State ex rel. Carver v. Hull

• Decision Date: 19 October 1994
• Docket Number: No. 93-1514,93-1514
• Citation: 70 Ohio St.3d 570,639 N.E.2d 1175
• Parties: The STATE ex rel. CARVER, Appellee and Cross-Appellant, v. HULL, Sheriff, et al., Appellants and Cross-Appellees.
• Court: Ohio Supreme Court

Page 570

70 Ohio St.3d 570

639 N.E.2d 1175

The STATE ex rel. CARVER, Appellee and Cross-Appellant, v. HULL, Sheriff, et al., Appellants and Cross-Appellees.

No. 93-1514.

Supreme Court of Ohio.

Submitted July 27, 1994.

Decided Oct. 19, 1994.

Pauline Carver, appellee and cross-appellant, sought a writ of mandamus in the Scioto County Court of Appeals to compel (1) her reinstatement as a cook/substitute matron for appellant and cross-appellee Scioto County Sheriff's Department, and (2) back pay with interest. Carver's reinstatement had previously been ordered by the State Personnel Board of Review ("SPBR") on the ground that appellant and cross-appellee Sheriff John Hull of the department had denied her right as a classified employee to reinstatement upon recall from layoff. Carver sued in mandamus when Hull did not comply with the SPBR order.

Carver worked for the sheriff's office part-time as a cook during the summers of 1983 and 1984. In January 1985, Hull hired her as a full-time cook/substitute matron, but she was laid off due to lack of funds on April 28, 1985. Carver did not appeal at that time to SPBR; however, she later asked Hull about being recalled to her job. In December 1985, Carver learned that another woman, Geneva Cantrell, had been working part-time as a cook/substitute matron for the sheriff's office. In March or April 1986, Carver discovered that Cantrell had been hired for full-time work.

Carver appealed to SPBR on April 14, 1986. Hull moved to dismiss based on untimeliness, arguing that Ohio Adm.Code 124-1-03(B) required her to appeal within ten days after notice of the layoff. SPBR granted the motion to dismiss. Carver requested reconsideration on the ground that she was contesting the loss of her recall rights, which were not violated until months after her layoff. SPBR reconsidered, stating:

"The appeal is hereby REMANDED to the Administrative Law Judge for further proceedings, to be treated as an investigation of [Carver's] recall rights." ¹

An administrative law judge ("ALJ") found that Hull violated Carver's right to recall under R.C. 124.327(B) (recall from layoff list for one year after layoff). With respect to the timeliness of her appeal, the ALJ said:

" * * * [Carver] has failed to file a timely appeal to question the validity of a lack of funds layoff which took place in April, 1985. However, for purposes of her recall rights, * * * [Carver] has filed a timely appeal pursuant to Ohio Revised Code Section 124.56 and our administrative rule, Ohio Administrative Code 124-1-03. * * * "

On October 7, 1986, SPBR adopted the ALJ's report and ordered Carver's reinstatement. SPBR also accepted the ALJ's invocation of the authority conferred by R.C. 124.56, which allows SPBR to investigate officials who may be abusing their powers of appointment, layoff, reduction, suspension or removal and to recommend such official's removal to the Governor, mayor or other chief appointing authority, or board of township trustees, as applicable. The last sentence of SPBR's order reads:

"If [Carver] is not returned to her previous employment within thirty (30) days of the issuance of this order this matter will be reported to the Governor with its recommendation that Sheriff Hull be removed for violations of Chapter 124. of the Ohio Revised Code."

Hull appealed, but the Franklin County Common Pleas Court granted SPBR's motion to dismiss. The common pleas court concluded that no mechanism existed for challenging the results of an investigation under R.C. 124.56. Its order, dated January 29, 1988, states:

" * * * This Court finds that the instant appeal is not a justiciable question before the Court. See Singh v. State (1982), 7 Ohio App.3d 269 [7 OBR 349, 455 N.E.2d 522]. For this reason this Court does not reach any of the substantive issues raised by [Hull]. This Court lacks subject matter jurisdiction and therefore, must SUSTAIN appellees' motion to dismiss."

Hull did not appeal the dismissal of his appeal, which left the SPBR order intact. However, he also did not immediately reemploy Carver, and SPBR recommended his removal to the Governor, who took no action. Carver waited until November 22, 1989 to file her complaint in mandamus. She was apparently recalled to work on January 4, 1993, during the court of appeals' review.

The court of appeals granted the writ of mandamus, including an award of back pay in the amount of $117,838.12, with interest and costs. It agreed with SPBR that Carver was entitled to recall and that Hull had a duty to comply with R.C. 124.327(B). The court rejected Hull's argument that Carver had an adequate remedy via SPBR's recommendation for his removal, holding that the sheriff's removal was not the relief Carver requested. The court also rejected the other arguments Hull now raises on appeal--that Carver lacks standing and that laches precludes a writ of mandamus.

Hull appeals as of right. Carver cross-appeals the court of appeals' denial of prejudgment interest. She also moves to strike Hull's brief and to dismiss this appeal for his failure to comply with briefing provisions of the Supreme Court Rules of Practice.

Miller, Dye, Huddleston & Knapp and C. Lawrence Huddleston, Columbus, for appellee and cross-appellant.

Lynn Alan Grimshaw, Scioto County Pros. Atty., and William K. Shaw, Jr., Asst. Pros. Atty., for appellants and cross-appellees.

PER CURIAM.

This cause presents six questions for our review. First, should the motion to strike and for dismissal be granted? Second, does Carver have standing to maintain this action? Third, does Hull owe Carver reinstatement, or did SPBR abuse its discretion in finding a violation of Carver's recall rights? Fourth, does Carver have an adequate remedy in the ordinary course of law? Fifth, should mandamus be denied due to laches? Sixth, did the court of appeals err in denying prejudgment interest?

For the reasons that follow, we overrule Carver's procedural motion and find that she has standing. With respect to the merits, we find that SPBR exceeded its authority in determining Carver's right to recall under R.C. 124.56; however, we also find that she is entitled to reinstatement due to Hull's undisputed failure to comply with R.C. 124.327. We further find that an appeal to SPBR was not available to Carver, and that the sheriff's removal is an inadequate remedy. Finally, we find that her delay did not cause prejudice, but that she is not entitled to prejudgment interest. Accordingly, we affirm.

Motion to Strike and for Dismissal

Carver urges us to strike Hull's brief and to dismiss his appeal because (1) he did not file the record required by former S.Ct.Prac.R. IV(1), (2) he did not file his merit brief within the time prescribed by former S.Ct.Prac.R. V(1), which depended on when the record was filed, or (3) he did not include in his brief an appendix containing (a) copies of all judgments, orders, and decisions rendered by the court of appeals, (b) copies of any cited administrative rules, or (c) copies of any cited constitutional provisions, as required by former S.Ct.Prac.R. V(1)(E)(d), (f), and (g).

The prosecution of this appeal suffers from all the infirmities Carver cites. However, Hull's noncompliance with our former rules is not so pervasive that we are required to dismiss, see Drake v. Bucher (1966), 5 Ohio St.2d 37, 38, 34 O.O.2d 53, 54, 213 N.E.2d 182, 183 (appeal dismissed where party "utterly fail[ed] to comply with virtually every rule of this court as to form or content" in writing brief), and we generally prefer substantive dispositions to procedural. The motion to strike and for dismissal, therefore, is overruled.

Standing

In his second proposition of law, Hull asserts Carver's lack of standing and relies, as the common pleas court did in dismissing his appeal, on Singh v. State (1982), 7 Ohio App.3d 269, 7 OBR 349, 455 N.E.2d 522. Singh held that an employee lacked standing to appeal the results of an R.C. 124.56 investigation. Id. at 270, 7 OBR at 351, 455 N.E.2d at 524.

Singh aside, Carver's standing to sue in mandamus is not determined by any purported lack of standing in the underlying SPBR appeal. That case ended without the SPBR's reinstatement order having been reversed on appeal. Thus, Carver may now sue for compliance with the order, and her personal stake in enforcement manifests "the requisite concrete adverseness" necessary for standing. Ohio Hosp. Assn. v. Community Mut. Ins. Co. (1987), 31 Ohio St.3d 215, 218, 31 OBR 411, 413, 509 N.E.2d 1263, 1266, citing Baker v. Carr (1962), 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678.

Similarly, Carver has the "beneficial interest" required by R.C. 2731.02 because she demands that Hull observe her individual right to recall under R.C. 124.327. Her interest is thus "different from and transcend[s] that of the citizenry generally," State ex rel. Harris v. Silbert (1959), 169 Ohio St. 261, 265, 8 O.O.2d 278, 280, 159 N.E.2d 439, 442, which constitutes sufficient standing to maintain an action in mandamus to compel compliance with a statute. State ex rel. Zoller v. Talbert (1980), 62 Ohio St.2d 329, 330, 16 O.O.3d 391, 405 N.E.2d 724, 725.

Duty to Reinstate and Adequate Remedy

For a writ of mandamus to issue, the court must find that Carver has a clear legal right to Hull's performance of a clear legal duty and that she had no adequate remedy in the ordinary course of law. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 631 N.E.2d 150.

In his first, third, and fourth propositions of law, Hull maintains that SPBR abused its discretion and acted beyond its authority by determining Carver's right to recall under the aegis of R.C. 124.56. Hull claims the statute provides only one form of relief--a recommendation for the removal of an official or other appointing authority. ²

SPBR abused its discretion if its order is " 'contrary to law, or * * * there is no evidence to support...