State ex rel. Ervin v. Gilligan

CourtUnited States Court of Appeals (Ohio)
Citation300 N.E.2d 225,35 Ohio App.2d 84
Parties, 21 Wage & Hour Cas. (BNA) 277, 64 O.O.2d 204 The STATE of Ohio, ex rel. ERVIN, et al., v. GILLIGAN et al.
Decision Date29 May 1973

Syllabus by the Court

1. In the absence of express direction that an act of Congress applies to control the relationship between a state and its employees, there is a presumption that Congress intended the act not to do so.

2. Since the Economic Stabilization Act of 1970 does not specifically provide that it applies to employees of state government, it does not prohibit a state from implementing legislation granting pay raises to state employees.

3. A petition for the removal of an action from a state court to a federal court, filed after the expiration of the time provided for filing such a petition and after the evidence has been submitted to the state court and the action submitted to that court for determination upon the merits, is a nullity and does not divest the state court of jurisdiction to proceed to a determination of the action.

Leonard S. Sigall, for relators.

William J. Brown, Atty. Gen., C. Raymond Marvin, Administrative Agencies, Chief, Antitrust Section, and Robert B. Meany, Columbus, for respondents.

Stephen R. Pickard, U. S. Dept. of Justice, for intervenor-respondent United States of America.

STRAUSBAUGH, Judge.

This matter is before us upon relators' complaint, filed February 10, 1972, and set down for oral hearing May 16, 1972, for the issuance of a peremptory and a final writ of mandamus. At the oral hearing the cause was continued for one month, until June 16, 1972, for the filing of stipulations of facts and the briefs. Thereafter, by reason of inaction of the parties, this court gave notice that unless dispositive action be taken before March 30, 1973, under our court Rule 11, section 14, the cause would be dismissed by want of prosecution. Thereafter, at the request of the parties, a conference was held between the parties and the court wherein it was agreed that the parties would submit briefs, and that a reply brief would be submitted five days thereafter. At that time, on April 6, 1973, all evidence being stipulated, this court requested that the parties direct their attention specifically to the following two questions: (1) What provision of the Economic Stabilization Act of 1970 makes the act applicable to salaries paid by a sovereign state to officers and employees of state government established by legislative act? (2) What provisions of executive order 11695 accomplishes that purpose?

Ancillary to those questions, assuming an affirmative answer, we asked that two other questions be briefed: (1) Does the Tenth Amendment to the United States Constitution preclude the federal government from regulating the salaries of officers and employees of state government? and (2) Is there any improper delegation of authority in executive order 11695? Instead of filing a brief as requested, the attorney for the United States of America, on April 19, 1973, filed, in this court, a copy of a petition filed with the United States District Court for the Southern District of Ohio, Eastern Division, for the removal of this case to that court.

The Economic Stabilization Act of 1970, 12 U.S.C. 1904, supplement I, provides, in paragraphs 211, Judicial review:

'(a) The district courts of the United States shall have exclusive original jurisdiction of all cases or controversies arising under this title, or under regulations or orders issued thereunder, notwithstanding the amount in controversy; except that nothing in this subsection or in subsection (h) of this section affects the power of any court of competent jurisdiction to consider, hear, and determine any issue by way of defense (other than a defense based on the constitutionality of this title or the validity of action taken by any agency under this title) raised in any proceeding before such court. If in any such proceeding an issue by way of defense is raised based on the constitutionality of this title or the validity of agency action under this title, the case shall be subject to removal by either party to a district court of the United States in accordance with the applicable provisions of Chapter 89 of Title 28, United States Code.'

Chapter 89 of Title 28, United States Code, provides:

§ 1446. Procedure for removal. (a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.

'(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

'If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

'(c) The petition for removal of a criminal prosection may be filed at any time before trial.'

Under the above procedure for removal, the petition filed by the attorney for the United States on April 19, 1973, was a nullity for failure to be timely filed, the case previously having been submitted to this court for a determination of the merits upon the stipulated facts. A petition for removal cannot be made between the time of trial and decision.

Although not controlling, a review of the legislative history of P.L. 92-210, as contained in 2 U.S.Cong. & Admin.News, p. 2292 (1971) is helpful. Under 'Judicial Review,' at page 2292, we note the following:

'The judicial review provision has been written with several important principles in mind: (1) speed and consistency of decisions in cases arising under the Act, (2) avoidance of any brakes or stays in the operation of the Stabilization Program, and (3) relief for particular persons aggrieved by the operation of the program.

'Exclusive original jurisdiction over cases and controversies arising under the Act or under regulations or orders issued under the Act shall be in the Federal district courts. These cases may be brought regardless of the amount in controversy. It is made explicit, however, that with respect to any case or controversy brought in a court of competent jurisdiction, e. g., a State court, nothing shall prevent a defendant from raising a defense (other than a defense involving constitutionality of the Act or the validity of a regulation or order issued under the Act). If the defense is simply one concerning the applicability of a regulation to a party such case would stay in the State court, the issue of the applicability could be decided in that court, and appeals would proceed through the procedure established for that court. If either of the two issues mentioned above, constitutionality of the Act or validity of a regulation or order issued under the Act, are raised, no court, other than a Federal district court, has jurisdiction to act upon a case involving these issues. Such case should be subject to a motion to dismiss or similar motion. If it is so dismissed, either party to the action may move to remove the case to Federal district court for further action. This removal would be pursuant to the existing removal statutes in Chapter 89 of Title 28 of the United States Code.'

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2 cases
  • United States v. State of Ohio
    • United States
    • U.S. Temporary Emergency Court of Appeals Court of Appeals
    • October 25, 1973
    ...et al., alone raise the issue that the judgment of the Franklin County, Ohio, Court of Appeals in State of Ohio ex rel. Ervin v. Gilligan, 35 Ohio App.2d 84, 300 N.E.2d 225 (1973), holds that Congress did not intend the Act to be applicable to the State employees, barring the Government fro......
  • Robert (bob) Ramsey v. A.I.U. Ins. Co.
    • United States
    • Ohio Court of Appeals
    • June 18, 1985
    ... ... the case remanded back to the state court denying the ... petition for removal because of the untimely ... State, ex rel. Ervin, v. Gilligan (1973), ... 35 Ohio App. 2d 84. Other ... ...

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