that the statute is not arbitrary or unreasonable and that it does not "deny vexatious litigators their constitutional right of access to the courts." Id. Indeed, this Court held that the statute does not prevent vexatious litigators from bringing legitimate claims; but rather, it provides a screening mechanism for the vexatious litigator to petition the court for leave to proceed. Id at 14. The vexatious litigator statute was amended two years after this Court's decision in Mayer to include, ainong other things, the courts of appeals in the statute. See R.C (F)(2). Now, vexatious litigators are required to seek leave of court in the courts of appeals, as well. Id. These amended changes do not affect the constitutionality or application of the vexatious litigator statute other than to require vexatious litigators to 4

6 seek leave of court to file any action. See, e.g., Ortiz v. Frye, 7th Dist. Frye No. 06 JE 41, 2008-Ohio-2750, 12; Huntington Natl. Bank v. Lomaz, l lth Dist. Portage No P- 0075, 2006-Ohio-3880,1( 14; Farley v. Farley, 10th Dist. Franklin Nos. 99AP-1 103, OOAP- 419, 03AP-226, 2005-Ohio-3994, 23 (noting that the statute "now applies to proceedings in the court of appeals"); Howard v. Bur. of Woy-keN's Comp., 6th Dist. Lucas No. L , 2005-Ohio-3598, 7. Here, Relator argues that R.C (F)(2) is unconstitutional because it limits his access to the courts by requiring him to file a motion for leave. Compl This Court, however, has found that the tenants of the vexatious litigator provision do not violate the constitutional right of access to the courts. Even after the 2002 amendment to the statute extending the provision to the courts of appeal, Ohio courts have indicated the changes do not affect the application. Just as the statute does not prevent vexatious litigators from bringing legitimate claims in the trial courts, the statute does not prevent legitimate claims in the courts of appeal. See Mayer, 91 Ohio St.3d at 14. The amendment merely provides for a screening mechanism in the courts of appeal in addition to the one for the trial courts. Id.; R.C (F)(2). Thus, Ohio's vexatious litigator statute is not unconstitutional. B. The Respondent applied the correct standard of review. V4'hen considering a vexatious litigator's motion for leave to file a writ of mandamus, Ohio courts apply the standard set forth in R.C (F)(2). The statute requires courts of appeal to only grant leave of court if the "court of appeals is satisfied that the proceedings or application are not an abuse of process of the court and that there are reasonable grounds for the proceedings or application." R.C (F)(2). Thus, the 5

7 standard that courts of appeals shall consider is whether the motion for leave is an abuse of process and if there are reasonable grounds for the proceedings. Here, Relator argues that the courts of appeals should utilize the standard set forth in Ohio Civil Rule of Procedure 12(B)(6) for failure to state a claim upon which relief may be granted. This lacks merit. The Ohio Revised Code is quite clear regarding the standard to analyze a vexatious litigator's motion for leave of court to file an action. The standard to be used comes from R.C (F)(2), not Civ.R. 12(B)(6). The Respondent, here, denied Relator's motion for leave because it was not satisfied that Relator's motion was not an abuse of process or that there were reasonable grounds for the proceeding. This analysis by Respondent was proper pursuant to R.C (F)(2). Because this was a proper analysis under the proper standard of review, Respondent did not err in prejudice of Relator. C. The Respondent's decision to deny Relator's motion for leave to file a complaint rests within its discretionary authority. Mandamus is an extraordinary legal remedy. State ex rel. Gerspacher v. Coffinberry, 157 Ohio St. 32, 36, 104 N.E.2d 1 (1952). To be entitled to a writ of mandamus, the relator must establish three elements: (1) a clear legal right to the requested relief; (2) a corresponding clear legal duty on the part of the respondent; and, (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Richard v. Mohr, 135 Ohio St.3d 373, 2013-Ohio-1471, 987 N.E.2d 650, 4. This burden rests on the relator. State ex. Rel Van Gundy v. Indus. Comm., 1 l 1 Ohio St.3d 395, 2006-Ohio-5854, 856 N.E.2d 951, 13. If a relator fails to establish one of these elements, the court has discretion to dismiss the action. Id. at 1. A writ of mandamus may not be used to control 6

8 judicial discretion. R.C ; State ex rel. Richfield v. Laria, 138 Ohio St.3d, Ohio-243, 4 N.E.3d 1040, 11. Indeed, mandamus will not lie to control even abused judicial discretion. State ex rel. Richfield, 138 Ohio St.3d at 11; State ex rel. Rashada v. Pianka, 112 Ohio St.3d 44, 2006-Ohio-6366, 857 N.E.2d 1220, 3. From Relator's complaint, it appears that he primarily is challenging the constitutionality of the vexatious litigator statute. However, to the extent that Relator also challenges Respondent's denial of Relator's leave to proceed, Relator fails to show that mandamus is warranted. This Court has held that an original action in mandamus is an appropriate mechanism to challenge "arbitrary denials of leave." i1%layer, 91 Ohio St.3d at 15. However, Relator has failed to show that Respondent's denial of leave was arbitrary. In fact, the denial stemmed from the determination that the court was not satisfied that the motion for leave would not be an abuse of the judicial process and that reasonable grounds for the motion did not exist. Watley v. Franklin Cty. Common Pleas Cout t, 10th Dist. No. 14AP-767 (Oct. 9, 2014). This decision rests within Respondent's discretion, and Relator has put forth no facts to establish that this exercise of discretion was arbitrary. Therefore, Relator does not have a clear legal right to have his motion for leave to proceed granted, and thus, has not established that mandamus is warranted. 7

9 IV. CONCLUSION For the foregoing reasons, Respondent the Tenth District Court of Appeals respectfully moves this Court to dismiss the Relator's extraordinary action. Respectfully submitted, MICHAEI. DEWINE Ohio Attorney General BRODI3. CONO tr ^82)* *Lead and Trial Counsel Assistant Attorney General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio Phone: Fax: Counselfor Respondent Tenth District Court of'appeals 8

10 CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing A7otion to Dismiss of Respondent the Tenth District Court of Appeals was filed with the Court and served by U.S. Mail on November 19, 2014 to the following: Rayshon Watley # A Ohio State Penitentiary 878 Coitsville Hubbard Road Youngstown, Ohio Relator Pro Se Bk&Df CONO ER( Assistant Attorney General 9