Opinion
No. 86-278
Decided December 24, 1986.
Mandamus — Writ denied, when — Burden of establishing right is upon relator.
APPEAL from the Court of Appeals for Franklin County.
This is an appeal as of right from the denial of a writ of mandamus by the court of appeals.
On July 12, 1984, appellant, Henry J. Fant, filed a mandamus complaint in the court of appeals. Appellant sought an order requiring the Department of Administrative Services to provide him with copies of various specified certification eligible lists, as public records, which he had previously requested but which had not been furnished. The matter was referred to a referee in the fall of 1984.
Thereafter, following various discovery procedures, a combined pretrial and hearing on appellee's motion for summary judgment was held. The parties thereafter submitted their briefs on the merits. Subsequently, and after the time for production of evidence, the referee on May 13, 1985, in a detailed report with findings of fact and conclusions of law, recommended that respondent's motion for summary judgment be overruled and that mandamus relief be denied.
The court of appeals overruled appellant's objections to the report, adopted the report and reasons of the referee, denied the writ of mandamus, and overruled appellee's motion for summary judgment.
In the proceedings below appellant conceded, and here admits, that he received copies of all the twenty-two certification eligible lists requested of appellee, and some lists more than once, prior to submission of the case to the referee. Appellant, however, alleged that copies of two of the lists were illegible and provided the referee with copies of those two lists which were apparently furnished to appellant by appellee on October, 1, 1984.
For purposes of this appeal, the pertinent portion of the referee's report questioned by appellant is the conclusion that while the copies of the two lists in question attached to appellant's brief were illegible, appellant "* * * has not alleged or filed any evidence indicating that the copies attached to * * * [appellant's] brief are true and accurate reproductions of the original certification eligible lists received by * * * [appellant], nor has * * * [appellant] attempted to file with this court the original certification eligible lists numbers 82219 and 83401 received by * * * [appellant] from * * * [appellee]. Accordingly, the referee is unable to ascertain whether the original certification eligible lists received by * * * [appellant] from * * * [appellee] on, admittedly, more than one occasion were illegible as contended by * * * [appellant] or whether the copies attached to * * * [appellant's] brief are illegible copies of otherwise legible documents."
Henry J. Fant, pro se. Anthony J. Celebrezze, Jr., attorney general, and Thomas L. Rosenberg, for appellee.
Appellant urges that the referee was duty bound under Civ. R. 53 and Evid. R. 614 to require appellee to produce the necessary documentation to support appellant's claim that the original lists furnished by appellee were illegible. The foregoing rules cited by appellant include the discretionary word "may." Thus, appellant's contention must fail.
Appellant's primary contention should have been more appropriately directed to the accuracy of the referee's conclusion that there was insufficient proof to establish that the original lists in question submitted by the appellee were illegible. Nonetheless, a review of the proceedings below reflects that appellant had ample time and opportunity as he vigorously pursued discovery, to submit, if he chose, the necessary documentation to support his claim. As we noted in the third paragraph of the syllabus in State, ex rel. Szekely, v. Indus. Comm. (1968), 15 Ohio St.2d 237 [44 O.O. 2d 225], "[b]efore a writ of mandamus will be granted, a clear legal right thereto must be shown, and the burden of establishing such right is upon the relator. * * *" No such clear legal right has been shown by appellant in the instant case.
For the foregoing reasons, the judgment of the court of appeals denying the writ of mandamus is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.