State ex rel. Feltner v. Cuyahoga Cnty. Bd. of Revision

• Decision Date: 28 May 2020
• Docket Number: No. 2018-1307,2018-1307
• Parties: The STATE EX REL. FELTNER v. CUYAHOGA COUNTY BOARD OF REVISION et al.
• Court: Ohio Supreme Court

160 Ohio St.3d 359

157 N.E.3d 689

2020 Ohio 3080

The STATE EX REL. FELTNER

v.CUYAHOGA COUNTY BOARD OF REVISION et al.

No. 2018-1307

Supreme Court of Ohio.

Submitted November 13, 2019

Decided May 28, 2020

The Dann Law Firm Co., L.P.A., Marc E. Dann, Whitney Kaster, Cleveland, and Brian D. Flick ; and Andrew M. Engel Co., L.P.A., and Andrew M. Engel, for relator.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Charles E. Hannan and Adam Jutte, Assistant Prosecuting Attorneys, for respondents.

Dave Yost, Attorney General, Benjamin M. Flowers, State Solicitor, and Michael J. Hendershot, Chief Deputy Solicitor, urging denial of the writ for amicus curiae Ohio Attorney General.

Roetzel & Andress, L.P.A., and Stephen W. Funk, Akron, urging denial of the writ for amici curiae Cuyahoga County Land Reutilization Corporation and Ohio Land Bank Association.

Julia R. Bates, Lucas County Prosecuting Attorney, and Suzanne Cotner Mandros, Assistant Prosecuting Attorney, urging denial of the writ for amicus curiae Ohio Prosecuting Attorneys Association.

Herman Law, L.L.C., and Edward F. Herman, Cleveland, urging denial of the writ for amicus curiae County Treasurers Association of Ohio.

Frances Shaiman Lesser; and Pappas & Associates and Thomas P. Pappas, urging denial of the writ for amicus curiae County Auditors' Association of Ohio.

French, J. {¶ 1} R.C. 323.66(A) authorizes boards of revision to adjudicate foreclosures involving certain tax-delinquent abandoned land. In this original action, an owner whose property was the subject of a board-of-revision foreclosure seeks a writ of prohibition to invalidate the foreclosure adjudication. The owner contends that the board of revision lacked authority to foreclose on his property because the statutes under which the board proceeded are unconstitutional. We deny the writ because the board of revision did not patently and unambiguously lack jurisdiction when it proceeded in the foreclosure action at issue.

Background

{¶ 2} In 2006, the General Assembly passed legislation authorizing boards of revision to adjudicate tax-foreclosure actions involving abandoned land. See 2006 Sub.H.B. No. 294, 151 Ohio Laws, Part IV, 7334. These proceedings are designed to be an expeditious alternative to conventional judicial foreclosures. See R.C. 323.67(B)(1) and (C). Among other things, the law allows a board of revision, under certain circumstances, to order the sheriff to transfer property directly to a county land-reutilization corporation (or some other statutorily eligible political subdivision), without the need for an appraisal and public auction. R.C. 323.65(J), 323.71(A)(1), 323.73(G), and 323.78.

{¶ 3} In June 2017, respondent Cuyahoga County Board of Revision ("BOR") entered a judgment of foreclosure concerning real property owned by relator, Elliott G. Feltner. After its judgment, the BOR transferred Feltner's property to the Cuyahoga County Land Reutilization Corporation ("the Land Bank") under R.C. 323.78. The Land Bank later transferred the property to a third party.

{¶ 4} More than a year later, Feltner filed this original action, asserting multiple prohibition and mandamus claims against the BOR, its members,¹ the Cuyahoga County treasurer, Cuyahoga County, the Land Bank, and the Attorney General. We previously dismissed the Cuyahoga County treasurer, Cuyahoga County, the Land Bank, and the Attorney General as parties. 155 Ohio St.3d 1403, 2019-Ohio-943, 119 N.E.3d 431. But we granted an alternative writ of prohibition as to two of the claims against the BOR and its members. Id. Those claims present the question whether the statutes under which the BOR proceeded violate the separation-of-powers doctrine or the due-process clauses of the United States and Ohio Constitutions.

{¶ 5} The case is now ripe for our final determination.

Analysis

{¶ 6} To be entitled to a writ of prohibition, a relator ordinarily must prove that a lower tribunal is about to exercise judicial or quasi-judicial power without authority and that there is no adequate remedy in the ordinary course of the law. State ex rel. Sliwinski v. Burnham Unruh , 118 Ohio St.3d 76, 2008-Ohio-1734, 886 N.E.2d 201, ¶ 7. This standard reflects the well-established rule that prohibition "is a preventive rather than a corrective remedy, and issues only to prevent the commission of a future act, and not to undo an act already performed." High, Treatise on Extraordinary Legal Remedies , Embracing Mandamus, Quo Warranto and Prohibition, Section 766, at 606 (2d Ed.1884).

{¶ 7} The BOR is not about to exercise power concerning the property Feltner once owned—Feltner commenced this prohibition action more than a year after the BOR entered its final judgment. The BOR and its members contend that this fact alone precludes us from granting the writ in this case.

{¶ 8} But in State ex rel. Adams v. Gusweiler , 30 Ohio St.2d 326, 285 N.E.2d 22 (1972), paragraph two of the syllabus, we recognized an exception to the general rule, holding that a writ of prohibition may issue correctively to arrest the continuing effects of an order when there was "a total want of jurisdiction" on the part of the lower tribunal. A few years after Gusweiler , we began to associate the exception with the modifying phrase "patent and unambiguous." See State ex rel. Gilla v. Fellerhoff , 44 Ohio St.2d 86, 87-88, 338 N.E.2d 522 (1975). We also began using that term with respect to a related exception adopted in Gusweiler at 329, 285 N.E.2d 22 —namely, that the availability of an adequate remedy is immaterial when a tribunal patently and unambiguously lacks jurisdiction. See, e.g. , State ex rel. Koren v. Grogan , 68 Ohio St.3d 590, 595, 629 N.E.2d 446 (1994). Over time, we have issued writs of prohibition to correct the results of unauthorized exercises of authority, notwithstanding the availability of an appeal, if the tribunal patently and unambiguously lacked jurisdiction to enter the judgment at issue. See, e.g. , State ex rel. V.K.B. v. Smith , 142 Ohio St.3d 469, 2015-Ohio-2004, 32 N.E.3d 452, ¶ 8. And so, the narrow issue before us is whether the BOR patently and unambiguously lacked jurisdiction to adjudicate the foreclosure of Feltner's property.

{¶ 9} We typically will not hold that a tribunal patently and unambiguously lacked jurisdiction if the tribunal "had at least basic statutory jurisdiction to proceed." Gusweiler at 329, 285 N.E.2d 22. Therefore, in prohibition cases involving statutorily created tribunals of limited jurisdiction, we ordinarily ask whether the General Assembly gave the tribunal authority to proceed in the matter at issue. See, e.g. , State ex rel. Goldberg v. Mahoning Cty. Probate Court , 93 Ohio St.3d 160, 162, 753 N.E.2d 192 (2001) ; State ex rel. Natalina Food Co. v. Ohio Civ. Rights Comm. , 55 Ohio St.3d 98, 100, 562 N.E.2d 1383 (1990).

{¶ 10} Here, the legislature clearly gave the BOR statutory authority to proceed. See R.C. 323.25 and 323.65 through 323.79. But this case presents a more complicated issue because Feltner contends that the BOR's statutory authority is unconstitutional. The question, then, is the extent to which we may consider the merit of Feltner's constitutional challenge in deciding whether the BOR patently and unambiguously lacked jurisdiction.

{¶ 11} To date, we have not squarely explained what constitutes a patent and unambiguous lack of jurisdiction when a relator seeks to undo a final judgment by challenging the constitutionality of a lower tribunal's statutory authority. But our case law includes numerous examples in which we held that a tribunal did not patently and unambiguously lack jurisdiction under the specific law or facts at the time of the challenged proceedings. Most notably, in Sliwinski , 118 Ohio St.3d 76, 2008-Ohio-1734, 886 N.E.2d 201, at ¶ 21, we declined to resolve a constitutional challenge to legislation in view of the rule that a statute is presumed to be constitutional. In other cases, we indicated that a tribunal cannot patently and unambiguously lack jurisdiction if the absence of jurisdiction is not clear under then -existing law. See State ex rel. Worrell v. Athens Cty. Court of Common Pleas , 69 Ohio St.3d 491, 496, 633 N.E.2d 1130 (1994) (common pleas court's lack of jurisdiction was not patent and unambiguous prior to enactment of new statute conferring exclusive jurisdiction on the Court of Claims); Natalina Food Co. , 55 Ohio St.3d at 100, 562 N.E.2d 1383 (relator could not demonstrate tribunal's patent and unambiguous lack of jurisdiction in the absence of any statutory or constitutional authority that "definitively" prevented its exercise of jurisdiction); State ex rel. Henry v. Britt , 67 Ohio St.2d 71, 75, 424 N.E.2d 297 (1981) (court's lack of jurisdiction was not patent and unambiguous when the underlying jurisdictional question was "not well settled"). And in State ex rel. McSalters v. Mikus , 62 Ohio St.2d 162, 163, 403 N.E.2d 1215 (1980), we declined to hold that a tribunal patently and unambiguously lacked jurisdiction because the jurisdictional question turned on the specific facts of the case. Importantly, we did not suggest in these prohibition cases that the claims presented were incapable of resolution or that they could not be resolved at the appropriate time in an appropriate forum. We simply concluded that the respondents named in each did not obviously lack jurisdiction under the law at the time.

{¶ 12} Cases in which we have found an obvious lack of jurisdiction support the idea that we must examine then-existing law (e.g., a statute, a rule, or precedent) when determining whether a tribunal patently and unambiguously lacked jurisdiction. See, e.g. , State ex rel. Sanquily v. Lucas Cty. Court of Common Pleas, 60 Ohio St.3d 78, 80, 573 N.E.2d 606 (1991) ("Although R.C. 2305.01 gives common pleas courts original jurisdiction in civil matters generally, R.C. 2743.02(F) patently and unambiguously takes it away from them in a specific class of civil cas...