Malloy v. City of Westlake

• Decision Date: 07 December 1977
• Docket Number: No. 76-1361,76-1361
• Citation: 370 N.E.2d 457,6 O.O.3d 329,52 Ohio St.2d 103
• Parties: , 6 O.O.3d 329 MALLOY et al., Appellants, v. CITY OF WESTLAKE et al., Appellees.
• Court: Ohio Supreme Court

Page 103

52 Ohio St.2d 103

370 N.E.2d 457, 6 O.O.3d 329

MALLOY et al., Appellants, v. CITY OF WESTLAKE et al., Appellees.

No. 76-1361.

Supreme Court of Ohio.

Dec. 7, 1977.

Syllabus by the Court

Failure to serve the Attorney General under R.C. 2721.12 with a copy of the proceeding in a declaratory judgment action which challenges the constitutionality of an ordinance precludes a Court of Common Pleas from rendering declaratory relief in that action.

Appellants are firemen employed by the city of Westlake, appellee herein. Prior to November 1, 1972, appellants accumulated one and one-fourth "days" (each day equalling 8 hours) per month of sick leave. If a fireman missed work for a "day" (which involved a 24 hour shift), he used only one "day" (8 hours) of sick leave. However, in 1972, the appellee converted all unused sick leave of the appellants from a daily basis to an hourly basis, to be retroactively applied from November 1, 1969. The appellee, in effect, reduced all unused sick leave earned by the appellants after November 1, 1969, by two-thirds. Furthermore, from and after November 1, 1969, appellants were charged with 24 hours of their accumulated sick leave if they were absent from a normal day's work due to illness.

The appellants filed a declaratory judgment action in the Court of Common Pleas of Cuyahoga County, claiming, inter alia, that the city acted without authority in reducing previously accumulated and unused sick leave earned by the firemen and in improperly interfering with appellants' vested rights.

Motions for summary judgment were subsequently filed by both parties. In their motion, appellants contended, in part, that the city deprived them of a vested right contrary to Section 28, Article II of the Ohio Constitution and that, under R.C. 124.38 and Section 34, Article II of the Ohio Constitution, the city had no authority to restrict the right of its employees to accumulate unused sick leave benefits. The appellants did not serve the Attorney General with a copy of their declaratory judgment action as required by R.C. 2721.12.

In ruling on the motions, the trial court held that although the appellants were entitled to reinstatement of their unused sick leave benefits as they existed prior to November 1, 1969, the appellee could constitutionally place a limit on the accumulation of those benefits.

Upon appeal by both parties, the Court of Appeals dismissed the appeals, holding that the trial court's judgment was void and of no effect, since the appellants failed to serve a copy of the declaratory judgment proceeding upon the Attorney General as required by R.C. 2721.12.

The cause is now before this court pursuant to the allowance of appellants' motion to certify the record.

George, Greek, King, McMahon & McConnaughey and William C. Moul, Columbus, for appellants.

Gareau & Gareau, Patrick A. Gareau and Daniel J. Kolick, Rocky River, for appellees.

SWEENEY, Justice.

The issue in the instant cause is whether failure to serve the Attorney General with a copy of the proceeding in a declaratory judgment action challenging the constitutionality of an ordinance precludes the Court of Common Pleas from rendering a judgment. Appellants contend that Civ.R. 4, which does not require special service upon the Attorney General, supersedes the special service requirement of R.C. 2721.12. We disagree.

The law is clear in Ohio that special statutory provisions, if jurisdictional, are substantive laws of the state and cannot be abridged, enlarged, or modified by the Ohio Rules of Civil Procedure. Section 5(B) of Article IV of the Ohio Constitution; Akron v. Gay (1976), 47 Ohio St.2d 164, 351 N.E.2d 475. However, if these statutory provisions are procedural, the Ohio Rules of Civil Procedure will take precedence unless the rules would by their nature be clearly inapplicable. Civ.R. 1(C).

Although this court has never addressed itself to the issue of whether the requirement of serving the Attorney General under R.C. 2721.12 is a jurisdictional matter, it is clear from the origins and nature of the declaratory judgment action in Ohio, the mandatory language used in R.C. 2721.12, as well as decisions of other jurisdictions construing similar language requiring service upon the Attorney General, that the requirement is jurisdictional.

R.C. 2721.02 of the Declaratory Judgments Act provides:

"Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. * * * "

Although this provision does not extend the jurisdiction of courts over new subject matter (State ex rel. Foreman v. Bellefontaine Municipal Court (1967), 12 Ohio St.2d 26, 28, 231 N.E.2d 70; paragraph three of the syllabus in Sessions v. Skelton (1955), 163 Ohio St. 409, 127 N.E.2d 378; see Borchard, Declaratory Judgments, 233 (2d Ed. 1941)), it does extend the power of the court to grant declaratory relief, provided such relief is already within its jurisdiction to grant (Bellefontaine Municipal Court, supra,[370 N.E.2d 459] at page 28, 231 N.E.2d 70; see Radaszewski v. Keating (1943), 141 Ohio St. 489, 496, 49 N.E.2d 167). Thus, in this special sense, courts in Ohio obtained jurisdiction under R.C. Chapter 2721 to grant declaratory judgments. Ohio Farmers Ins. Co. v. Heisel (1944), 143 Ohio St. 519, 521, 56 N.E.2d 151.

In granting this special power, the General Assembly provided in R.C. 2721.12, as follows:

"When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, the municipal corporation shall be made a party and shall be heard, and 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." (Emphasis added.)

By employing the verb "shall" throughout R.C. 2721.12, the General Assembly manifested a clear intent that the statute's provisions, including service upon the Attorney General, are mandatory. Cleveland Ry. Co. v. Brescia (1919), 100 Ohio St. 267, 126 N.E. 51; Dorrian v. Scioto Conserv. Dist. (1971), 27 Ohio St.2d 102, 271 N.E.2d 834. Because the declaratory judgment is specifically based on statute, it follows that these mandatory provisions are jurisdictional in nature, in that failure to meet these requirements precludes a court from properly rendering declaratory relief. Thus, in the case where a necessary party has not been joined, this court has held that there was no entitlement to declaratory relief. Zanesville v. Zanesville Canal & Mfg. Co. (1953), 159 Ohio St. 203, 111 N.E.2d 922; paragraph one of the syllabus in Cincinnati v. Whitman (1975), 44 Ohio St.2d 58, 337 N.E.2d 773; Gannon v. Perk (1976), 46 Ohio St.2d 301, 348 N.E.2d 342.

Furthermore, it is important to note that the General Assembly, in drafting R.C. 2721.12, included in the same paragraph both the provision requiring joinder of all necessary parties and the provision requiring service upon the Attorney General. Both of these parts of the statute are phrased in mandatory language, and, it would be inconsistent to hold that while the provision requiring joinder is jurisdictional, the provision requiring service on the Attorney General is merely procedural.

Finally, the court notes that the General Assembly specifically provided in R.C. 2721.14 that:

"Sections 2721.01 to 2721.15, inclusive, of the Revised Code shall be so interpreted and construed as to effectuate their general purpose to make the law of this state uniform with the law of those states which enact similar sections * * *."

In states which have adopted statutes similar to R.C. 2721.12, it has been held that the requirement of service upon the Attorney General in a declaratory judgment action is mandatory and jurisdictional. See, e. g., Tobin v. Pursel (Wyo.1975), 539 P.2d 361; Center v. Appleton (1975), 70 Wis.2d 666, 235 N.W.2d 504; Sendak v. Debro (Ind.1976), 343 N.E.2d 779; see, generally, 22 American Jurisprudence 2d 948, Declaratory Judgments, Section 85.

We therefore conclude that where, in a declaratory judgment action challenging the constitutionality of an ordinance, the Attorney General is not served a copy of the proceeding as required under R.C. 2721.12, declaratory relief is precluded.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

O'NEILL, C. J., and CELEBREZZE and WILLIAM B. BROWN, JJ., concur.

HERBERT, PAUL W. BROWN and McCORMAC, JJ., dissent.

McCORMAC, J., of the Tenth Appellate District, sitting for LOCHER, J.

CELEBREZZE, Justice, concurring.

I write solely to address appellants' contention that appellees, a municipal corporation and its administrative officers, have somehow waived the notice which R.C. 2721.12 requires be served upon the Attorney General. This statute does not provide for a waiver, express or implied.

Throughout the course of this litigation appellants have alleged that the disputed municipal ordinance conflicts with R.C. 124.38, and runs afoul of Sections 28 and 34, of Article II of the Ohio Constitution. However, the Attorney General has not, to date, been made aware of these proceedings, and therefore has been unable to identify the parties and the issues so that he might make a determination as to whether the state of Ohio should enter an appearance.

It would appear that the purpose of this notice provision is the enhancement of the quality of constitutional litigation. The enactment of the General Assembly presumes that when a trial court is presented with a claim that a state or local legislative enactment is unconstitutional, declaratory relief may be rendered which effectively nullifies such enactment. Thus the requirement of service upon the Attorney General, together with the...