State ex rel. Eudela v. Rogers, 83-269

• Decision Date: 15 February 1984
• Docket Number: No. 83-269,83-269
• Citation: 9 Ohio St.3d 159,459 N.E.2d 539
• Parties: , 9 O.B.R. 448 STATE, ex rel. EUDELA, Appellee, v. ROGERS et al., Appellants.
• Court: Ohio Supreme Court

Page 159

9 Ohio St.3d 159

459 N.E.2d 539, 9 O.B.R. 448

STATE, ex rel. EUDELA, Appellee, v. ROGERS et al., Appellants.

No. 83-269.

Supreme Court of Ohio.

Feb. 15, 1984.

Connelly, Soutar & Jackson, William M. Connelly and Steven R. Smith, Toledo, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., and David J. Kovach, Cleveland, for appellants.

PER CURIAM.

It is axiomatic that a writ of mandamus may issue only where the relator shows (1) a clear legal right to the relief prayed for, (2) a clear legal duty upon respondent to perform the act requested, and (3) that relator has no plain and adequate remedy in the ordinary course of law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 29, 451 N.E.2d 225.

The threshold question confronting the court today is whether the court of appeals properly issued the writ of mandamus in light of the existence of an available remedy by way of a declaratory judgment proceeding pursuant to R.C. Chapter 2721. R.C. 2721.03 states in part:

"Any person interested under a * * * rule as defined in section 119.01 of the Revised Code * * * may have determined any question of construction or validity arising under such * * * rule * * * and obtain a declaration of rights, status or other legal relations thereunder."

Without question R.C. 2721.03 would allow appellee to seek a declaratory judgment to construe the parameters of the phrase "informal meeting" as it is used in Ohio Adm.Code 5119-7-11(F)(5). Appellee is clearly a person interested under the rule, since the rule directly impacts on the revocation of appellee's appointment. Further, appellee's mandamus complaint simply seeks to construe "informal meeting" to require that appellee be specifically informed of the charges against him in order to defend against the termination of his employment. Since the rule itself does not grant appellee that right, the right sought by appellee must necessarily be derived from an interpretation or construction of the rule. Under those circumstances, a declaratory judgment proceeding would have afforded appellee an opportunity to seek his desired construction of the rule and have his rights declared thereunder. Appellee thus had a "plain and adequate remedy in the ordinary course of law" by way of a declaratory judgment action. As such, the court of appeals erred in issuing the writ of mandamus. See, e.g., State ex rel. Square v. Planning Comm. (1980), 64 Ohio St.2d 128, 413 N.E.2d 825 ; State ex rel. McGarvey v. Zeigler (1980), 62 Ohio St.2d 320, 405 N.E.2d 722 ; and State ex rel. Buian v. Kadlec (1978), 56 Ohio St.2d 116, 383 N.E.2d 119 . ¹ Furthermore, as we stated in State ex rel. McGarvey v. Zeigler, supra, 62 Ohio St.2d at 321, 405 N.E.2d 722:

" * * * [T]he right to the relief sought by the relator in mandamus must be clear and the burden of establishing such right is upon the relator."

Inasmuch as the right sought by appellee does not appear on the face of the rule, it cannot be said that appellee's right to a detailed notice of the charge is clear. Because there was no "clear legal right to the relief prayed for," mandamus was improper for this reason also. See State ex rel. Butler v. Demis (1981), 66 Ohio St.2d 123, 420 N.E.2d 116 . Cf. State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 399 N.E.2d 66 .

Since the prerequisites for mandamus were not satisfied, the court of appeals erred in allowing the writ of mandamus to issue. Accordingly, the judgment of the court of appeals is reversed and the writ is denied.

Judgment reversed.

FRANK D. CELEBREZZE, C.J., and FORD, LOCHER, HOLMES and JAMES P. CELEBREZZE, JJ., concur.

WILLIAM B. BROWN and CLIFFORD F. BROWN, JJ., dissent.

FORD, J., of the Eleventh Appellate District, sitting for SWEENEY, J.

CLIFFORD F. BROWN, Justice, dissenting.

The decision of the court is based on what the majority perceives to be appellee's remedy at law, declaratory judgment, which they find precludes the writ sought by appellee. For the following reasons I dissent.

The seminal case regarding mandamus and the existence of a declaratory judgment as an adequate remedy is State ex rel. Dollison v. Reddy (1978), 55 Ohio St.2d 59, 378 N.E.2d 150 , wherein it was stated at page 60, 378 N.E.2d 150:

"Mandamus is available to the relator in the present cause, even though he might have sought a declaratory judgment. The availability of a declaratory judgment action does not bar the issuance of a writ of mandamus when the relator otherwise makes a proper showing, although the court may consider the availability of declaratory judgment as one element in exercising its discretion whether the writ should issue."

See, also, State ex rel. Bennett v. Lime (1978), 55 Ohio St.2d 62, 63, 378 N.E.2d 152 .

Accordingly, even though an adequate remedy might exist by virtue of a declaratory judgment action, where the court of appeals in the exercise of its discretion allows the writ, this court has been reluctant to interfere. See State ex rel. Wesselman v. Bd. of Elections (1959), 170 Ohio St. 30, 162 N.E.2d 118 . Accord State ex rel. Killeen Realty Co. v. East Cleveland (1959), 169 Ohio St. 375, 160 N.E.2d 1 . In the instant cause, the court of appeals examined appellee's alternative remedies and, in its discretion, concluded that they were inadequate. This decision should be affirmed. State ex rel. Selected Properties, Inc. v. Gottfried (1955), 163 Ohio St. 469, 478, 127 N.E.2d 371 ; State ex rel. Wesselman, supra, 170 Ohio St. at 33, 162 N.E.2d 118.

Finding that a writ of mandamus is the proper remedy, the focus must shift to whether appellee has a clear legal right, and whether appellants are under a clear legal duty to provide appellee with the specifics of the third-party harassment allegations so as to enable him to discuss meaningfully with his appointing authority why he believes his unclassified appointment should not be revoked.

Ohio Adm.Code 5119-7-11(F)(5) provides, in pertinent part:

" * * * If a request for an informal meeting is received, the appointing authority shall set a date for the meeting. At the informal meeting the employee shall have an opportunity to discuss with the appointing authority the reasons why he believes his unclassified appointment should not be revoked. Although this meeting is considered to be an informal discussion, the employee may be accompanied by an attorney or another representative of his choice." (Emphasis added.)

Appellee is not seeking to transform the informal meeting provided for in the rule into a "hearing" since no right to confrontation or cross-examination has been asserted. The thrust of the...