STATE EX REL. KIRK v. BURCHAM

No. 97-1354.

82 Ohio St.3d 407 (1998)

THE STATE EX REL. KIRK ET AL., APPELLANTS, v. BURCHAM, CLERK OF COURTS, APPELLEE.

Supreme Court of Ohio.

Decided July 29, 1998.


Attorney(s) appearing for the Case

Southeastern Ohio Legal Services Program, Ruth Heintz and Mark J. Cardosi, for appellants.

Lambert & McWhorter and Randall L. Lambert, for appellee.


Per Curiam.

Appellants assert in their propositions of law that the court of appeals erred by denying the writ of mandamus. They initially contend that the court of appeals erred in holding that the case was moot.

But insofar as appellants sought a writ of mandamus to compel Burcham to journalize the divorce decree, the case was rendered moot by Burcham's January 10, 1997 journalization of the decree. A writ of mandamus will not issue to compel an act already performed. State ex rel. Jerninghan v. Cuyahoga Cty. Court of Common Pleas (1996), 74 Ohio St.3d 278, 279, 658 N.E.2d 723, 724.

Despite appellants' contentions that their mandamus claim is not moot due to issues of Kirk's lost child support caused by Burcham's delay in journalizing the divorce decree and the court of appeals' assessment of costs against SEOLS, appellants now concede that this appeal was not filed based on these contentions.1

Instead, appellants claim that their appeal was filed in order to challenge Burcham's continued adherence to Loc.R. 4A, which they assert is unconstitutional. See fn. 1. A writ of mandamus, however, will not issue if there is an adequate remedy in the ordinary course of law. State ex rel. Walker v. Lancaster City School Dist. Bd. of Edn. (1997), 79 Ohio St.3d 216, 218, 680 N.E.2d 993, 995; R.C. 2731.05. Appellants have an adequate remedy in the ordinary course of law by declaratory judgment to challenge the constitutionality of Loc.R. 4A.

In addition, the court of appeals also lacks jurisdiction in declaratory judgment, which appears to be appellants' true objective, Wright v. Ghee (1996), 74 Ohio St.3d 465, 466, 659 N.E.2d 1261, 1262, and a writ of mandamus will not issue to compel the general observance of laws in the future. State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs. (1997), 80 Ohio St.3d 134, 135, 684 N.E.2d 1222, 1223, fn. 1.

Further, because of the availability of declaratory judgment to address the constitutionality of Loc.R. 4A, appellants' claim would not necessarily evade review. See State ex rel. Bruni v. Leonard (1997), 80 Ohio St.3d 475, 476, 687 N.E.2d 441, 442 (Appeal was rendered moot because issues were not capable of repetition yet evading review.).

Based on the foregoing, the court of appeals properly denied the writ.2 Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.

FootNotes


1. In their reply brief, appellants state:

"Similarly, * * * appellants' merit brief pointed out that a live controversy remains because of Mr. Burcham's continued adherence to his policy of refusing to file and journalize decrees unless all court costs have been paid or a specific order of journalization is obtained under Local Rule 4(A). * * * The lower court's decision could not have indicated more clearly that appellee's legal duty is to file and journalize judgment entries on presentment to him, irrespective of whether all court costs have been paid. Had appellee taken the opportunity graciously offered him by the Fourth District, this appeal would never have been filed." (Emphasis added.)

While appellants misconstrued the court of appeals' holding, which did not expressly address whether Burcham had a duty to journalize the divorce decree even if the requirements of Loc.R. 4A had not been satisfied, their argument indicates that no appeal would have been filed if Burcham had decided to ignore Loc.R. 4A in the future. Kirk also has or had an adequate legal remedy by motion in her divorce case to recover additional support.

2. This conclusion moots appellants' claim that the court of appeals erred in holding that SEOLS lacked standing to seek the requested extraordinary relief in mandamus. Even if SEOLS had standing, it was not entitled to the writ to compel Burcham to journalize divorce decrees in the future because it had an adequate legal remedy by way of declaratory judgment.

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