[Cite as State ex rel. Ames v. Portage Cty. Bd. of Revision,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO ex rel. : PER CURIAM OPINION BRIAN M. AMES, : Relator, CASE NO. 2021-P-0027 : - vs - : PORTAGE COUNTY BOARD OF REVISION, :

Respondent. :

Original Action for Writ of Mandamus.

Judgment: Petition dismissed.

Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Relator).

Victor V. Vigluicci, Portage County Prosecutor, and Christopher J. Meduri, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).

PER CURIAM.

{¶1} This matter is before this court on the petition for a writ of mandamus filed

by relator, Brian M. Ames, against respondent, the Portage County Board of Revision (the

“Board”). The Board, in response, filed a motion to dismiss under Civ.R. 12(B)(6). Mr.

Ames opposed the motion and filed for summary judgment. Because Mr. Ames lacks

standing, the Board’s motion is granted, Mr. Ames’ motion is denied, and Mr. Ames’

petition is dismissed. {¶2} Mr. Ames brings this action requesting this court issue a writ of mandamus

against the Board. Specifically, Mr. Ames alleges the Board selected alternates to serve

in place of its officers without specifically forming a hearing board and appointed the

alternates to it, in violation of R.C. 5715.02, which states in pertinent part:

{¶3} The county treasurer, county auditor, and a member of the board of county commissioners selected by the board of county commissioners shall constitute the county board of revision, or they may provide for one or more hearing boards when they deem the creation of such to be necessary to the expeditious hearing of valuation complaints. Each such official may appoint one qualified employee from the official’s office to serve in the official’s place and stead on each such board for the purpose of hearing complaints as to the value of real property only, each such hearing board has the same authority to hear and decide complaints and sign the journal as the board of revision, and shall proceed in the manner provided for the board of revision by sections 5715.08 to 5715.20 of the Revised Code. Any decision by a hearing board shall be the decision of the board of revision.

{¶4} The Board responded to Mr. Ames’ petition with a motion to dismiss for

failure to state a claim upon which relief can be granted, specifically arguing Mr. Ames

does not have standing to bring this action.

{¶5} “[M]andamus is a writ, issued in the name of the state to an inferior tribunal,

a corporation, board, or person commanding the performance of an act which the law

specifically enjoins as a duty resulting from an office, trust, or station.” R.C. 2931.01. To

be entitled to a writ of mandamus, a party must establish, by clear and convincing

evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part

of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary

course of the law. State ex rel. Gadell-Newton v. Husted,

, 2018-

Ohio-1854, ¶6, citing State ex rel. Waters v. Spaeth,

,

.

2 {¶6} “It is well established that before an Ohio court can consider the merits of a

legal claim, the person seeking relief must establish standing to sue.” State ex rel. Ohio

Academy of Trial Lawyers v. Sheward,

(1999), citing Ohio

Contractors Assn. v. Bicking,

(1994). The private litigant must

show he or she has suffered or is threatened with “direct and concrete injury in a manner

or degree different from that suffered by the public in general, that the law in question has

caused the injury, and that the relief requested will redress the injury.”

. As this court has stated, “[u]nder the basic doctrine of standing, a person will

not be deemed a ‘real party in interest’ simply because he claims to be concerned about

an action’s subject matter; instead, he must be in a position to sustain either a direct

benefit or injury from the resolution of the case.” Lager v. Plough, 11th Dist. Portage No.

2006-P-0013,

, citing State ex rel. Village of Botkins v. Laws,

(1994).

{¶7} This general rule also applies equally to a petition for writ of mandamus; a

relator’s complaint must generally set forth facts showing the relator is a party “beneficially

interested” in the requested action. Bowers v. Ohio State Dental Bd.,

(10th Dist. 2001), citing State ex rel. Sinay v. Sodders,

(1997).

{¶8} Mr. Ames argues he has a beneficial interest in the lawful operation of the

Board and in the decisions of the Board rendered on complaints. However, he does not

argue he has a special interest, different from that suffered by the public in general, or

that he will sustain either a direct benefit or injury from the issuance of the requested writ

3 of mandamus. As such, we find Mr. Ames does not have a beneficial interest in the

requested action.

{¶9} There is, however, an exception to the common standing rules generally

referred to as the public action theory of standing, which states, “[w]here the object of an

action in mandamus and/or prohibition is to procure the enforcement or protection of a

public right, the relator need not show any legal or special individual interest in the result,

it being sufficient that the relator is an Ohio citizen and, as such, interested in the

execution of the laws of this state.”

paragraph one of the syllabus. See

also

, quoting State ex rel. Nimon v. Springdale,

(1966), quoting 35 Ohio Jurisprudence 2d (1959) 426, Section 141 (“‘“where the question

is one of public right and the object of the mandamus is to procure the enforcement of

public duty, the people are regarded as the real party and the relator need not show that

he has any * * * special interest in the result, since it is sufficient that he is interested as

a citizen or taxpayer in having the laws executed and the duty in question enforced.”’”).

{¶10} This, however, is a narrow exception to be applied when refusal of the writ

will cause serious harm to the public.

(“In light of the Supreme

Court’s general guidance on this point, Ohio appellate courts have continued to conclude

that the “public action” exception was intended to be used in a very limited manner.”).

“‘Not all alleged illegalities or irregularities are thought to be of that high order of concern.’”

, quoting Jaffe, Standing to Secure Judicial Review: Public Actions

(1961), 74 Harv.L.Rev. 1265, 1314. “‘There are serious objections against allowing mere

interlopers to meddle with the affairs of the state, and it is not usually allowed unless

under circumstances when the public injury by its refusal will be serious.’” (Emphasis

4 added.)”

at 472 quoting State ex rel. Trauger v. Nash,

,

615-616 (1902). Moreover, “[t]he vast majority of such cases involve voting rights and

ballot disputes.”

{¶11} In this case, Mr. Ames, in the words of the Supreme Court of Ohio, is a

“mere interloper.” He alleges there exists the potential for harm in that the alternates were

appointed by the Board without the creation of a hearing board. Even if there were a

violation of R.C. 5715.02 in this case, the merits of which we do not address here, this is

not a situation in which such rare and extraordinary relief is warranted.

{¶12} The issuance of a writ is not solely reliant on the wide-spread nature of the

matter. “In considering the scope of Sheward, it has been noted that ‘the term “public

right” as used in the syllabus requires more than a showing that a statute of questioned

constitutionality is of widespread public interest, or even that it potentially may affect a

large number of Ohio citizens.’” Smith v. Hayes, 10th Dist. Franklin No. 04AP-1321, 2005-

Ohio-2961, ¶9, quoting State ex rel. Ohio AFL–CIO,

,

(Moyer, J., dissenting). Indeed, in Smith, supra, the Tenth District Court of Appeals

dealt with the constitutionality of Ohio’s “Desertion of Child Under 72 Hours Old” Act,

which permits the desertion of infants within 72 hours after birth to a designated “safe

haven.” Despite the great importance and wide-spread nature of the Act, the court

nevertheless determined that a writ of mandamus was not warranted because the

potential for harm was not severe enough to be considered a “public right.”

{¶13} Likewise in this case, there is no dispute that public bodies must follow the

statutory mandates pertaining to them. Nevertheless, it is the severity of public harm that

courts must consider when deciding whether to issue extraordinary relief. We do not find

5 the potential harm in this case to be severe enough to be considered a “public right.” R.C.

5715.02 allows that “[e]ach * * * official may appoint one qualified employee from the

official’s office to serve in the official’s place”, i.e., alternates. Were the writ to issue, it

appears from the facts alleged that the change would be one in name only, converting

the presently serving alternates to members of a hearing board. Thus, we discern no

threat of serious harm to the general public, under these circumstances, that merits the

issuance of the requested writ.

{¶14} Accordingly, respondent’s motion to dismiss is granted; relator’s motion for

summary judgment is denied. Relator’s petition is dismissed.

MARY JANE TRAPP, P.J., CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., concur.

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