[This opinion has been published in Ohio Official Reports at
76 Ohio St.3d 383.]
MOOTISPAW, APPELLANT, v. ECKSTEIN, PROS. ATTY., APPELLEE.
[Cite as Mootispaw v. Eckstein, 1996-Ohio-389.]
Mandamus to compel prosecuting attorney to investigate alleged fraud and
collusion between relator’s attorney and an assistant prosecuting attorney
in relator’s criminal convictions—Writ denied, when.
(No. 96-777—Submitted July 10, 1996—Decided August 21. 1996.)
APPEAL from the Court of Appeals for Fayette County, No. CA96-02-004.
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{¶ 1} Appellant, Rusty E. Mootispaw, is an inmate currently imprisoned at
Lebanon Correctional Institution. In 1981, the Fayette County Court of Common
Pleas convicted Mootispaw of murder and sentenced him to fifteen years to life in
prison. At that time, Mootispaw was represented by attorneys John C. Bryan and
James L. Butler, and the state was represented by then-Fayette County Prosecuting
Attorney, John H. Roszmann, and Assistant Prosecuting Attorney James A. Kiger.
{¶ 2} In October 1994, Mootispaw allegedly received mail from Bryan
which included a letter dated August 9, 1986 from Bryan to Kiger in which Bryan
stated that Mootispaw was aware of Bryan and Kiger’s “knowledge of his
innocence of murder.”
{¶ 3} In August 1995, Mootispaw filed a complaint in the Court of Appeals
for Fayette County for a writ of mandamus to compel appellee, Fayette County
Prosecuting Attorney Steven Eckstein, to investigate the alleged fraud committed
by Bryan and Kiger. Eckstein filed an answer as well as a motion for summary
judgment. Attached to Eckstein’s motion for summary judgment was his affidavit
in which he stated that (1) he had received a letter from Mootispaw along with the
alleged letter from Bryan to Kiger, (2) he had investigated the matter by conducting
interviews with Roszmann, Bryan, Butler, and officers of the local bar association,
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and (3) upon completion of his investigation, he had concluded that Mootispaw’s
allegations were meritless.
{¶ 4} Mootispaw filed a motion for summary judgment and reply to
Eckstein’s summary judgment motion. Mootispaw contended that Eckstein had
conflicts of interest in proceeding with the investigation because (1) Butler, one of
Mootispaw’s trial counsel, is a law partner of the president of the local bar
association that Eckstein met with to conduct investigative interviews, and (2)
Eckstein represented the attorneys complained about by Mootispaw in
Mootispaw’s false imprisonment action. See Mootispaw v. Doe (Oct. 23, 1995),
Fayette App. No. CA95-03-009, unreported, 1995 WL 617476, appeal not allowed
(1996),
74 Ohio St.3d 1523,
660 N.E.2d 743.
{¶ 5} In March 1996, the court of appeals granted Eckstein’s motion for
summary judgment and denied the writ. The court of appeals determined that based
on Eckstein’s affidavit, he had fulfilled his legal duty by investigating the matter
and concluding that Mootispaw’s allegations were without merit.
{¶ 6} The cause is now before this court upon an appeal as of right.
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Rusty E. Mootispaw, pro se.
Steven Eckstein, Fayette County Prosecuting Attorney, and James B.
Grandey, Assistant Prosecuting Attorney, for appellee.
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Per Curiam.
{¶ 7} In his sole proposition of law, Mootispaw asserts that the court of
appeals erred in granting Eckstein’s motion for summary judgment and denying the
writ because prosecutors are required to investigate fraud and collusion in criminal
convictions. In order to be entitled to a writ of mandamus, Mootispaw had to
establish (1) a clear legal right to the requested investigation, (2) a corresponding
clear legal duty on the part of Eckstein to conduct the requested investigation, and
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January Term, 1996
(3) the lack of an adequate remedy in the ordinary course of law. State ex rel.
Manson v. Morris (1993), 66 Ohio St.3d 440, 441,
613 N.E.2d 232, 233-234.
Before summary judgment may be granted, it must be determined that (1) no
genuine issue as to any material fact remains to be litigated, (2) the moving party
is entitled to judgment as a matter of law, and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing such evidence most
strongly in favor of the nonmoving party, that conclusion is adverse to the party
against whom the motion for summary judgment is made. Temple v. Wean United,
Inc. (1977),
50 Ohio St.2d 317, 327,
4 O.O.3d 466, 472,
364 N.E.2d 267, 274.
{¶ 8} A prosecuting attorney will not be compelled to prosecute a complaint
except when the failure to prosecute constitutes an abuse of discretion. State ex rel.
Master v. Cleveland (1996), 75 Ohio St.3d 23, 27,
661 N.E.2d 180, 184.
Consequently, the decision whether to prosecute is discretionary and not normally
subject to judicial review.
Id.,75 Ohio St.3d at 27,
661 N.E.2d at 184, citing Ohio
Assn. of Pub. School Emp., Chapter 643, AFSCME, AFL-CIO v. Dayton City
School Dist. Bd. of Edn. (1991),
59 Ohio St.3d 159, 160,
572 N.E.2d 80, 82.
{¶ 9} Mootispaw contends that the letter attached to his complaint for a writ
of mandamus was sufficient to preclude summary judgment. However, when a
motion for summary judgment is made and supported as provided in Civ.R. 56, the
nonmoving party may not rest on the mere allegations of his pleading, but his
response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific
facts showing the existence of a genuine triable issue. State ex rel. Zimmerman v.
Tompkins (1996), 75 Ohio St.3d 447, 449,
663 N.E.2d 639, 641; Dresher v. Burt
(1996),
75 Ohio St.3d 280, 293,
662 N.E.2d 264, 274; Civ.R. 56(E).
{¶ 10} Eckstein supported his summary judgment motion with his affidavit,
which established that he conducted an investigation and did not abuse his broad
discretion in deciding not to prosecute the matter. By contrast, Mootispaw rested
on the mere allegations of his pleading and failed to file Civ.R. 56 evidence setting
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forth specific facts supporting his claim that Eckstein abused his discretion in
deciding not to prosecute the matter.
{¶ 11} In addition, to the extent that Mootispaw claimed that Eckstein had
conflicts of interest, the court of appeals correctly concluded that Mootispaw
“failed to specifically explain [with appropriate Civ.R. 56 evidence] how either of
these circumstances could have influenced respondent’s investigation ….” Even
assuming that Eckstein had a conflict of interest, Mootispaw had an adequate
remedy at law, i.e., he could have requested the common pleas court to appoint a
special prosecutor to investigate and prosecute the alleged fraud. Master, 75 Ohio
St.3d at 27,
661 N.E.2d at 184.
{¶ 12} For the foregoing reasons, the court of appeals properly entered
summary judgment in favor of Eckstein and denied the writ. The judgment of the
court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
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