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Ohio Supreme Court: Only Statute, Not Agency Policy, Creates Legal Duty Enforceable in Mandamus

by Jacob Barrett

On February 7, 2022, the Supreme Court of Ohio denied a writ of mandamus petition filed by a state prisoner challenging a decision by the state Department of Rehabilitation and Correction (DRC) to keep him incarcerated, holding his claim was not cognizable because it was raised to an agency’s internal policy that does not create a legal duty enforceable in mandamus.

After serving a 16-year sentence for sexual battery with DRC, David Shie was released in August 2020, subject to mandatory post-release control by the state Adult Parole Authority (APA) for five years.

He was then charged with violating the conditions of that control when he allegedly solicited sex from someone he believed to be a 15-year-old girl named “Gabby,” who was in fact an undercover law-enforcement officer. Shie was then arrested and charged with that crime as well as four violations of post-release control. He later admitted to the violations.

A hearing was held, but Shie waived his right to appear, his right to counsel, his right to call witnesses and present evidence, as well as his right to cross-examine adverse witnesses. Based on his admissions and information presented by APA, a hearing officer found that Shie committed each of the alleged violations and imposed a net prison term of 235 days—270 days less 35 days’ credit for the time Shie had been jailed since his arrest.

Shie returned to DRC custody. There he filed a writ of mandamus pro se with the Court, arguing that since APA had not charged him within 10 business days of his arrest as required by DRC Policy 100-APA-14, he should be released. Alternatively, he asked the Court to force APA to impose a shorter prison term or have a chief hearing officer review the prison sanction in accordance with DRC Policy 105-PBD-09, since he further argued that APA failed to follow its internal policies governing the hearing process for a violation of post-release control.

The Court held that Shie’s first argument failed “because a writ of mandamus is not the proper remedy,” quoting State ex rel. Johnson v. Ohio Parole Bd, 80 Ohio St.3d 140 (1997) to note that “‘[h]abeas corpus, rather than mandamus, is the appropriate action for persons claiming entitlement to immediate release from prison.’”

As to his claim for alternative relief, Shie contended that the most serious violation he committed warranted only a 90-day prison term under DRC policy. He further argued that no prison term longer than 180 days could be imposed without the APA Chief Hearing Officer’s approval, which did not happen in this case.

The Court, however, held Shie was not entitled to this relief in a mandamus action, either. Creation of a duty enforceable in mandamus is a legislative function, the Court said, and “an internal policy of an agency does not create a legal duty enforceable in mandamus.”

Moreover, the Court continued, as a statutory matter, the prison term imposed on Shie was not unlawful, since “R.C. 2967.28(F)(3) authorizes the imposition of a prison term of up to nine months for a violation of post-release-control conditions.”

Since Shie had not “shown the existence of a clear legal right or clear legal duty enforceable in mandamus,” the Court said he was not entitled to any of the relief he sought, and his petition was denied. See: Shie v. Ohio Adult Parole Authority, 2022-Ohio-270.

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Related legal case

Shie v. Ohio Adult Parole Authority