Cleveland Fire Fighters Assoc. Local 93 of the Internatl. Assoc. of Firefighters v. Jackson, 2006 Ohio 800 (OH 2/22/2006), 87708.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtDyke
Citation2006 Ohio 800
Decision Date22 February 2006
Docket NumberNo. 87708.,87708.
PartiesCleveland Fire Fighters Assoc. Loc. 93 of the International Assoc. of Fire Fighters & All Individual Members of Local 93 Iaff, et al., Petitioners, v. Frank G. Jackson, Mayor, et al, Respondents.

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2006 Ohio 800
Cleveland Fire Fighters Assoc. Loc. 93 of the International Assoc. of Fire Fighters & All Individual Members of Local 93 Iaff, et al., Petitioners,
Frank G. Jackson, Mayor, et al, Respondents.
No. 87708.
Court of Appeals of Ohio, Eighth District, Cuyahoga County.
Date of Journalization: February 22, 2006.

Petition for Writ of Mandamus.


Joseph W. Diemert, Jr., Esq., Thomas M. Hanculak, Esq., 1360 S.O.M. Center Road, Cleveland, Ohio 44124-2189, for Petitioners.

Robert J. Triozzi, Esq., Director of Law, Thomas J. Kaiser, Chief Trial Counsel, City of Cleveland, 601 Lakeside Ave., Room 106, Cleveland, Ohio 44114-1077, James M. Petro, Esq., Attorney General of Ohio, 30 East Broad St., 26th Floor, Columbus, Ohio 43215-6001, for Respondents.


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{¶ 1} On January 30, 2006, the relators, who represent the fire fighters in the City of Cleveland (hereinafter referred to as the Fire Fighters),1 commenced this mandamus action against the City of Cleveland2 to compel the respondents to comply with R.C. 9.481 and to stay any disciplinary hearings against any Cleveland employees for violating the City's residency requirement. The gravamen of this mandamus action is that R.C. 9.481 renders the City's Charter provision requiring residency of its employees null and void. On February 2, 2006, the respondents filed a motion to dismiss.

{¶ 2} On February 17, 2006, the Fire Fighters filed their response. First, the Fire Fighters moved to amend their complaint by adding "State ex rel." to the caption,3 and the affidavits of

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the named relators.4 The amended petition also dropped William Ruck as a relator5 and added Fire Fighters Local 93 President Robert Fisher as a relator. The Fire Fighters also filed a "Motion to hold petition in abeyance" until the effective date of R.C. 9.481, on or about May 1, 2006, and a brief in opposition to Cleveland's dispositive motion. For the following reasons, this court grants the Fire Fighters' motion to amend the complaint, denies the motion to hold the petition in abeyance, and grants the respondents' motion to dismiss.

{¶ 3} Civil Rule 15(A) directs that leave should be freely given to amend the complaint. It is obvious that the Fire Fighters offer the amended complaint to cure several potentially fatal pleading deficiencies. Thus, the court grants the motion to amend.

{¶ 4} This court concludes that the matter is not yet justiciable. The court further concludes that because Relators urge us to find that the "City Charter is in conflict with the

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Constitution and the laws of the State of Ohio and the United States of America and should be deemed null and void[,]" this matter is not simply an application for mandamus, but a declaratory judgment action which is beyond the original jurisdiction of this court.

{¶ 5} City of Cleveland Charter Section 74 requires each City employee to become a bona fide resident of Cleveland within six months of the date of appointment. R.C. 9.481, signed by Governor Taft on January 27, 2006, provides that "no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state." In adopting this statute the General Assembly in Section 2 specifically invoked Article I, Section 16 and Article II, Section 34 of the Ohio Constitution which provides that "Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power."

{¶ 6} Nevertheless, Mayor Jackson has concluded that R.C. 9.481 is an unconstitutional infringement on the home rule powers of

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municipalities under Article XVIII, Section 37 of the Ohio Constitution. Therefore, he has announced to all City employees that Cleveland will enforce Charter Section 74; any City employee who violates that residency requirement will be terminated pursuant to the City of Cleveland's Civil Service Rule 17, "Termination of Non-residents." (January 18, 2006 Notice from Mayor Jackson to City employees, attached as Exhibit C to the Fire Fighters' petition.)

{¶ 7} The Fire Fighters commenced this mandamus action to compel compliance with the new statute and alleged in relevant part as follows:

{¶ 8} "9. On or about January 27, 2006, Senate Bill 82, Revised Code 9.481 (see attached `Exhibit B') was signed by Governor Taft. Charter Section 74 is in direct conflict, by specifically imposing a contradictory residency requirement as a condition of employment.

{¶ 9} "* * *

{¶ 10} "12. The City Charter is in conflict with the Constitution and the laws of the State of Ohio and the United States of America and should be deemed null and void.

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{¶ 11} "13. Respondents have no compelling governmental interest for the imposition and enforcement of the residency requirement upon the Fire Fighters in contravention of R.C. 9.481 and the determination of the Ohio State General Assembly.

{¶ 12} "* * *

{¶ 13} "16. The Ohio Constitution, Article II, §34, gives specific authority to the General Assembly to enact R.C. 9.481 in that it provides for the `comfort, health, safety and general welfare' of all employees and such Constitutional provision sets forth that `no other provisions' (sic) of the Ohio Constitution, State Statutes, or local laws, even if adopted pursuant to `Home Rule' under Article XVIII, §3, shall `impair or limit their power.' (Supremacy Clause)

{¶ 14} "17. R.C. 9.481 is a matter of statewide concern, and therefore may not be contradicted by any Political Subdivision enactment under Art. XVIII §3, as such matters are specifically reserved for the General Assembly by the language set forth in the `Home Rule' provisions."

{¶ 15} The requisites for mandamus are: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief and (3) there must be no adequate remedy at law. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914 and

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State ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41, 374 N.E.2d 641.

{¶ 16} In determining whether these requirements are met herein, this court notes as an initial matter, that although the Governor has signed R.C. 9.481, it has no emergency provisions and is not an appropriations bill. Thus, pursuant to Article II, Section 1c of the Ohio Constitution it does not become effective until ninety days after the Governor has filed it with the Office of the Secretary of State. Accordingly, because the statute is not yet in effect, this matter is not ripe for mandamus.

{¶ 17} The Supreme Court of Ohio has held that mandamus does not lie for prospective relief. "Mandamus will not lie to remedy the anticipated nonperformance of a duty. `* * * The function of mandamus is to compel the performance of a present existing duty as to which there is a default. It is not granted to take effect prospectively, and it contemplates the performance of an act which is incumbent on the respondent when the application for a writ is made.' State ex rel. Federal Homes Properties, Inc. v. Singer (1967), 9 Ohio St.2d 95, 96." State ex rel. Home Care Pharmacy, Inc. v. Creasy (1981), 67 Ohio St.2d 342, 343-344, 423 N.E.2d 482. The Supreme Court reaffirmed this principle in Ohio Department of Administrative Services v. State Employment Relations Board (1990), 54 Ohio St.3d 48, 53, 562 N.E.2d 125 — "* * * we do not issue an anticipatory writ of mandamus." See, also Mihocka v. Ziegler

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(1971), 28 Ohio Misc. 105, 109, 274 N.E.2d 583"Mandamus, of course, will not lie in anticipation of an omission of duty, regardless how strong the presumption may be that the person will refuse to perform their duty when the proper time arrives."

{¶ 18} The Fire Fighters implicitly concede that this mandamus action is not yet ripe by moving this court to hold the petition in abeyance until the statute becomes effective. They argue that judicial economy would be ill-served by dismissing the petition now when it would only be refiled within ninety days. Additionally, holding the matter in abeyance would allow full briefing on the merits and allow a prompt resolution on or very quickly after the...

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