Ann L. Neuger v. Michael J. McCullion
| Decision Date | 21 March 1991 |
| Docket Number | 91-LW-2947,58282 |
| Parties | ANN L. NEUGER, Plaintiff-Appellant v. MICHAEL J. McCULLION, ET AL., Defendant-Appellees |
| Court | Ohio Court of Appeals |
For Plaintiff-Appellant: Nwabueze V. Okocha, Okocha & Assoc. Co L.P.A., 650 Rockefeller Building, 614 Superior Avenue, N.W., Cleveland, Ohio 44113
For Michael J. McCullion, Registrar, Ohio Bureau of Motor Vehicles: Anthony J. Celebrezze, Jr., Attorney General, By: Robert W. Patchen, Assistant Attorney General, Office Tower, 10th Fl., 30 East Broad Street, Columbus, Ohio 43266-0410
For City of Shaker Heights and Chief of Police, Walter A. Ugrinic: Margaret Ann Cannon, Director of Law, Terrence Brennan, Assistant Law Director, 3400 Lee Road, Shaker Heights, Ohio 44120
Plaintiff Ann L. Neuger appeals the disposition of her claims for declaratory and injunctive relief in the common pleas court against defendants City of Shaker Heights ("the city)," Shaker Heights police chief Walter A. Ugrinic ("the chief"), and Michael J. McCullion, Registrar of the Ohio Bureau of Motor Vehicles ("the registrar").
Neuger brought suit against the defendants after receiving notice from the registrar, in October 1988, that she would be required to pass a driver's license examination pursuant to R.C. 4507.20 in order to retain her driver's license. This mandate resulted from information provided by police regarding an accident wherein Neuger admittedly mistook her accelerator for the brake pedal while backing out of a grocery store parking space in Shaker Heights. Another driver, waiting in the loading lane to pick up groceries, was struck and injured in the accident. Neuger's suit challenged R.C. 4507.20, and its application to her, on the grounds of constitutional due process and equal protection violations, pursuant to 42 U.S.C. 1983. She sought declaratory and injunctive relief.
The trial court granted Civ. R. 12(B) (1) and Civ. R. 12(B) (6) motions to dismiss by the city and the chief as well as the registrar's motion for summary judgment which challenged jurisdiction. The judge agreed that the court lacked subject matter jurisdiction and further decided that Neuger did not state a constitutional claim upon which relief could be granted.
On appeal, Neuger raises five assignments of error [1] which controvert the dismissal, grant of summary judgment and denial of a continuance for discovery, on constitutional and procedural grounds. A review of the record dictates affirmance.
Neuger's first two assigned errors charge that the court erred in dismissing her claims for lack of jurisdiction in light of her allegations of 42 U.S.C. 1983 violations. She argues that this statute preempts state law and, as a result, the trial court has jurisdiction to hear her claim.
A cause of action, pursuant to 42 U.S.C. 1983, must allege that a person, acting "under color of law," deprived the plaintiff of a constitutionally guaranteed federal right. Cooperman v. Univ. Surgical Assoc. (1987), 32 Ohio St. 3d 191, citing Gomez v. Toledo (1980), 446 U.S. 635; Schwarz v. Ohio State Univ. (1987), 31 Ohio St. 3d 267. The deprivation of a property interest invokes the federal constitutional right of procedural due process and not a substantive constitutional guarantee. Cooperman, supra. Neuger asserts that the suspension of her driver's license would be an unconstitutional deprivation.
In Ohio, a driver's license is a privilege and not a constitutionally guaranteed property right. Doyle v. Ohio Bur. of Motor Vehicles (1990), 51 Ohio St. 3d 46, paragraph two of the syllabus; City of Maumee v. Gabriel (1988), 35 Ohio St. 3d 60; State v. Kivell (1983), 11 Ohio App. 3d 12; State v. Newkirk (1968), 21 Ohio App. 2d 160. As Neuger failed to demonstrate the deprivation of a substantive federal right or the deprivation of a property right without an opportunity to be heard, the trial court correctly found she did not state a 42 U.S.C. 1983 claim upon which relief could be granted. Cooperman, supra; Schwarz, supra. In any case, the U.S. Supreme Court has held even summary suspension procedures are constitutional. Illinois v. Batchelder (1983), 463 U.S. 1112; Mackey v. Montrym (1979), 443 U.S. 1.
Even had Neuger asserted a valid claim, we agree with the trial court, which noted that it lacked subject matter jurisdiction to consider her action for declaratory judgment.
R.C. 2721.12 sets forth in relevant part that when declaratory relief is sought:
"*** if any statute or the ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and shall be heard."
Where, as here, the plaintiff neglects to serve the Attorney General, a trial court lacks jurisdiction to hear her claims challenging the constitutionality-of a statute. Malloy v. Westlake (1977), 52 Ohio St. 2d 103; Ohio Fair Plan Underwriting Assn. v. Reese (1984), 17 Ohio App. 3d 54; Medina Twp. Trustees v. Armstrong Utilities (1983), 9 Ohio App. 3d 14; Hydraulic Press Brick Co. v. Indenendence (1974), 38 Ohio App. 2d 37.
The trial court also properly denied Neuger injunctive relief as she had an adequate remedy at law. Ohio Water Service v. Alban (1975), 42 Ohio St. 2d 501; Leaseway Centers v. Ohio Dept. of Adm. Serv. (1988), 49 Ohio App. 3d 99. R.C. 4507.26 provides a right to appeal an order of the registrar to the common pleas court. Notice to a driver, however, requiring her to submit to a driver's license examination to determine competency to drive, is not an order appealable to the common pleas court. Davison v. Bureau of Motor Vehicles (1975), 46 Ohio App. 2d 86. As Neuger failed to obtain a final order before appealing to the common pleas court, she failed to exhaust her remedies at law and thus is not entitled to injunctive relief. Id. Likewise on that basis, the trial court lacked jurisdiction to hear her claim. Id.
These assignments of error fail.
Neuger's fifth assignment of error alleges the court erroneously granted summary judgment to the registrar. Her third and fourth assigned errors contest the propriety of the trial court's disposition of her claims without permitting her to complete discovery.
The registrar improperly raised the defense of lack of subject matter jurisdiction via a motion for summary judgment. State, ex rel. Dwyer, v. Middletown (1988), 52 Ohio App. 3d 87; Kinney v. Ohio Dent. of Admin. Serv. (1986), 30 Ohio App. 3d 123; Stanley v. Central Intelligence Agency (C.A. 5, 1981), 639 F.2d 1146, certiorari denied 483 U.S. 1020; Kowalezyk v. Walsh (D. Mass. 1979), 482 F.Supp. 959. The trial court, however, in effect, treated the mislabelled motion as a motion to dismiss for lack of jurisdiction. His action was correct. Capital Industries-EMI Inc. v. Bennett (C.A. 9, 1982), 681 F.2d 1107, certiorari denied 459 U.S. 1087; Kemper v. Rohrich (D. Kan. 1980), 508 F.Supp. 444; Mortorano v. Hertz Corp. (E.D.Pa. 1976), 415 F.Supp. 295.
As we previously noted, the trial court properly dismissed Neuger's claims for want of jurisdiction. Because Neuger put forth no cognizable causes of action over which the trial court had jurisdiction, it necessarily follows that there is no "pending action" entitling Neuger to discovery. See Civ. R. 26(B) (1).
Neuger's third, fourth and fifth assignments of error fail....
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