616 N.E.2d 285 (Ohio App. 8 Dist. 1992), 61148, Painter v. Graley

Docket Nº:61148.
Citation:616 N.E.2d 285, 84 Ohio App.3d 65
Opinion Judge:FRANCIS E. SWEENEY, Sr., Presiding Judge. FRANCIS E. SWEENEY, Presiding Judge.
Party Name:PAINTER, Appellee, v. GRALEY, Appellant. [*]
Attorney:Joseph R. Compoli, Jr., and James R. Goodluck, Cleveland, for appellee. Joseph R. Compoli, Jr., and James R. Goodluck, for appellee., Danny R. Williams, Law Director, and Harold C. Reeder Assistant Law Director, for appellant.
Judge Panel:KRUPANSKY, J., concurs. BLACKMON, J., dissents. BLACKMON, Judge, dissenting.
Case Date:December 21, 1992
Court:Court of Appeals of Ohio

Page 285

616 N.E.2d 285 (Ohio App. 8 Dist. 1992)

84 Ohio App.3d 65

PAINTER, Appellee,


GRALEY, Appellant. [*]

No. 61148.

Court of Appeals of Ohio, Eighth District, Cuyahoga.

December 21, 1992

Page 286

[84 Ohio App.3d 67] Joseph R. Compoli, Jr., and James R. Goodluck, Cleveland, for appellee.

Page 287

Danny R. Williams, Law Director, and Harold C. Reeder, Asst. Law Director, Cleveland, for appellant.

FRANCIS E. SWEENEY, Sr., Presiding Judge.

Defendant-appellant, Charles L. Graley, timely appeals from the decision of the common pleas court which granted summary judgment in favor of plaintiff-appellee, Shirley Painter. Appellee filed a timely notice of cross-appeal. For the reasons set forth below, we reverse the decision of the common pleas court and enter judgment in favor of appellant.

On October 25, 1988, appellee initiated this action through the filing of a complaint. Thereafter, appellee filed an amended complaint alleging that appellant wrongfully terminated her employment in violation of her rights to freedom of speech and expression, as guaranteed by Sections 2 and 11, Article I of the Ohio Constitution. Appellee further alleged that Section 16, Article I of the Ohio Constitution and R.C. 2305.01 conferred jurisdiction on the court below to hear the instant case.

Appellee filed a motion for summary judgment supported by relevant affidavits and exhibits. Appellant duly filed response briefs. Thereafter, the trial court [84 Ohio App.3d 68] granted appellee's motion and, later, denied appellant's motion for reconsideration.

The facts relevant to the summary judgment are as follows:

Appellee was an employee of the Cleveland Municipal Court, Office of the Clerk of Courts ("Clerk's Office"), from October 1984 to October 1985. Appellee held the position of Chief Deputy Clerk. Appellant was the Assistant Personnel Director for the Clerk's Office during this time period. Appellee was an unclassified civil service employee in the bookkeeping department of the civil division.

In 1985, while still an employee with the Clerk's Office, appellee became a candidate for Cleveland City Council. After she became a candidate, a request dated August 21, 1985 was made for a leave of absence beginning on August 22, 1985. Appellant denied this request.

On September 20, 1985, appellant sent appellee a letter, the body of which reads as follows:

"On August 21, 1985, you submitted a request for an extended leave of absence to seek political office in the City of Cleveland. Without regard to knowing whether or not this administration would accept your request for a leave, you filed petitions to become a candidate for Councilman. As of this date, you still have not contacted this office relative to the disposition of that requested leave of absence.

"Prior to your departure from the Clerk's Office, you made a verbal inquiry to the personnel office regarding this administration's position on employees seeking political office, however this position was not presented to you before you filed with the Cuyahoga County Board of Elections.

"Since that time, this administration, after careful review and consideration, feels that your resignation, and not a leave of absence, would be warranted at this time.

"Therefore, the Clerk would require your written letter of resignation to be received no later than Monday, September 30, 1985 at 4:00 P.M.

"If this office is not in receipt of your resignation by that date, we will assume that you do not intend to comply with the request and your employment will be terminated."

Appellee did not respond to appellant's letter and, on October 30, 1985, appellant sent another letter to appellee, the body of which reads as follows:

"As of this date, this office has not received your written resignation that had been requested from you in our letter mailed to you on September 20, 1985. [84 Ohio App.3d 69]

"As was previously mentioned in that letter, had we not heard from you regarding

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your employment by Monday, September 30, 1985, the Clerk's office would assume that you do not intend to submit a letter of resignation and you would thereafter be terminated as an employee with this office.

"Therefore, as a result, your employment record reflects that you have been dismissed as of October 1, 1985.

"Should your campaign for Councilman not be successful, this office would consider your application should you desire to be re-employed with the Clerk of Courts office."

Appellee was thereafter discharged effective October 1, 1985.

Based on the above evidence, the trial court granted appellee's motion for summary judgment. The case proceeded to a bench trial on the issue of damages, and this appeal follows.

Appellant's first and third assignments of error raise similar issues and will be discussed jointly. They state:

"I. The common pleas court erred in granting summary judgment for plaintiff-appellee where plaintiff-appellee's complaint failed to state a claim upon which relief could be granted."

"III. The common pleas court erred in granting summary judgment for plaintiff-appellee where plaintiff-appellee was not constitutionally protected from being discharged for becoming actively involved in a partisan election campaign."

Appellant argues the trial court erred in granting appellee's motion for summary judgment where appellee's complaint sought relief on the basis of alleged violations of Sections 2 and 11, Article I of the Ohio Constitution. Appellant contends that under the circumstances of the present case, there is no right to the relief sought directly under these provisions of the Ohio Constitution.

Appellee, on the other hand, argues that the courts of Ohio have long since allowed implied causes of action from alleged violations of state constitutional and civil rights. See, e.g., Jeffries v. Ankeny (1842), 11 Ohio 372, 374; Anderson v. Millikin (1859), 9 Ohio St. 568, 580. Appellee also argues that the common pleas courts have inherent jurisdiction to hear and adjudicate a cause of action based upon the Constitution of this state. See, e.g., Section 16, Article I of the Ohio Constitution; Restatement of Torts 2d (1965), Section 874A. The trial court failed to address the issue of an implied cause of action under the relevant sections of the Ohio Constitution and, instead, noted that the "gist of this action is [84 Ohio App.3d 70] one for wrongful discharge in violation of plaintiff's constitutional rights under Ohio law." We agree...

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