State, ex rel. Coulverson v. Ohio Adult Parole Auth.

• Decision Date: 25 September 1991
• Docket Number: No. 91-133,91-133
• Citation: 577 N.E.2d 352,62 Ohio St.3d 12
• Parties: The STATE, ex rel. COULVERSON, Appellant, v. OHIO ADULT PAROLE AUTHORITY et al., Appellees.
• Court: Ohio Supreme Court

Page 12

62 Ohio St.3d 12

577 N.E.2d 352

The STATE, ex rel. COULVERSON, Appellant, v. OHIO ADULT PAROLE AUTHORITY et al., Appellees.

No. 91-133.

Supreme Court of Ohio.

Submitted March 12, 1991.

Decided Sept. 25, 1991.

Appellant, Ralph P. Coulverson, filed a mandamus action in the Court of Appeals for Franklin County against appellees, the Ohio Adult Parole Authority ("APA") and its chief, John W. Shoemaker. The court granted summary judgment for appellees. Coulverson appeals.

According to Coulverson's complaint, he was charged in 1989 with receiving stolen property. Since he was on parole at the time of the offense, the APA commenced parole revocation proceedings. Before the final hearing, Coulverson met four times with assistant state public defenders. Each time, he refused to accept representation by the Ohio Public Defender Commission, claiming that an unspecified conflict of interest existed. At the second of these meetings, Coulverson asked the assistant public defender for discovery, the right to call witnesses, and cross-examination of adverse witnesses. According to Coulverson, the assistant public defender promised to bring these requests to the APA's attention.

On January 25, 1990, the Parole Board held Coulverson's final hearing. Coulverson insisted that, although he had refused a public defender, he had not waived his right to counsel. Coulverson also objected to the hearing on the grounds that he had been denied discovery and the opportunity to call two inmates as witnesses. The board overruled his objections.

A parole officer testified and submitted a journal entry showing that Coulverson had pled guilty to a misdemeanor charge of receiving stolen property. At this point, according to Coulverson's complaint, the board informed Coulverson that it found him guilty of a parole violation on the strength of the entry, and that he would not be allowed to call witnesses on that charge.

Coulverson's complaint alleged that he was denied due process because the board did not provide him with conflict-free counsel, denied him discovery, did not let him call witnesses, and accepted the judgment entry as conclusive proof that he violated parole.

The APA moved for summary judgment. In support of its motion, the APA submitted, inter alia, copies of Coulverson's guilty plea to receiving stolen property and the judgment of conviction. Coulverson filed a brief in opposition and a cross-motion for summary judgment, but submitted no evidence. Coulverson also requested a continuance in order to conduct discovery. To support this request, he submitted a purported affidavit, which is witnessed and contains Coulverson's declaration "under the penalty of perjury" that his statements are true, but is not notarized.

The court of appeals entered summary judgment for the APA. From this judgment, Coulverson appeals as of right.

Ralph P. Coulverson, pro se.

Lee I. Fisher, Atty. Gen., and Gerald E. Dailey, Columbus, for appellees.

PER CURIAM.

In this appeal, Coulverson contends that the court of appeals erred in denying a continuance and granting summary judgment. We affirm.

Coulverson asked for a continuance under Civ.R. 56(F) for the purpose of conducting discovery in this mandamus action, but the court of appeals refused. Coulverson assigns this refusal as error. However, Coulverson did not submit a valid affidavit for the court to consider under Civ.R. 56(F). His "affidavit" is not sworn before anyone authorized to give oaths. It is void. Thus, the court of appeals could not act under Civ.R. 56(F).

We turn to the propriety of granting summary judgment. A court may render summary judgment only if the evidence, construed most strongly in the non-moving party's favor, shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Civ.R. 56(C). Coulverson contends that summary judgment was improper here because genuine issues of material fact exist.

Rejecting Coulverson's claim that he was denied counsel at the parole hearing, the court of appeals noted that Coulverson rejected the public defender's proffered services. Coulverson argued that the public defender had a conflict of interest; however, Coulverson submitted no evidence of any conflict.

Coulverson argues that he did not need to submit such evidence. To obtain summary judgment, he argues, the APA had to prove that no conflict existed. We disagree. The moving party need not support its motion with affidavits negating every claim of the non-moving party. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 114, 526 N.E.2d 798, 800-801, fn. 5. Instead, the moving party must "specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond." Mitseff, supra, syllabus.

The APA carried this burden. Citing Coulverson's own complaint, the APA pointed to three specific occasions when Coulverson refused a public defender. The APA thus specifically delineated the basis on which it sought summary judgment: that Coulverson had not been denied counsel, but had refused to accept it when offered. This was sufficient to establish the absence of a genuine issue.

It was then Coulverson's task to negate the APA's showing by establishing that a genuine issue existed. His conclusory, nebulous allegation of a conflict of interest was not enough. See Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. Since Coulverson declined to submit evidence, the court of appeals had no choice but to grant summary judgment against him.

Rejecting Coulverson's claim that the APA denied him discovery, the court of appeals held that Coulverson's discovery request to the public defender, who did not represent him, was "insufficient to constitute a request of respondents." Coulverson responds that his request to the public defender should be deemed a request to the APA, because the APA requires that inmates request discovery through the public defender. Like his conflict-of-interest argument, however, this claim is devoid of evidentiary support.

Coulverson complains that the Parole Board refused to let him call as witnesses inmates of...