City of Rocky River v. State Employment Relations Bd.

• Decision Date: 10 February 1989
• Docket Number: No. 87-157,87-157
• Citation: 535 N.E.2d 657,41 Ohio St.3d 602
• Parties: , 131 L.R.R.M. (BNA) 2946, 1989 SERB 4-27 CITY OF ROCKY RIVER, Appellant, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellees.
• Court: Ohio Supreme Court

Page 602

41 Ohio St.3d 602

535 N.E.2d 657, 131 L.R.R.M. (BNA) 2946, 1989 SERB 4-27

CITY OF ROCKY RIVER, Appellant, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellees.

No. 87-157.

Supreme Court of Ohio.

Submitted Jan. 17, 1989.

Decided Feb. 10, 1989.

Appeal from the Court of Appeals for Cuyahoga County, No. 51299.

Calfee, Halter & Griswold, Mark I. Wallach, William E. Coughlin, John E. Gotherman, Cleveland, and Russell A. Olson, Law Director, Rocky River, for appellant.

Joseph W. Diemert, Jr. & Associates Co., L.P.A., Mayfield Heights, Joseph W. Diemert, Jr., Cleveland, and William F. Schmitz, Chardon, for appellee Rocky River Firefighters Assn., Local 695.

Paul L. Cox, Columbus, and Kay E. Cremeans, Ashville, in support of motion, for amicus curiae, Fraternal Order of Police of Ohio, Inc.

Cloppert, Portman, Sauter, Latanick & Foley, Robert W. Sauter, and Russell E. Carnahan, Columbus, in support of motion, for amicus curiae, Fraternal Order of Police, Capital City Lodge No. 9.

Conway, Barclay, Deyo & Kurant Co., L.P.A., and Donald K. Barclay, Cleveland, in opposition to motion, for amicus curiae, Ohio Mun. League.

Kelley, McCann & Livingstone and Stephen M. O'Bryan, Cleveland, in opposition to motion, for amicus curiae, Ohio Mun. Attorneys Assn.

ON MOTION FOR RECONSIDERATION OF DENIAL OF MOTION FOR REHEARING.

The motion for reconsideration is granted as to all issues in this cause. See (1988), 39 Ohio St.3d 196, 530 N.E.2d 1, and (1988), 40 Ohio St.3d 606, 533 N.E.2d 270. Case to be decided on the merit briefs previously filed. No oral argument.

SWEENEY, DOUGLAS, HERBERT R. BROWN and RESNICK, JJ., concur.

MOYER, C.J., and HOLMES and WRIGHT, JJ., dissent.

HERBERT R. BROWN, Justice, concurring.

Ordinarily we do not write in procedural matters, and I would not in this instance, but for one dissent which lays a false claim to the benefit of precedent, fails in a tortuous attempt to distinguish Joseph v. Dever (case No. 86-1688), and inaccurately states the facts of record.

First, the motion for reconsideration at issue was filed within ten days of the final decision in this case. The motions for rehearing filed on November 14, 1988 were granted in part. A clarification was issued on December 22, 1988. Thus the opinion of this court was not finalized until December 22, 1988. The motion before us was filed on January 3, 1989. While this may appear to be more than ten days after the decision, such is not the case. January 1 fell on Sunday and January 2 was a legal holiday (New Year's Day). Thus the ten-day period which would seemingly have expired on January 1 was extended (in accordance with the law) to January 3, the date the motion was filed.

Second, Joseph v. Dever, supra, cannot be distinguished. A denial of a motion to certify adjudicates the dispute between the parties every bit as much as a decision by this court on the merits. Our rules make no separate provision for motions to rehear decisions on motions to certify.

Such motions fall under Section 1, Rule IX, and must be filed within ten days of the decision. ¹ Surely no one can embrace the logical result of the reasoning contained in one of the dissents--that there is no rule and no time limitation upon the reconsideration of our decisions on motions to certify. In Joseph v. Dever, supra, an author of one of today's dissents voted for not only a second motion to reconsider but also a third. Further (unlike the present case), there was no intervening decision by the court to trigger an additional period of time for the filing of the Dever motions.

Third, when one dissent labels the present case unprecedented, the dissent fails to recognize the court's history. This court and its predecessors have reversed decisions after the denial of a motion to rehear. Such was the case in Wisniewski v. Wisniewski (1985), 20 Ohio St.3d 20, 20 OBR 137, 485 N.E.2d 248 (rehearing denied on October 23, 1985; rehearing granted, case allowed, and case reversed by a vote of five to one on October 30, 1985).

In OAMCO v. Lindley (1987), 29 Ohio St.3d 1, 29 OBR 122, 503 N.E.2d 1388, this court, without dissent, took action on a motion for rehearing after a first motion for rehearing had been ruled upon. In that case, we said:

"On November 26, 1986, this court, on rehearing, decided the within cause. Appellee has now filed an additional motion for rehearing contending that the scope and effect of our ruling with regard to the prospective application of the decision is unclear and thereby presents the Tax Commissioner with difficulty in implementing our ruling uniformly and fairly.

"Finding several of the points made by the commissioner to be well-taken, the court treats appellee's motion for rehearing as a motion for clarification and [1989 SERB 4-28] grants the motion." Id. at 2, 29 OBR at 122, 503 N.E.2d at 1389. See OAMCO v. Lindley (1986), 27 Ohio St.3d 7, 27 OBR 427, 500 N.E.2d 1379.

Further, in Newsome v. Newsome (case No. 85-819), a rehearing was denied on August 30, 1985. A motion to "amend" the motion for rehearing was made on August 30, 1985. The author of one of today's dissents saw no problem in voting to grant a motion to "amend."

Viock v. Stowe-Woodward Co., 34 Ohio St.3d 602, 517 N.E.2d 544 represents yet another instance in which we (by allowing certiorari under a different case number) in effect reconsidered a case after denial of a motion for rehearing (see case Nos. 86-729, 86-2048, 87-220).

The fact is that no precedent governs the procedural matter which is before us. One dissent cites no case which holds that the action taken here is unlawful or improper. ² There is nothing unlawful in the grant of a motion which is pending before us, where the grant expresses the will of a majority of the justices sworn to office on this court.

A final point is to be made, which perhaps best identifies the animus which informs one dissent in the present case. A change in the court took place between the decision on December 22, 1988 and the motion for reconsideration filed on January 3, 1989. Recognizing this change, one dissent states: "The decision of the majority here is very disturbing to me in that it unlawfully overturns a determination upon major issues made by the majority of the court as constituted last term. More specifically, this later pronouncement of the court will undoubtedly lead to a position significantly at odds with the stance of one member of the prior majority who is no longer present to articulate his position." The dissenter, if disturbed by such a prospect, should not ignore the history of 1986-1987. Examination of the rehearing docket for early 1987 reveals that on fifteen occasions members of the new court voted to rehear determinations "lawfully" made by the previous court in 1986. ³ In 1987 the justices who dissent today did not approve of earlier court determinations and set about to overturn them in (when compared to this year's transition) a somewhat wholesale fashion. ⁴ Precedent (whether in substantive or procedural matters) is not [1989 SERB 4-29] a rationalization to be turned on and off to suit the whim of the beholder.

MOYER, Chief Justice, dissenting.

I concur in the thrust of the dissent of Justice Holmes; however, I believe the reference to "stare decisis " is premature, as no decision of the court changing the opinion in the case has been voted or announced.

It is also appropriate to set forth several significant facts that distinguish from this case the votes for rehearing in the cases referred to in footnote 3 of Justice Brown's concurrence in which rehearings of merit decisions were granted:

1. In none of those cases was the motion before the court a motion to reconsider the denial of a motion to rehear a merit decision. All motions filed in those cases were motions to rehear a decision of the court on the merits, and were filed pursuant to Section 1, Rule IX of the Rules of Practice of the Supreme Court of Ohio.

2. The votes of "Moyer, C.J." to rehear those cases that had been decided just prior to his becoming a member of this court were based upon the extraordinary and unprecedented circumstances under which those cases were selected for oral argument, in violation of Section 1, Rule VII of the Rules of Practice of the Supreme Court of Ohio; were decided and announced during the last two months of the court session in 1986; and were the source of opinions of such low quality that in at least one of the cases two opposing parties requested a reconsideration or clarification of the court's opinion.

3. Although voting that rehearings should be granted in the cases cited by Justice Brown, "Moyer, C.J." did not participate in the rehearing of the merits in any of those cases.

Finally, perhaps the most important conclusion to be drawn from the most recent vote in this case and all that has been written about that vote is that we should adopt a judicious and rational written procedure for the disposition of motions that are filed under the circumstances of the motion filed herein and those referred to in Justice Brown's concurrence.

WRIGHT, J., concurs in the foregoing dissenting opinion.

HOLMES, Justice, dissenting.

I strongly dissent from the unprecedented and unlawfully determined decision of the majority.

The motion upon which the majority purports to base its determination has no legal basis in the rules of court, either for this court, any appellate court below, or the federal courts and, moreover, is clearly prohibited by the limitations upon post-decision motions contained in the Rules of Practice of the Supreme Court. As such, the action today constitutes the unlawful reviving of a finalized determination of this court, which should be barred by the doctrine of res judicata.

The motion filed by appellee Local 695 with this court on January 3, 1989 was entitled a "Motion for Reconsideration of the Denial of Motion for Rehearing." This, of course, was preceded by a decision in...