State ex rel. Fenwick v. Finkbeiner

• Decision Date: 05 July 1995
• Docket Number: No. 94-708,94-708
• Citation: 72 Ohio St.3d 457,650 N.E.2d 896
• Parties: The STATE ex rel. FENWICK, Appellee, v. FINKBEINER, Mayor, Appellant.
• Court: Ohio Supreme Court

Page 457

72 Ohio St.3d 457

650 N.E.2d 896

The STATE ex rel. FENWICK, Appellee, v. FINKBEINER, Mayor, Appellant.

No. 94-708.

Supreme Court of Ohio.

Submitted April 18, 1995.

Decided July 5, 1995.

In 1990 and 1991, purporting to act under R.C. 3709.05 ¹ and Section 102 of its charter, ² the city of Toledo enacted ordinances creating a city Department of Health and Environment, an advisory Health Commission, and a Director of Health and Environment to replace the statutory board of health otherwise required by R.C. 3709.05. Toledo Municipal Code 139.01, 139.02, and 149.01. Appellee, Joseph W. Fenwick, was appointed Director of Health and Environment on March 26, 1993. In December 1993, appellant, Carlton S. Finkbeiner, then Mayor-elect of Toledo, informed appellee either that he would dismiss him (appellee's version) or not reappoint him (appellant's version) as director. Section 69 of the Toledo Charter ³ permits the mayor to remove departmental directors at will. Subsequently, appellee sought a writ of prohibition in the court of appeals, alleging that the aforementioned provisions of the Toledo Municipal Code violate the state Constitution and laws, and that any attempt by appellant to remove him would also be unlawful.

The court of appeals found the ordinances void ab initio, that Toledo had exceeded the scope of authority granted by R.C. 3709.05, and that appellee was a member of the classified state service who could only be dismissed for cause pursuant to R.C. 124.34. It allowed a writ of prohibition. Appellant appealed as a matter of right.

Nathan & Roberts, R. Michael Frank and W. David Arnold, Toledo, for appellee.

John G. Mattimoe, Director of Law, Mark S. Schmollinger, Gen. Counsel, and Robert G. Young, Sr. Atty., for appellant.

Malcolm C. Douglas, Cleveland, urging reversal for amici curiae, Ohio Mun. League and Ohio Mun. Attys. Ass'n.

PER CURIAM.

Because we find that appellee has an adequate remedy at law we reverse the judgment of the court of appeals.

In his first proposition of law, appellant argues that the court of appeals had no authority to issue a writ of prohibition because appellee's dismissal is not a judicial or quasi-judicial act and because appellee has adequate remedies at law, although appellant does not specify the remedies that are adequate. Appellee argues that prohibition is appropriate, or alternatively, that mandamus or quo warranto is appropriate.

"The prerequisites for issuing a writ of prohibition are (1) that the respondent is about to exercise judicial or quasi-judicial authority, (2) the authority is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law." Ohio Dept. of Adm. Serv. v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48, 53, 562 N.E.2d 125, 130. The court of appeals found appellant was about to engage in quasi-judicial authority by terminating appellee. We concede, without deciding, that dismissal of an employee may be considered a quasi-judicial act under some circumstances. In State ex rel. Nolan v. Clendening (1915), 93 Ohio St. 264, 112 N.E. 1029, an early prohibition case, we allowed the writ, prohibiting a state administrative tribunal with authority to remove certain officers for specified causes from removing the relator for a different cause. However, Nolan makes it clear that the decision is predicated on the lack of an adequate remedy. 93 Ohio St. at 272, 112 N.E. at 1031. Thus, the determinative issue in this case, as in Nolan, is the availability of adequate legal remedies.

In Yarosh v. Becane (1980), 63 Ohio St.2d 5, 17 O.O.3d 3, 406 N.E.2d 1355, we held at paragraph two of the syllabus:

"The State Personnel Board of Review has jurisdiction over appeals from removals of public employees if it determines that such employees are in the classified service, regardless of how they have been designated by their appointing authorities." (Emphasis added.)

Under R.C. 124.40, the municipal civil service commission has the same authority with respect to city health district employees. In State ex rel. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, 605 N.E.2d 37, we refused to issue a writ of mandamus to reinstate an employee who claimed to have been wrongly transferred from the classified to the unclassified civil service, and then dismissed the complaint, finding that appeal under R.C. 124.34 was an adequate remedy at law. See, also, State ex rel. Gillivan v. Bd. of Tax Appeals (1994), 70 Ohio St.3d 196, 638 N.E.2d 74.

Just as we have held that the statutory appeals process is adequate to deny a writ of mandamus seeking to reinstate an employee, so we hold that such process is adequate to deny a writ of prohibition seeking comparable relief. However, the availability of adequate remedies is irrelevant if the lower tribunal is without jurisdiction whatsoever to act and the lack of jurisdiction is patent and unambiguous. Ohio Dept. of Adm. Serv, supra, 54 Ohio St.3d at 51, 562 N.E.2d at 128-129, citing State ex rel. Adams v. Gusweiler (1972), 30 Ohio St.2d 326, 59 O.O.2d 387, 285 N.E.2d 22 (tribunal lacked any jurisdiction whatsoever), and State ex rel. Safeco Ins. Co. of Am. v. Kornowski (1974), 40 Ohio St.2d 20, at 22, 69 O.O.2d 90, at 91, 317 N.E.2d 920, at 921 (lack of jurisdiction was patent and unambiguous).

In Gusweiler, we specifically distinguished cases in which the inferior tribunal had at least basic statutory jurisdiction to proceed in the case. 30 Ohio St.2d at 329, 59 O.O.2d at 389, 285 N.E.2d at 24.

Section 69 of the Toledo Charter grants appellant basic authority to remove appellee. Moreover, any lack of authority is far from patent and unambiguous. Therefore, the availability...