IN THE COURT OF APPEALS OF OHIO

TWELFTH APPELLATE DISTRICT

CLERMONT COUNTY

STATE OF OHIO, ex rel. JOHN :

BECKER, :
:
Relator, : Case No. CA2020-10-0058
:
v. :
D. VINCENT FARIS, et al., : On Petition for a Writ of Mandamus
:
Respondents. :

BRIEF OF OHIO ATTORNEY GENERAL DAVE YOST

AS AMICUS CURIAE IN SUPPORT OF D. VINCENT FARIS

DAVE YOST (0056290)

Ohio Attorney General
30 East Broad Street, 17th Floor
Columbus, OH 43215
614-466-8980
866-846-8195 fax
Counsel for Amicus Curiae
Ohio Attorney General Dave Yost
 TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES..................................................................................ii
INTRODUCTION AND STATEMENT OF AMICUS INTEREST .................... 1
STATEMENT OF FACTS .................................................................................... 3
ARGUMENT .........................................................................................................4
CONCLUSION......................................................................................................9
CERTIFICATE OF SERVICE ............................................................................. 11

i
 TABLE OF AUTHORITIES

Cases Page(s)

State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Comm’rs.,

2009-Ohio-5573 (8th Dist.) ................................................................................9

State ex rel. Bunting v. Steyr,

147 Ohio St. 3d 462, 2016-Ohio-5781 .................................................................6

Linda R. S. v. Richard D.,

410 U.S. 614 (1973) ............................................................................................ 5

Statutes, Rules, and Constitutional Provisions

Ohio Const., art.I, §2 ..............................................................................................8

Ohio Const., art.II, §23 ....................................................................................... 2, 7

Civ. R. 11.................................................................................................................9

R.C. 2935.09 ....................................................................................................... 1, 3

R.C. 2935.10.................................................................................................1, 4, 5, 6

ii
 INTRODUCTION AND STATEMENT OF AMICUS INTEREST

Ohio law empowers citizens to file affidavits in court alleging criminal con-

duct. See R.C. 2935.09. Depending on the circumstances, the court will either issue

an arrest warrant for the person accused of a felony, or else refer the matter “for

investigation prior to the issuance of warrant.” R.C. 2935.10(A). Here, Ohio State

Representative John Becker, acting in his personal capacity, filed an affidavit alleging

that Governor Mike DeWine violated numerous criminal laws by issuing public-

health orders in response to the COVID-19 pandemic. See Private Citizen Affidavit

(filed Sept. 28, 2020), attached to Pet. as Exhibit 1. The Clermont County Municipal

Court referred the matter to the county prosecutor, D. Vincent Faris, who declined

to investigate further. Representative Becker says that Faris’s non-prosecution deci-

sion violated the law: he claims that R.C. 2935.10 required Faris to conduct a more

thorough “investigation” before declining to pursue charges. And so he seeks a writ

of mandamus compelling “an actual and legitimate investigation regarding” the al-

legations in his Private Citizen Affidavit. Pet.6.

The request for mandamus relief should be rejected. Prosecutor Faris cor-

rectly decided not to waste prosecutorial resources investigating Becker’s allega-

tions, both because those allegations are frivolous and because the General

1
Assembly’s impeachment power is the more appropriate tool for investigating al-

leged abuses of gubernatorial powers. See Ohio Const., art.II, §23.

The Attorney General is interested in this case because the petitioner, John

Becker, is an elected official, and is using the courts to carry out a political stunt.

Worse, Representative Becker is using his position of influence to encourage others

to follow his lead and file frivolous affidavits and mandamus petitions just like his.

It is important that these efforts fail, visibly. If every citizen engaged in the

conduct urged by Representative Becker, the courts would be choked with these af-

fidavits. Under the reading of the statute urged by the petitioner, law enforcement

would be mandated to run willy-nilly, hither and yon, across the countryside, “inves-

tigating” what amount to private, political complaints that are properly resolved at

the ballot box.

Prosecutors and the judiciary exist for the benefit of Ohioans. Both institu-

tions serve the public, often by opening their doors and dedicating their resources to

addressing the real concerns of real people in their darkest hours. It is patently un-

acceptable for elected officials to waste these resources, and to encourage others to

do the same, all in hopes of scoring political points. The Court should reject the

petition for a writ of mandamus and award sanctions of sufficient seriousness to deter

follow-on suits.

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 STATEMENT OF FACTS

John Becker represents House District 65 in the Ohio General Assembly.

Becker is a vocal opponent of Governor DeWine’s response to the COVID-19 pan-

demic, which Becker believes to have been overbearing and insufficiently respectful

to the rights of Ohioans—a view with which many Ohioans are not unsympathetic.

Becker has voiced his opposition in a couple of ways.

First, Becker drafted articles of impeachment against Mike DeWine. The

public can view the draft at “impeachdewine.com,” a website Becker created to pro-

mote his cause. See Draft Articles of Impeachment, online at https://impeachdewine

.webs.com/lr_133_0235-5.pdf (last visited Oct. 21, 2020).

Second, when it became clear that the General Assembly saw no basis for im-

peachment, Becker attempted to take matters into his own hands. Becker filed a

citizen complaint against Governor DeWine in the Clermont Municipal Court. The

complaint alleges that Governor DeWine committed ten crimes, including numer-

ous felonies, through the issuance of public-health orders designed to address the

COVID-19 pandemic. Becker filed his complaint under R.C. 2935.09(D), which

states:

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 A private citizen having knowledge of the facts who seeks to cause an ar-
rest or prosecution under this section may file an affidavit charging the
offense committed with a reviewing official for the purpose of review to
determine if a complaint should be filed by the prosecuting attorney or
attorney charged by law with the prosecution of offenses in the court or
before the magistrate.

A second statute, R.C. 2935.10(A), details the manner in which such complaints are

to be handled:

Upon the filing of an affidavit or complaint as provided by sec-

tion 2935.09 of the Revised Code, if it charges the commission of a fel-
ony, such judge, clerk, or magistrate, unless he has reason to believe that
it was not filed in good faith, or the claim is not meritorious, shall forth-
with issue a warrant for the arrest of the person charged in the affidavit,
and directed to a peace officer; otherwise he shall forthwith refer the mat-
ter to the prosecuting attorney or other attorney charged by law with
prosecution for investigation prior to the issuance of warrant.

The Clermont County Municipal Court declined to issue a warrant. Instead, it re-

ferred the case to Clermont County Prosecutor D. Vincent Faris. And Faris, under-

standably, declined to pursue charges.

Becker then filed the mandamus petition at issue here. He asks this Court to

order Prosecutor Faris to conduct a more thorough investigation of the wrongdoing

Becker alleged.

ARGUMENT

Becker’s mandamus petition argues that Faris acted illegally by declining to

investigate allegations that the Governor, by issuing his public-health orders, vio-

lated ten criminal laws. The claim fails for a number of reasons. For one thing,

4
Becker lacks standing to seek this relief—“a citizen lacks standing to contest the pol-

icies of the prosecuting authority when he himself is neither prosecuted nor threat-

ened with prosecution.” Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973) (cita-

tions omitted). And anyway, based in no small part on the frivolousness of Becker’s

underlying allegations, Becker cannot satisfy any of the three requirements of man-

damus relief.

Prosecutor Faris may elaborate on these issues if asked to do so. The Attorney

General is filing this brief to make just two discrete points. First, R.C. 2935.10(A)

leaves prosecutors with discretion to investigate or charge criminal activity referred

to them, as in all other cases. Even assuming that the exercise of that discretion is

subject to judicial review, a prosecutor never abuses his discretion by declining to

pursue charges in response to criminal allegations that may be addressed through the

General Assembly’s impeachment power. Second, this Court should impose sanc-

tions to deter this sort of political stunt from becoming commonplace.

1. Representative Becker’s mandamus petition is predicated on the idea that

prosecutors must conduct a thorough investigation every time criminal allegations

are referred to them under R.C. 2935.10(A). That premise is incorrect.

5
 First, R.C. 2935.10(A) does not require prosecutors to conduct an investiga-

tion meeting some undefined degree of thoroughness. This follows from the text,

which says, again:

Upon the filing of an affidavit or complaint as provided by sec-

tion 2935.09 of the Revised Code, if it charges the commission of a fel-
ony, such judge, clerk, or magistrate, unless he has reason to believe that
it was not filed in good faith, or the claim is not meritorious, shall forth-
with issue a warrant for the arrest of the person charged in the affidavit,
and directed to a peace officer; otherwise he shall forthwith refer the matter
to the prosecuting attorney or other attorney charged by law with prosecution
for investigation prior to the issuance of warrant.

R.C. 2935.10(A) (emphasis added)

Note that the statute does not require anything of the prosecutor to whom an

allegation is referred. The statute says that the court “shall” refer the matter in

some circumstances “for investigation,” but it imposes no duty whatever on prose-

cutors. But even if there were such a duty, see State ex rel. Bunting v. Steyr, 147 Ohio

St. 3d 462, 466; 2016-Ohio-5781, ¶¶17–18 (alluding to an “obligation” to investi-

gate), a proper “investigation” often consists of nothing more than reading the com-

plaint and deeming it unworthy of further examination. Imagine, for example, that a

citizen had filed a complaint stating that Governor DeWine, during the last full

moon, turned to a werewolf and held up a liquor store. Or suppose someone alleged

that Governor DeWine, by issuing his public-health orders, committed the crime of

“murder.” These allegations are facially frivolous, and the only responsible

6
“investigation” would consist of reading the allegations and ignoring them. The

same logic supports the prosecutorial decision here. Becker alleges that Governor

DeWine violated numerous criminal laws in the exercise of his gubernatorial powers.

The allegations are frivolous on their face, whatever one may think of the Governor’s

policy decisions. It would be a strange proposition that a private citizen could compel

action by a prosecuting attorney when professional law enforcement cannot—and

yet cases presented by law enforcement are declined for prosecution every day.

There are additional reasons a prosecutor might decline to conduct an “inves-

tigation” upon reading the complaint. For example, the prosecutor might decide

that another governmental actor or agency is better positioned to investigate the

claims at issue. That basis for declining further investigation decides this case. Even

if Becker’s allegations passed the laugh test, our Constitution already provides a

mechanism for holding executive officers responsible for criminal abuses of author-

ity: under Article II, Section 23, the House may impeach and the Senate may con-

vict. In impeachment proceedings, the General Assembly can bring tremendous re-

sources to bear in deciding whether any wrongdoing occurred—and it can do so in

an open process that the public may observe. In fact, the petitioner, in his role as a

state representative, attempted to invoke this constitutional machinery and was

roundly rejected by his colleagues. He turned to his present theory only after his

7
impeachment effort was stillborn. Prosecutor Faris correctly declined to waste fur-

ther time and resources investigating alleged wrongdoing that is better investigated,

if it is to be investigated at all, by the General Assembly. Indeed, Prosecutor Faris

responsibly refused to exercise his investigative authority, and ought to be praised ra-

ther than criticized, by reasonably deciding that a county prosecutor ought not be

dragged into Becker’s attempt to accomplish in court what he could not accomplish

legislatively. In sum, not only did Prosecutor Faris act appropriately by declining to

investigate further, it would have been inappropriate to do more.

2. This Court should exercise its inherent equitable authority to issue sanc-

tions.

Ohio’s government “is instituted for” the People’s “equal protection and

benefit.” Ohio Const., art.I, §2. County prosecutors are given the awesome task of

investigating crimes that affect the lives of Ohioans. And the courts are assigned the

equally awesome task of adjudicating disputes—criminal disputes, child-custody dis-

putes, and so much more—that will have enormous consequences for the parties

before them. It is therefore troubling when an elected representative, even one act-

ing in his personal capacity, wastes prosecutorial and judicial resources on a frivolous

political stunt. That is exactly what Becker has done. And he has encouraged others

to follow his example. See The Becker Report – September 2020, online at https://

8
web.archive.org/web/20201013141032/http://www.beckergop.com/2020/09/

(last visited Oct. 21, 2020).

To ensure others do not heed this call, this Court should set a precedent that

such political stunts will be met with sanctions. This Court, exercising its authority

to sanction “the filing of frivolous … proceedings,” State ex rel. Bardwell v. Cuyahoga

Cty. Bd. of Comm’rs., 2009-Ohio-5573, ¶26 (8th Dist.) (per curiam) (internal quota-

tion marks omitted); see also Civ. R. 11, should order Becker to pay attorney’s fees to

Prosecutor Faris. Alternatively, it should order Becker to spend a day observing

criminal trials in open court, so that he can better understand the gravity of the mat-

ters for which prosecutorial and judicial resources must be preserved.

CONCLUSION

It is ironic that those who most readily resort to fascist imagery and name-

calling are also quickest to demand that the prosecutor act as stooge for the mob, or

of popular opinion—the tools of the tyrant. The rule of law is a lock on that toolbox.

Our constitutional system is designed to prevent the merely unpopular from being

criminalized. Prosecutor Faris has done his part to uphold that system, and there is

no basis for awarding a writ of mandamus. This Court should deny the petition.

9
Respectfully submitted,

/s/ Dave Yost

DAVE YOST
Ohio Attorney General
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980
866-846-8195 fax
Counsel for Amicus Curiae
Ohio Attorney General Dave Yost

10
 CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Amicus Brief of the Ohio Attorney Gen-

eral was served by regular U.S. mail this 22nd day of October, 2020, upon the follow-

ing counsel:

Nicholas R. Owens D. Vincent Faris

Law Office of Nicholas R. Owens Clermont County Prosecutor
88 Station Drive 76 South Riverside Drive, 2nd Floor
Georgetown, OH 45121 Batavia, OH 45103
(513) 706-2634 513-732-7313
[email protected]

/s/ Dave Yost

Dave Yost
Ohio Attorney General