State ex rel. Brotherton v. Chief of Police, Cedar Point Police Dept.

2016 Ohio 656

• Court: Ohio Court of Appeals
• Decided: February 22, 2016
• Docket: E-16-004
• Status: Published

Opinion

[Cite as State ex rel. Brotherton v. Chief of Police, Cedar Point Police Dept., 2016-Ohio-656.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio, ex rel. Brandon Brotherton Court of Appeals No. E-16-004

Relator

v.

Chief of Police, Cedar Point Police Department DECISION AND JUDGMENT

Respondent Decided: February 22, 2016

*****

Brandon Brotherton, pro se.

PIETRYKOWSKI, J.

{¶ 1} This matter is before the court on relator’s, Brandon Brotherton, January 19,

2016 petition for a writ of mandamus and accompanying request for a waiver of the filing

fee. In accordance with the Ohio Supreme Court’s decision in State ex rel. Reeves v.

Chief of Police, Cedar Point Police Dept., 143 Ohio St.3d 368, 2015-Ohio-2909, 37

N.E.3d 1231, we sua sponte dismiss relator’s petition for failing to provide an affidavit with the application for the writ of mandamus, and for failing to provide a sworn affidavit

of his inability to secure the costs of the action by prepayment.

{¶ 2} R.C. 2731.04 requires that “[a]pplication for the writ of mandamus must be

by petition, in the name of the state on the relation of the person applying, and verified by

affidavit.” (Emphasis added.) Relatedly, 6th Dist.Loc.App.R. 7(A) requires a party

bringing a mandamus action to either deposit with the clerk $100 as security for the

payment of costs, or file with the clerk a “sworn affidavit of inability to secure costs by

such prepayment.”

{¶ 3} Pursuant to R.C. 2319.02, an affidavit is “a written declaration under oath,

made without notice to the adverse party.” Here, relator has included with his affidavit in

support of petition and his affidavit of indigency a “verification” pursuant to 28 U.S.C.

1746 that the statements in his affidavits are true and correct.1 28 U.S.C. 1746 provides,

Wherever, under any law of the United States or under any rule,

regulation, order, or requirement made pursuant to law, any matter is

required or permitted to be * * * established * * * by the sworn * * *

statement, oath, or affidavit, in writing of the person making the same * * *,

such matter may, with like force and effect, be * * * established * * * by

the unsworn * * * statement, in writing of such person which is subscribed

1 The language used by relator in his affidavits is “Pursuant to 28 U.S.C. 1746, all of the above is true and correct.”

2. by him, as true under penalty of perjury, and dated, in substantially the

following form:

***

(2) If executed within the United States * * *: “I declare (or certify,

verify, or state) under penalty of perjury that the foregoing is true and

correct. Executed on (date).

{¶ 4} However, the Ohio Supreme Court has expressly rejected the use of 28

U.S.C. 1746, and has insisted that “only a written declaration made under oath before a

proper officer qualifies as an ‘affidavit.’” Toledo Bar Assn. v. Neller, 102 Ohio St.3d

1234, 2004-Ohio-2895, 809 N.E.2d 1152, ¶ 24. Because relator’s filings constitute

unsworn statements not made under oath before a proper officer, we cannot accept them

as affidavits.

{¶ 5} Accordingly, because relator has not complied with the requirements of R.C.

2731.04 and 6th Dist.Loc.App.R. 7(A), we hereby dismiss his petition for a writ of

mandamus at relator’s costs. The clerk is directed to serve upon the parties, within three

days, a copy of this decision in a manner prescribed by Civ.R. 5(B).

Writ denied.

3. State ex rel. Brotherton v. Chief of Police, Cedar Point Police Dept. C.A. No. E-16-004

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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