Opinion
No. 92-901
Submitted May 18, 1993 —
Decided August 11, 1993.
IN MANDAMUS.
Konrad Kuczak, relator herein, who represents defendant Leonard L. Auble in the underlying traffic case, seeks a writ of mandamus against Shirley Strickland Saffold, Judge of the Cleveland Municipal Court, and Benny Bonnano, Clerk of the Cleveland Municipal Court, respondents herein.
Auble, a truck driver, was cited for driving an overweight and oversized vehicle on January 8, 1992, in violation of R.C. 5577.02 and Cleveland Codified Ordinances 439.07, respectively. Auble appeared for trial on February 6, 1992 with Kuczak, who resides in Dayton.
Saffold, to whom the case was assigned, informed the parties on that date that the police officer, who had cited Auble and was to testify, called the court, but not Saffold, and informed court personnel that he had been assigned to guard President Bush, who was in Cleveland that day. Saffold continued the case and offered Kuczak the opportunity to choose the date and time of trial. Kuczak, however, objected to the continuance, requested a dismissal, and refused to cooperate in setting a new trial date. Saffold continued the case until February 13, 1992.
On the next day, February 7, Kuczak mailed to the trial court a written objection to the continuance, a motion to dismiss, and a motion to continue the case beyond February 13, because Kuczak was scheduled to argue an appeal in the United States Seventh Circuit Court of Appeals in Chicago then. Kuczak apparently did not check with Bonnano or Saffold to see that they received these documents.
Saffold denies receiving a motion for continuance as of February 13. According to the date stamps on copies filed with Clerk Bonnano, Bonnano received the documents at 8:34 a.m. on February 13. In any event, since Kuczak and Auble were not present on February 13, Saffold issued a capias for Auble's arrest.
Furthermore, Saffold has denied all motions filed by Kuczak and has continued the capias in force until Kuczak reschedules the trial of the underlying cases and arranges to lift the capias. Bonnano has delivered a copy of the municipal court's rules to Kuczak.
In the complaint for a writ of mandamus, Kuczak seeks to require Bonnano to:
(1) Note the filing of all pleadings under proper date;
(2) provide Kuczak with a copy of all local rules of the Cleveland Municipal Court; and
(3) supply Kuczak with copies of any and all rulings, orders, or other documents indicating activity in the underlying case.
Kuczak seeks to require Saffold to:
(1) Take notice of all pleadings filed by Kuczak;
(2) refrain from ex parte communications with witnesses in the underlying traffic case;
(3) refrain from granting continuances based on ex parte oral motions from witnesses;
(4) rule on Auble's oral motions to dismiss presented in court on February 6, 1992;
(5) grant Auble's oral motions to dismiss made in court on February 6, 1992;
(6) rule on Auble's written motions filed with Bonnano on or before February 13, 1992;
(7) grant Auble's motions filed with Bonnano on or before February 13, 1992;
(8) order the capias issued for the arrest of Auble null and void and held for naught;
(9) recognize Kuczak's appearance; and
(10) supply Kuczak with copies of any and all rulings, orders, or other documents indicating activity on this matter.
Saffold and Bonnano initially moved to dismiss the complaint, but we overruled the motion and ordered Saffold and Bonnano to show cause why the writ should not be granted.
Konrad Kuczak, pro se. Danny R. Williams, Director of Law, and Joseph J. Jerse, Assistant Director of Law, for respondents.
According to State ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus:
"In order to grant a writ of mandamus, a court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law. ( State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41 [8 O.O.3d 36, 374 N.E.2d 641].)"
Under State ex rel. Tillimon v. Weiher (1992), 65 Ohio St.3d 468, 605 N.E.2d 35, the court presumes the regularity of trial court proceedings and will not issue a writ of mandamus to compel the observance of laws generally. Moreover, under that case and R.C. 2731.03, mandamus cannot control judicial discretion.
As to Bonnano, Kuczak, in two of the prayers for relief, seeks to require Bonnano to follow laws generally. As to the remaining prayer, Bonnano has complied by providing Kuczak with a copy of the local rules. Thus, we deny a writ requiring Bonnano to perform the requested acts.
As to Saffold, Kuczak, for the most part, seeks to require her to follow laws generally. Furthermore, she has complied with Kuczak's request that she rule on all the motions. Concerning Kuczak's request that she grant his motions, we cannot control her discretion. In any event, he has an adequate remedy at law by appealing her rulings.
The final request we address is Kuczak's demand that Saffold lift the capias. We conclude that she has no clear legal duty to do this.
R.C. 2937.29 authorizes the release of a defendant on his personal recognizance. Traf.R. 4(B) and Crim.R. 46 also permit releasing a traffic defendant on his or her personal recognizance. Under Cleveland Mun.Ct.R. 15, Schedule A, Section A, a traffic defendant may be released on personal bond. Auble apparently was so released. However, R.C. 2937.43 provides:
"Should the accused fail to appear as required, after having been released pursuant to section 2937.29 of the Revised Code, the court having jurisdiction at the time of such failure may, in addition to any other action provided by law, issue a warrant for the arrest of such accused."
Moreover, Traf.R. 7 authorizes the court to issue a supplemental summons or warrant if a defendant fails to appear pursuant to a ticket issued to him. Oakwood v. Wuliger (1982), 69 Ohio St.2d 453, 455-456, 23 O.O.3d 398, 400, 432 N.E.2d 809, 811-812.
Auble failed to appear at trial and has taken no steps to correct this failure. Thus, Saffold had the authority to issue the capias, and Kuczak has not established that she had a clear legal duty to lift it. Accordingly, we deny the writ as to Saffold.
Writ denied.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.