[Cite as State ex rel. Neilsen v. Tieman, 2025-Ohio-780.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE EX REL. THOMAS NEILSEN, :
Relator-Appellant, : Case No. 24CA4100
v. :
SCIOTO COUNTY PROSECUTOR, : DECISION AND JUDGMENT ENTRY SHANE TIEMAN, :
Respondent-Appellee. ________________________________________________________________
APPEARANCES:
Thomas Neilsen, Parker, Colorado, pro se.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Danielle M. Parker, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee. ________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:3-3-25 ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas
Court judgment that dismissed a petition for a writ of mandamus
filed by Thomas Neilsen, relator below and appellant herein,
against the Scioto County Prosecutor, Shane Tieman, respondent
below and appellee herein. Appellant assigns the following
errors for review: SCIOTO, 24CA4100
FIRST ASSIGNMENT OF ERROR:
“JUDGE COOPER WAS SIMPLY WRONG WHEN HE FOUND THAT THE APPELLANT/RELATOR DOES NOT HAVE GENERAL STANDING TO BRING THIS ACTION. APPELLANT/RELATOR DOES HAVE STANDING TO BRING THIS ACTION AND WILL ADDRESS THE ISSUES RAISED BY JUDGE COOPER IN THE ARGUMENT.”
SECOND ASSIGNMENT OF ERROR:
“JUDGE COOPER DELIBERATELY FAILED TO ADDRESS RELATOR’S STANDING UNDER THE ‘PUBLIC RIGHT DOCTRINE’. APPELLANT/RELATOR ABSOLUTELY HAS STANDING UNDER THE PUBLIC RIGHT DOCTRINE’.”
THIRD ASSIGNMENT OF ERROR:
“JUDGE COOPER WAS FLAT WRONG WHEN HE STATED THAT ‘RELATOR HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE SCIOTO PROSECUTOR HAS A CLEAR LEGAL DUTY TO PERFORM THE REQUESTED ACTS IN THE PETITION. EITHER JUDGE COOPER IS WRONG, OR THE JUSTICES FOR THE UNITED STATES SUPREME COURT ARE WRONG. THEY HAVE DIFFERENT OPINIONS.”
FOURTH ASSIGNMENT OF ERROR:
“JUDGE COOPER AND DANIELLE PARKER’S ANALYSIS OF SANDS V. COULSON, 2021-OHIO-671 IS MISTAKEN AND MISCONSTRUED.”
{¶2} This appeal arises out of appellant’s investigation
into the criminal trial of Christina Williams. In 2010,
Williams was convicted of multiple offenses, including SCIOTO, 24CA4100
3 aggravated murder, aggravated burglary, and aggravated robbery,
arising out of the deaths of Gary Markins, Sr. and Nina
Mannering. See State v. Williams, 2012-Ohio-6083 (4th Dist.).
More than ten years later, appellant requested and obtained
various public records and other documents pertaining to
Williams’s criminal trial. After reviewing the documents,
appellant notified appellee that he believes that Williams is
innocent.
{¶3} Appellee subsequently reviewed the case in accordance
with Rule 3.8 of the Model Rules of Professional Conduct.1 After
1 The rule provides in relevant part as follows:
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(I) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. SCIOTO, 24CA4100
4 appellee reviewed the case, appellee determined that no clear
and convincing evidence indicated that Williams had been
wrongfully convicted. Appellee thus notified appellant that
appellee would not reopen Williams’s case.
{¶4} On July 19, 2024, appellant filed a writ of mandamus
that sought to compel appellee to notify the trial court that,
in Williams’s criminal case, prosecutors submitted perjured
testimony, fabricated evidence, and withheld evidence that
established Williams’s innocence. Appellant asked the court to
order appellee to disclose the perjured testimony, the
fabricated evidence and the concealed evidence. Appellant
asserted that “[t]he case against Christina Williams needs to be
withdrawn, prosecutors need to be permanently disbarred and
every case Pat Apel or Julie Hutchison [the prosecutors involved
in Williams’s trial] were ever associated with should be
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
ABA Model R. Prof. Conduct 3.8, available at https://www.americanbar.org/groups/professional_responsibility/p ublications/model_rules_of_professional_conduct/rule_3_8_special _responsibilities_of_a_prosecutor/. SCIOTO, 24CA4100
5 reexamined to determine if the same nefarious activities that
happened in [Williams’s] case were present in other cases.”
{¶5} Appellee subsequently filed a motion to dismiss
appellant’s complaint for failing to state a claim upon which
relief can be granted. Appellee claimed that appellant lacked
standing and could not establish that he is entitled to a writ
of mandamus. Regarding standing, appellee asserted that
appellant, a Colorado resident, lacks any interest in Williams’s
criminal case and has not suffered an injury that mandamus can
redress. Appellee further argued that mandamus is not an
appropriate legal remedy.
{¶6} On September 11, 2024, the trial court granted
appellee’s motion to dismiss. The court determined that
appellant lacked standing and that mandamus is not an
appropriate legal remedy. This appeal followed.
I
{¶7} For ease of discussion, we jointly consider
appellant’s first and second assignments of error. In his first
and second assignments of error, appellant asserts that the
trial court incorrectly dismissed his petition based upon its
determination that he lacked standing to seek a writ of mandamus SCIOTO, 24CA4100
6 against appellee. Appellant contends that he has taxpayer
standing or, alternatively, he has standing under the public-
right doctrine.
A
{¶8} “Appellate courts conduct a de novo review of trial
court decisions that grant or deny a Civ.R. 12(B)(6) motion to
dismiss.” Student Doe v. Adkins, 2021-Ohio-3389, ¶ 17 (4th
Dist.), citing Alexander Local School Dist. Bd. of Edn. v.
Albany, 2017-Ohio-8704, ¶ 22 (4th Dist.); e.g., Valentine v.
Cedar Fair, L.P., 2022-Ohio-3710, ¶ 12, citing Alford v.
Collins-McGregor Operating Co., 2018-Ohio-8, ¶ 10. We therefore
afford no deference to the trial court’s decision, but instead,
independently review the trial court’s decision. Struckman v.
Bd. of Edn. of Teays Valley Local School Dist., 2017-Ohio-1177,
¶ 18 (4th Dist.).
B
{¶9} Civ.R. 12(B)(6) allows a party to file a motion to
dismiss a complaint for failing to state a claim upon which
relief can be granted. “[A] Civ.R. 12(B)(6) motion to dismiss
tests only the sufficiency of the allegations.” Volbers–Klarich
v. Middletown Mgt., Inc., 2010-Ohio-2057, ¶ 9, citing Assn. for SCIOTO, 24CA4100
7 the Defense of the Washington Local School Dist. v. Kiger, 42
Ohio St.3d 116, 117 (1989); accord State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992)
(explaining that a Civ.R. 12(B)(6) motion to dismiss tests the
sufficiency of the complaint). A court that is considering a
Civ.R. 12(B)(6) motion to dismiss for failure to state a claim
upon which relief can be granted must presume that all factual
allegations contained in the complaint are true and must
construe all reasonable inferences in favor of the nonmoving
party. E.g., Schirmer v. Mt. Auburn Obstetrics & Gynecologic
Assoc., Inc., 2006-Ohio-942, ¶ 3, fn.1, citing Maitland v. Ford
Motor Co., 2004-Ohio-5717, ¶ 16; Perez v. Cleveland, 66 Ohio
St.3d 397, 399 (1993). A trial court may grant a motion to
dismiss for failure to state a claim only if it appears “beyond
doubt from the complaint that the plaintiff can prove no set of
facts entitling him to recovery.” O’Brien v. Univ. Community
Tenants Union, 42 Ohio St.2d 242 (1975), syllabus; e.g., LeRoy
v. Allen, Yurasek & Merklin, 2007-Ohio-3608, ¶ 14; Maitland v.
Ford Motor Co., 2004-Ohio-5717, ¶ 11; York v. Ohio State Highway
Patrol, 60 Ohio St.3d 143, 144 (1991).
C SCIOTO, 24CA4100
8 {¶10} To be entitled to a writ of mandamus, a party must
establish, by clear and convincing evidence, that (1) the party
has a clear legal right to the requested relief, (2) the
respondent has a clear legal duty to provide the requested
relief, and (3) the party lacks an adequate remedy in the
ordinary course of the law. E.g., State ex rel. Waters v.
Spaeth, 2012-Ohio-69, ¶ 6.
{¶11} Furthermore, before a court may consider the merits of
a mandamus claim, “‘the person or entity seeking relief must
establish standing to sue.’” ProgressOhio.org, Inc. v.
JobsOhio, 2014-Ohio-2382, ¶ 7, quoting Ohio Pyro, Inc. v. Ohio
Dept. of Commerce, Div. of State Fire Marshal, 2007-Ohio-5024, ¶
27. Standing thus “is a threshold question for the court to
decide in order for it to adjudicate the action.” State ex rel.
Jones v. Suster, 84 Ohio St.3d 70, 77 (1998); see State ex rel.
Novak, L.L.P. v. Ambrose, 2019-Ohio-1329, ¶ 12 (“standing is
necessary for justiciability”). Standing “‘refers to whether a
party has a sufficient stake in an otherwise justiciable
controversy to obtain judicial resolution of that controversy.’”
State ex rel. Ford v. Ruehlman, 2016-Ohio-3529, ¶ 56, quoting
Davet v. Sheehan, 2014-Ohio-5694, ¶ 22 (8th Dist.); accord SCIOTO, 24CA4100
9 Black’s Law Dictionary (11th ed. 2019) (“standing” refers to
“[a] party’s right to make a legal claim or seek judicial
enforcement of a duty or right”). The essential question “is
whether the party seeking relief has ‘alleged such a personal
stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination.’”
Racing Guild of Ohio, Local 304 v. Ohio State Racing Comm., 28
Ohio St.3d 317, 321 (1986), quoting Baker v. Carr, 369 U.S. 186,
204 (1962). “[L]ack of standing vitiates the party’s ability to
invoke the jurisdiction of a court” to hear an action. Bank of
Am., N.A. v. Kuchta, 2014-Ohio-4275, ¶ 22. Thus, lack of
standing is “a fundamental flaw” that requires “a court to
dismiss the action.” Id. at ¶ 23; accord State ex rel. Ames v.
Portage Cnty. Bd. of Revision, 2021-Ohio-4486, ¶ 10 (“A mandamus
action brought by a party that lacks standing will be
dismissed.”).
{¶12} “Under traditional standing principles, a plaintiff
must show, at a minimum, that he has suffered ‘“(1) an injury
that is (2) fairly traceable to the defendant’s allegedly
unlawful conduct, and (3) likely to be redressed by the SCIOTO, 24CA4100
10 requested relief.”’” State ex rel. Walgate v. Kasich, 2016-
Ohio-1176, ¶ 18, quoting ProgressOhio.org, 2014-Ohio-2382, at ¶
7, quoting Moore v. Middletown, 2012-Ohio-3897, ¶ 22. “For
common-law standing, a party wishing to sue must have a ‘direct,
personal stake’ in the outcome of the case; ‘ideological
opposition to a program or legislative enactment is not
enough.’” Id., quoting ProgressOhio.org at ¶ 1.
{¶13} To have standing in a mandamus action, a relator must
show that the relator “‘would be directly benefitted or injured
by a judgment in the case.’” State ex rel. Hills & Dales v.
Plain Local School Dist. Bd. of Edn., 2019-Ohio-5160, ¶ 9,
quoting State ex rel. Sinay v. Sodders, 80 Ohio St.3d 224, ¶ 9
(1997). “And the injury must be personal—that is, the plaintiff
or relator must suffer particular harm that is different from
some general harm suffered by the public at large.” State ex
rel. Martens v. Findlay Mun. Court, 2024-Ohio-5667, ¶ 12, citing
ProgressOhio.org at ¶ 7, and State ex rel. Masterson v. Ohio
State Racing Comm., 162 Ohio St. 366, 368 (1954).
{¶14} In the case at bar, we do not believe that appellant
can establish that he has standing to bring a mandamus action
that compels appellee to inform the trial court that, in SCIOTO, 24CA4100
11 Williams’s criminal trial, prosecutors presented perjured
testimony, fabricated evidence, and withheld exculpatory
evidence.2 Granting this type of relief would not directly
benefit or injure appellant. Appellant has no stake in
Williams’s criminal trial. He is a citizen of Colorado who
apparently took an interest in Williams’s case and decided to
investigate. He is not a co-defendant or a party in Williams’s
criminal case and does not otherwise have a personal stake in
the criminal trial. Appellant thus does not have any personal
interest, injury, or harm that is different from some general
harm that may have been suffered by the public at large.
{¶15} Moreover, as a general rule, the standing doctrine
requires a litigant to assert the litigant’s own rights, not the
rights of third parties. See N. Canton v. Canton, 2007-Ohio-
4005, ¶ 14. In certain circumstances, however, a third party
may have standing to assert the rights of another. Util. Serv.
Partners, Inc. v. Pub. Util. Comm., 2009-Ohio-6764, ¶ 49, citing
Kowalski v. Tesmer, 543 U.S. 125, 129–130 (2004). Courts do not
view third-party standing with favor, however. Kowalski at 130.
2 Because this matter originates from a motion to dismiss, we must presume the truth of the factual allegations contained in appellant’s mandamus petition. SCIOTO, 24CA4100
12 A court may nevertheless grant a third party standing when the
party “(I) suffers its own injury in fact; (ii) possesses a
sufficiently ‘“close” relationship with the person who possesses
the right’; and (iii) shows some ‘hindrance’ that stands in the
way of the claimant seeking relief.” E. Liverpool v. Columbiana
Cty. Budget Comm., 2007-Ohio-3759, ¶ 22, quoting Kowalski at
130.
{¶16} In the case sub judice, appellant did not suffer an
injury in fact, nothing suggests he shares a close relationship
with Williams, and nothing indicates that some hindrance exists
to prevent Williams from seeking relief as may be appropriate.
Because nothing appears to prohibit Williams from asserting her
own rights, appellant does not have any legal right to assert
any right that Williams may have in asking the prosecutor to
inform the court that, in her criminal case, prosecutors
presented perjured testimony, fabricated evidence, and withheld
exculpatory evidence. See N. Canton, 2007-Ohio-4005, at ¶ 17
(litigant did not have any legal right to assert the equal
protection rights of a third party when nothing prohibited the
third party from asserting its own rights).
{¶17} Appellant further contends that he has standing under SCIOTO, 24CA4100
13 the public-right doctrine. The Ohio Supreme Court, however,
recently overruled the case that recognized this doctrine, State
ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d
451 (1999), and no longer permits parties to assert the public-
right doctrine as a means to “bypass” the standing requirement.
See State ex rel. Martens, 2024-Ohio-5667, at ¶ 23 (overruling
Sheward and holding that litigants no longer may rely on Sheward
“to bypass our well-established standing requirement”).
{¶18} Furthermore, appellant’s claim that he has “taxpayer
standing” likewise has no merit. As the court explained in
State ex rel. Martens,
[u]nder Ohio’s taxpayer-lawsuit provisions, a taxpayer may file an action on “behalf of a municipal corporation,” R.C. 733.59, or in “the name of the state,” R.C. 309.13, if the government fails to pursue a lawsuit after a written request from the taxpayer. In such cases, the standing requirement is satisfied because the municipal corporation or the state is the actual party in interest and the General Assembly has explicitly given the taxpayer authority to sue on the government’s behalf. Ohio has recognized such actions for over 150 years. See Act of Mar. 3, 1860, Section 13, 57 Ohio Laws 16, 18 (precursor to R.C. 733.59). “In the absence of statutory authority, however, a taxpayer lacks legal capacity to institute a taxpayer action unless he has some special interest in the public funds at issue.” State ex rel. Dann v. Taft, 110 Ohio St.3d 1, 2006-Ohio- 2947, 850 N.E.2d 27, ¶ 13, citing Masterson at paragraph one of the syllabus.
Id. at ¶ 24. SCIOTO, 24CA4100
14 {¶19} In the case sub judice, appellant did not allege a
special interest in the public funds at issue, and did not cite
any statutory authority to authorize him to bring a taxpayer
suit in this case. Therefore, appellant has not established
taxpayer standing. See id. at ¶ 25. Consequently, we do not
agree with appellant that the trial court incorrectly dismissed
his mandamus petition based upon a lack of standing.
{¶20} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first and second assignments of error.
II
{¶21} For ease of discussion, we jointly consider
appellant’s third and fourth assignments of error.
{¶22} In his third assignment of error, appellant asserts
that United States Supreme Court precedent required the trial
court to issue his requested writ and order the prosecutor to
“‘correct the perjured testimony’ and ‘set the record
straight.’” He contends that United States Supreme Court
precedent requires prosecutors to correct perjured testimony,
admit when prosecutors fabricate evidence, and disclose
favorable evidence to the accused. SCIOTO, 24CA4100
15 {¶23} In his fourth assignment of error, appellant asserts
that the trial court improperly determined that State ex rel.
Sands v. Coulson, 2021-Ohio-671, forecloses the relief that
appellant requested in his writ of mandamus. Appellant argues
that unlike Sands, his mandamus petition did not ask the court
to order appellee to vacate Williams’s conviction. Instead, he
asked the court to compel appellee to correct the allegedly
perjured testimony and to “set the record straight.”
{¶24} We believe that our disposition of appellant’s first
and second assignments of error renders his third and fourth
assignments of error moot. Because appellant cannot establish
the threshold issue of standing to pursue mandamus relief,
whether his complaint adequately alleges his entitlement to that
relief is a moot issue. See State ex rel. Cincinnati Enquirer
v. Hunter, 2014-Ohio-5457, ¶ 4, quoting In re L.W., 2006-Ohio-
644, ¶ 11 (10th Dist.), quoting Grove City v. Clark, 2002-Ohio-
4549, ¶ 11 (10th Dist.), quoting Culver v. Warren, 84 Ohio App.
373, 393 (7th Dist.1948), quoting Borchard, Declaratory
Judgments, 2d Ed., page 35 (explaining that issues are moot
“‘“‘“when they are or have become fictitious, colorable,
hypothetical, academic or dead”’”’”); State v. Moore, 2015-Ohio- SCIOTO, 24CA4100
16 2090, ¶ 6 and 7 (4th Dist.) (“The principle of “judicial
restraint” mandates that Ohio courts should not exercise
jurisdiction over questions of law that have been rendered
moot.”). We therefore do not address appellant’s third and
fourth assignments of error. See App.R. 12(A)(1)(c).
{¶25} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third and fourth assignments of error and
affirm the trial court’s judgment.
JUDGMENT AFFIRMED. SCIOTO, 24CA4100
17 JUDGMENT ENTRY
It is ordered that the appeal be affirmed and that appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Scioto County Common Pleas Court to carry
this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. SCIOTO, 24CA4100