Rickard v. Ohio Dept. of Liquor Control

• Court: Ohio Court of Appeals
• Writing for the Court: WHITESIDE; MOYER, P.J., and TYACK
• Citation: Rickard v. Ohio Dept. of Liquor Control, 504 N.E.2d 724, 29 Ohio App.3d 133, 29 OBR 149 (Ohio App. 1986)
• Decision Date: 18 September 1986
• Docket Number: No. 86AP-677,86AP-677
• Parties: , 29 O.B.R. 149 RICKARD et al., Appellants, v. OHIO DEPARTMENT OF LIQUOR CONTROL et al., Appellees. *

Page 133

29 Ohio App.3d 133

504 N.E.2d 724, 29 O.B.R. 149

RICKARD et al., Appellants, v. OHIO DEPARTMENT OF LIQUOR CONTROL et al., Appellees. ^*

No. 86AP-677.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 18, 1986.

Syllabus by the Court

1. R.C. 4301.31 requires that an action seeking a declaration of the constitutionality of the statutes providing for a local-option election, and an injunction against the Department of Liquor Control from taking any action against concerned permit holders as a result of a local-option election, be brought in the Court of Common Pleas of Franklin County.

2. An action against a public officer or agency to compel it to perform a public duty or to enjoin it from performing an act contrary to law not only is not an action against the state but cannot be maintained in the Court of Claims since only actions against the state itself may be maintained in the Court of Claims.

3. A permit holder has no constitutional right to specific notice of an impending local-option election since a local-option election is a legislative action by the electorate of the district involved.

4. R.C. 4301.32 through 4301.41 and R.C. 3501.38, to the extent that they provide for termination of business under an existing liquor permit as a result of a local-option election, violate neither the Due Process nor Equal Protection Clauses of the United States and Ohio Constitutions, even though there is no provision for specific notice to the potentially affected permit holder prior to the holding of the local-option election.

David W. Cox, Xenia, for appellants Robert W. and Madonna J. Rickard.

David L. Phipps, Xenia, for appellant Fraternal Order of Eagles 1689.

Paul W. Barrett, Xenia, for appellants Dennis McGlathen et al.

Anthony J. Celebrezze, Jr., Atty. Gen., James M. Guthrie and Nathan Gordon, Columbus, for appellee Dept. of Liquor Control et al.

WHITESIDE, Judge:

Plaintiffs, Robert W. and Madonna J. Rickard et al., appeal from a judgment of the Franklin County Court of Common Pleas dismissing this action for declaratory judgment against defendants, Ohio Department of Liquor Control et al., and raise two assignments of error in support of their appeal as follows:

"1. The Franklin County Court of Common Pleas erred in finding that the Court of Claims was the only proper forum to hear a declaratory judgment action requesting a state statute to be found unconstitutional.

"2. The court below erred in not finding that appellants had no notice of the effects of the local option election and therefore Ohio Revised Code Sections 4301.32 through 4301.41 and 3501.38 were unconstitutional as applied to these appellants."

This cause was originally filed in the Greene County Court of Common Pleas, which granted a judgment favorable to plaintiffs. However, upon appeal, that judgment was reversed upon jurisdictional grounds for the reason that R.C. 4301.31 requires that the action be brought in the Franklin County Court of Common Pleas, the opinion of the Second District Court of Appeals being reported as Rickard v. Ohio Dept. of Liquor Control (1985), 23 Ohio App.3d 101, 491 N.E.2d 388. Upon remand, the Greene County Court of Common Pleas transferred the action to the Franklin County Court of Common Pleas, resulting in the judgment from which this appeal is taken.

Plaintiffs are the holders of liquor permits, which previously permitted them to sell intoxicating liquor in precinct CFA of the city of Xenia. As a result of a local-option election held on November 8, 1983, precinct CFA and the adjoining precinct of CLB were voted "dry," the effect of which is to prohibit the sale of intoxicating liquor in precinct CFA and to require plaintiffs as permit holders to cease to sell intoxicating liquor in said precinct and to place their liquor permits in safekeeping with the defendant Department of Liquor Control until transferred to another location. See R.C. 4301.39 and 4301.391.

By this action, plaintiffs seek a declaratory judgment finding R.C. 4301.32 through 4301.41 and R.C. 3501.38 to be unconstitutional ¹ as they affect plaintiffs and an ancillary injunction enjoining defendant Department of Liquor Control from taking any adverse action against plaintiffs as a result of the local-option election. However, plaintiffs do not directly challenge the petition and election procedures, making no contention that the local-option election was not conducted in accordance with statute but, instead, contend that the local-option statutes are in conflict with the Due Process Clauses of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution in that plaintiffs were not afforded notice of the local-option election or its potential effect upon them.

The first assignment of error pertains to a jurisdictional issue, the Franklin County Court of Common Pleas having held that the action could be brought only in the Court of Claims. This was erroneous for two reasons: (1) an action for declaratory judgment may be maintained in the court of common pleas against a state agency; and (2) R.C. 4301.31 specifically requires that an action such as herein involved be brought in the Franklin County Court of Common Pleas.

The trial court predicated its determination that this action could be brought only in the Court of Claims upon Friedman v. Johnson (1985), 18 Ohio St.3d 85, 480 N.E.2d 82. However, in Friedman, the Supreme Court specifically held that a declaratory judgment action could be maintained in the court of common pleas against a state agency, stating in part at 87, 480 N.E.2d 82:

" * * * The state had consented to declaratory judgment suits prior to 1975. See, e.g., Burger Brewing Co., supra [ (1973), 34 Ohio St.2d 93 [296 N.E.2d 261]]; American Life & Accident Ins. Co. v. Jones (1949), 152 Ohio St. 287 [89 N.E.2d 301]. * * * "

The holding of American Life & Accident Ins. Co. is of particular significance since the fourth paragraph of the syllabus thereof specifically holds that:

"An action against the administrator of a state bureau for a declaratory judgment pronouncing the rights, status or other legal relations of the plaintiff with reference to a statute is not an action against the state, even though other incidental relief is granted."

In Burger Brewing Co. v. Liquor Control Comm. (1973), 34 Ohio St.2d 93, 296 N.E.2d 261 [63 O.O.2d 149], the Supreme Court specifically held that an action for declaratory judgment could be maintained in the Franklin County Court of Common Pleas against the Liquor Control Commission with respect to construction of a rule or regulation. Consistent with Friedman, supra, this court in A.F.S.C.M.E. v. Blue Cross (1979), 64 Ohio App.2d 262, 414 N.E.2d 435 [18 O.O.3d 227], and Plastic Surgery Associates, Inc. v. Ratchford (1982), 7 Ohio App.3d 118, 454 N.E.2d 567, held that the Court of Claims has jurisdiction to render a declaratory judgment in a case where the state itself is a party-defendant. Thus, in A.F.S.C.M.E., supra, we stated 64 Ohio App.2d at 265, 414 N.E.2d 435 with respect to the "consent" of the state to the maintaining of a declaratory action against state officers and agencies in common pleas court:

" * * * The fact that the state consented to permit its officers and employees to be sued in the Court of Common Pleas in those cases does not mean the state consented to itself be sued in those cases. * * * "

In Plastic Surgery Associates, Inc., supra, this court stated 7 Ohio App.3d at 121, 454 N.E.2d 567:

"In American Life & Accident Ins. Co. v. Jones * * *, the Supreme Court expressly held that a declaratory judgment action cannot be brought against the state itself but can be brought against a state officer or agency because such an action is not one against the state itself. * * *

"Prior to the consent of the state itself to be sued, it was generally recognized that state officers and agencies were subject to actions in injunction, mandatory injunction, mandamus and declaratory judgment so long as direct relief was not sought against the state but, instead, the remedy sought was to compel the officer or agency to perform a duty enjoined by law. Thus, declaratory judgment actions could be brought against state agencies, but the state itself could not be a party to such action * * *."

Earlier in State, ex rel. Ferguson, v. Shoemaker (1975), 45 Ohio App.2d 83, 341 N.E.2d 311 [74 O.O.2d 109], this court discussed the effect of the Court of Claims Act, R.C. 2743.02 et seq., upon the right of a party to bring an action against a state agency to compel it to perform a public duty or to enjoin it from performing an act contrary to law and concluded that such a remedy continues to exist despite the creation of the Court of Claims and the conferring of jurisdiction upon it over suits against the state, citing American Life & Accident Ins. Co., supra; State, ex rel. Nichols, v. Gregory (1935), 130 Ohio St. 165, 198 N.E. 182 [4 O.O. 59]; and State, ex rel. Ross, v. Donahey (1916), 93 Ohio St. 414, and stating in part 45 Ohio App.2d at 88, 341 N.E.2d 311:

"However, an action against a public officer to compel him to perform a public duty or to enjoin him from performing an act contrary to law is not an action against the state precluded by the doctrine of sovereign immunity. * * * "

R.C. 2743.02(A)(1) provides that:

"The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties * * *. To the extent that the state has previously consented to be sued, this chapter has no applicability. * * * "

However, R.C. 2743.02(E) expressly provides that: "The only defendant in original actions in the court of claims is the state. * * * " Thus, an action against a public officer or agency to compel it to perform a public duty or to enjoin it from...