Schwarz v. Board of Trustees of Ohio State Univ.

• Court: Ohio Supreme Court
• Writing for the Court: SWEENEY; MOYER; REILLY, J., of the Tenth Appellate District, sitting for HERBERT R. BROWN; HOLMES
• Citation: Schwarz v. Board of Trustees of Ohio State Univ., 510 N.E.2d 808, 31 Ohio St.3d 267, 31 OBR 493 (Ohio 1987)
• Decision Date: 22 July 1987
• Docket Number: No. 86-634,86-634
• Parties: , 40 Ed. Law Rep. 974, 31 O.B.R. 493 SCHWARZ, Appellee, v. BOARD OF TRUSTEES of the OHIO STATE UNIV. et al., Appellants.

Page 267

31 Ohio St.3d 267

510 N.E.2d 808, 40 Ed. Law Rep. 974, 31 O.B.R. 493

SCHWARZ, Appellee, v. BOARD OF TRUSTEES of the OHIO STATE UNIV. et al., Appellants.

No. 86-634.

Supreme Court of Ohio.

July 22, 1987.

Syllabus by the Court

1. Pursuant to R.C. 3335.03 and 2743.02(A)(1), an action in contract may be brought against the Board of Trustees of the Ohio State University in the court of common pleas.

2. The courts of common pleas possess jurisdiction to entertain federal claims seeking prospective injunctive relief brought under Section 1983, Title 42, U.S. Code, against individual state officers in their official capacities, in order to redress alleged deprivations of rights, privileges or immunities guaranteed by the United States Constitution.

Plaintiff-appellee, Shirley J. Schwarz, was employed as an Assistant Professor in the Department of History of Art of the Ohio State University ("OSU" or "university") between the years 1976 and 1983. Prior to this period of time, the record indicates that plaintiff taught art history as an Instructor and Assistant Professor at George Mason University for approximately three years.

On or about June 13, 1982, plaintiff was notified by OSU that she was being denied tenure and that her employment with the university would be terminated at the end of her 1982-1983 employment contract.

Subsequently, plaintiff brought this action against the following defendants in the court of common pleas: the OSU Board of Trustees in its official capacity; the individual members of the OSU Board of Trustees in their official capacities; the President of OSU in his official capacity; the Vice-President for Academic Affairs and Provost of OSU in his official capacity; the Dean of the College of the Arts in his official capacity; Professor Howard Crane, Chairman of the Department of History of Art, in his official and personal capacities; and Professor Franklin M. Ludden of the Department of History of Art, in his official and personal capacities. Plaintiff contended, inter alia, that prior to accepting employment with OSU, she was promised that her years of service at George Mason University would be taken into consideration in reducing the seven-year probationary period that precedes the award or denial of tenure. The university contended that such prior experience did not count in the calculation of the number of years required for tenure.

Within her complaint, plaintiff set forth five separate causes of action. In count one, plaintiff alleged that defendants, in their official capacities, denied her due process of law. In count two, plaintiff alleged that defendants, acting under color of state law, denied her due process of law in violation of Section 1983, Title 42, U.S.Code. In count three, plaintiff alleged that defendants, acting in their official capacities, breached her employment contract with the university. In count four, plaintiff alleged that defendant Crane, in his individual capacity, tortiously interfered with her contract rights. Lastly, in count five, plaintiff alleged essentially that defendant Ludden, in his individual capacity, perpetrated a fraud against her. In her prayer for relief, plaintiff sought declaratory and injunctive relief, specific performance, and compensatory and punitive damages. Thereafter, answers were filed on behalf of Crane and Ludden, and a motion to dismiss pursuant to Civ.R. 12(B)(1) and (6) was filed on behalf of all other defendants.

Upon due consideration, the trial court dismissed counts one, two and three of plaintiff's complaint on the grounds that such claims are essentially against the state of Ohio and should have been brought before the Ohio Court of Claims pursuant to R.C. Chapter 2743. ¹ As a result, the court opined that it lacked subject matter jurisdiction over the claims made in the first three counts of the complaint.

Upon appeal, the court of appeals reversed and remanded. The appellate court found that with respect to the third count of plaintiff's complaint against the OSU Board of Trustees, there are three instances where the Court of Claims Act (R.C. Chapter 2743) does not apply. Of particular importance to this appeal, the court noted that R.C. 2743.02(A)(1) ² exempts application of the Court of Claims Act where, by statute, the state has previously consented to suit. The court of appeals found that R.C. 3335.03, which was enacted prior to the adoption of the Court of Claims Act, qualifies as a consent-to-suit statute. While noting that this court's prior decisions in Wolf v. Ohio State Univ. Hosp. (1959), 170 Ohio St. 49, 9 O.O.2d 416, 162 N.E.2d 475, and Thacker v. Bd. of Trustees of Ohio State Univ. (1973), 35 Ohio St.2d 49, 64 O.O.2d 28, 298 N.E.2d 542, prohibit the maintenance of tort actions against the OSU Board of Trustees, ³ the appellate court held that R.C. 3335.03 permits the maintenance of breach of contract actions against that entity in the court of common pleas, since R.C. 3335.03 predates the Court of Claims Act and evidences a prior consent to suit.

The court of appeals further held that the second count alleged in plaintiff's complaint grounded in Section 1983, Title 42, U.S.Code, "was brought against individuals * * * [and that] the court of common pleas had jurisdiction to hear it * * *."

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

Baker, Baker & Sweterlitsch, Douglas A. Baker, Spater, Gittes & Terzian and Frederick M. Gittes, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., Gary E. Brown, Vorys, Sater, Seymour & Pease and G. Ross Bridgman, for appellants.

SWEENEY, Justice.

In the cause sub judice, two issues are posed for our consideration: (1) whether R.C. 3335.03 permits the maintenance of a breach of contract action against the OSU Board of Trustees in the court of common pleas within the ambit of R.C. 2743.02(A)(1); and (2) whether the court of common pleas has jurisdiction to consider plaintiff's claim grounded in Section 1983, Title 42, U.S.Code. For the reasons that follow, we answer both questions in the affirmative.

I

R.C. 3335.03 provides:

"The trustees and their successors in office shall be styled the 'board of trustees of the Ohio state university,' with the right as such, of suing and being sued, of contracting and being contracted with, of making and using a common seal, and altering it at pleasure."

In Wolf, supra, this court held in paragraph five of the syllabus:

"Under the provisions of Section 3335.03, Revised Code, the General Assembly of Ohio has not authorized tort actions to be brought against the Board of Trustees of The Ohio State University." See, also, Thacker v. Bd. of Trustees, supra. ⁴

The law set forth in Wolf was premised largely upon this court's prior pronouncement in Overholser v. National Home for Disabled Volunteer Soldiers (1903), 68 Ohio St. 236, 67 N.E. 487, where it was held in the second paragraph of the syllabus:

"The grant of power to sue and be sued at law and in equity applies to such matters only as are within the scope of the other corporate powers of the defendant, and it does not authorize such corporation to be sued in tort."

With respect to the first issue presented, defendant-appellant OSU Board of Trustees argues that the Ohio Court of Claims is the proper forum for plaintiff's complaint. Defendant contends that under both Wolf and Thacker, it is clear that tort actions may not be brought against the OSU Board of Trustees, and that breach of contract actions should be treated no differently since those cases did not create a distinction between tort and contract claims. Defendant submits that prior to the enactment of the Court of Claims Act, R.C. 3335.03 did permit actions in the court of common pleas against the OSU Board of Trustees, but that these were limited to contract actions in mandamus and other special equitable remedies.

Plaintiff-appellee asserts that R.C. 3335.03 permits the bringing of a breach of contract action against the OSU Board of Trustees, and is the type of statute referred to in R.C. 2743.02(A)(1) whereby the state has previously consented to suit. Plaintiff contends that based on the rationale enunciated in Overholser, supra, Wolf, supra, and Thacker, supra, the court of appeals below correctly concluded that R.C. 3335.03 confers common pleas court jurisdiction over her breach of contract action against the OSU Board of Trustees, because that statute expressly makes the right "of contracting and being contracted with" one of the other corporate powers of that entity. Plaintiff submits that if "suing and being sued" in R.C. 3335.03 does not refer to tort suits, because torts are not included in the board of trustees' " 'other corporate powers,' " as found in Wolf, then, necessarily "suing and being sued" does plainly refer to contract suits because contracts are so included in the board of trustees' express corporate powers.

Based on the precedents heretofore discussed, we find that while R.C. 3335.03 does not set forth a prior consent to suit with regard to tort actions, the same cannot be said with respect to actions asserting a breach of contract. Contrary to the arguments raised by defendant, we find that both Wolf and Thacker confined their breadth and discussion to tort causes of action. Pursuant to R.C. Chapter 2743, any tort cause of action now brought against the entity known as the OSU Board of Trustees must be adjudicated in the Court of Claims. Nevertheless, when an action is brought against the board of trustees alleging breach of contract, we believe that the court of common pleas is the proper forum to adjudicate that claim based upon the language of R.C. 3335.03, as well as the prior case law developed in Wolf and Thacker. To hold otherwise, or to adopt the restrictive interpretation urged by defendant would, as plaintiff asserts, effectively render the "suing and being sued" language of R.C. 3335.03 meaningless...