State ex rel. Grendell v. Davidson

• Decision Date: 28 September 1999
• Docket Number: No. 99-1198.,99-1198.
• Citation: 86 Ohio St.3d 629,716 NE 2d 704
• Parties: THE STATE OF OHIO EX REL. GRENDELL ET AL. v. DAVIDSON, SPEAKER OF THE HOUSE, ET AL.
• Court: Ohio Supreme Court

86 Ohio St.3d 629

716 NE 2d 704

THE STATE OF OHIO EX REL. GRENDELL ET AL. v. DAVIDSON, SPEAKER OF THE HOUSE, ET AL.

No. 99-1198.

Supreme Court of Ohio.

Submitted July 28, 1999.

Decided September 28, 1999.

Grendell & Associates Co., L.P.A., and Timothy J. Grendell; Phillips & Co., L.P.A., and Gerald W. Phillips, for relators.

Betty D. Montgomery, Attorney General, Judith L. French, Robert C. Maier and Elizabeth S. Luper, Assistant Attorneys General, for respondents. Per Curiam.

Motion for Leave to Amend Complaint

Relators claim that pursuant to Civ.R. 15(A), because no responsive pleading had been filed at the time that they filed their amended complaint, they have an unrestricted right to amend their complaint as a matter of course. S.Ct.Prac.R. X(2) provides that all original actions other than habeas corpus filed in this court "shall proceed under the Ohio Rules of Civil Procedure, unless clearly inapplicable." State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections (1997), 80 Ohio St.3d 182, 185, 685 N.E.2d 507, 510. Civ.R. 15(A) provides that "[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served * * *." (Emphasis added.) Under the Rules of Civil Procedure, a motion to dismiss is not a responsive pleading, and a party can amend his or her complaint as a matter of course even after a motion to dismiss has been filed. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 549, 605 N.E.2d 378, 382.

Hanson, however, was not an original action filed in this court, which involves the application of the Supreme Court Rules of Practice. S.Ct.Prac.R. X(5), entitled "Response to complaint; court action," designates an answer, motion to dismiss, or a motion for judgment on the pleadings (coupled with an answer) as the appropriate responses for original actions other than habeas corpus filed here that will prompt our S.Ct.Prac.R. X(5) determination. In effect, a motion to dismiss constitutes a "responsive pleading" for purposes of the abbreviated pleading schedule set forth in S.Ct.Prac.R. X(5), and, consequently, relators could not amend their complaint as a matter of course pursuant to Civ.R. 15(A) after respondents filed a motion to dismiss. Civ.R. 15(A) requires leave of court or written consent of the adverse party to obtain amendment of a complaint after a responsive pleading is served. Rockey v. 84 Lumber Co. (1993), 66 Ohio St.3d 221, 224, 611 N.E.2d 789, 791.

Nevertheless, relators alternatively request leave to amend their complaint pursuant to the allowance of an amendment under Civ.R. 15(A) following a responsive pleading ("Leave of court shall be freely given when justice so requires"), and the supplemental pleading provision of Civ.R. 15(E) ("Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented."). Given the general policy favoring liberal amendment of pleadings under Civ.R. 15(A) and because relators' additional claims challenge the provisions of Am.Sub.H.B. No. 283, which had not been enacted at the time relators filed their initial complaint, see Civ.R. 15(E), relators' motion for leave to amend has merit. See, e.g., Patterson v. V & M Auto Body (1992), 63 Ohio St.3d 573, 575, 589 N.E.2d 1306, 1308; Perry v. Eagle-Picher Industries, Inc. (1990), 52 Ohio St.3d 168, 170, 556 N.E.2d 484, 486-487.

Based on the foregoing, we grant relators' motion for leave to amend their complaint.

S.Ct.Prac.R. X(5) Determination

S.Ct.Prac.R. X(5) provides that "[a]fter the time for filing an answer to the complaint or motion to dismiss, the Supreme Court will either dismiss the case or issue an alternative or a peremptory writ, if a writ has not already been issued." Under S.Ct.Prac.R. X(5), we must determine whether an alternative writ, peremptory writ, or dismissal is appropriate. State ex rel. Weiss v. Hoover (1999), 84 Ohio St.3d 530, 531, 705 N.E.2d 1227, 1228. Dismissal is appropriate if it appears beyond doubt, after presuming the truth of all material factual allegations and making all reasonable inferences in favor of the relators, that they are not entitled to the requested extraordinary relief. State ex rel. Dist. 1199, Health Care & Social Serv. Union, SEIU, AFL-CIO v. Lawrence Cty. Gen. Hosp. (1998), 83 Ohio St.3d 351, 352, 699 N.E.2d 1281, 1282

.

Dismissal is warranted here for the following reasons. Relators erroneously base their preeminent claim for extraordinary relief on the General Assembly's alleged failure to follow its own procedural rule by the conference committee's deletion of the airport funds provision that had been included in the House and Senate versions of the bill and the conference committee's addition of fourteen items that had not previously been considered or acted upon by the House or Senate.

In State ex rel. City Loan & Sav. Co. of Wapakoneta v. Moore (1931), 124 Ohio St. 256, at 258-259, 177 N.E. 910, at 910-911, we held:

"The rules of the General Assembly seem to provide that a motion to reconsider should be filed within two days after the previous question is ordered in each house. The two-day rule is a rule of the General Assembly, not prescribed by the Constitution. Section 8 of Article II of the Constitution authorizes each house to determine its own rules of proceeding. Sections 9 and 16 prescribe certain rules which are mandatory, and a failure to observe them might be inquired into by the courts, and if it is found that the Legislature has violated the constitutional limitations it would be within the power of the court to declare the legislation invalid. The provision for reconsideration is not part of the Constitution and is therefore entirely within the control of the General Assembly. Having made the rule, it should be regarded, but a failure to regard it is not the subject-matter of judicial inquiry. It has been decided by the courts of last resort of many states, and also by the United States Supreme Court, that a legislative act will not be declared invalid for noncompliance with rules. United States v. Ballin [1892], 144 U.S., 1, 12 S.Ct., 507, 36 L.Ed., 321; St. Louis & San Francisco Ry. Co. v. Gill [1891], 54 Ark., 101, 15 S.W., 18, 11 L.R.A., 452; Sweitzer [sic, Schweizer] v. Territory of Oklahoma [1897], 5 Okl., 297, 47 P., 1094; State v. Brown [1890], 33 S.C., 151, 11 S.E., 641; In re Ryan [1891], 80 Wis., 414, 50 N.W., 187; McDonald v. State [1891], 80 Wis., 407, 50 N.W., 185." (Emphasis added.)

In other words, it is well settled that, in considering the validity of a statute, courts will not inquire into whether the legislature complied with its own rules in enacting the statute, as long as no constitutional provision is violated. See, generally, Annotation, Power of Court to Pass upon Rules of Legislative Body (1931), 76 L.Ed. 967; see, also, Reaves v. Jones (1974), 257 Ark. 210, 213-214, 515 S.W.2d 201, 203, where the Supreme Court of Arkansas held that the state legislature's observance of its own joint rules is a matter entirely subject to legislative control and discretion that is not reviewable by the judiciary. " `[T]he decisions are nearly unanimous in holding that an act cannot be declared invalid for failure of a house to observe its own rules. Courts will not inquire whether such rules have been observed in the passage of the act.'" Brown v. Hansen (C.A.3, 1992), 973 F.2d 1118, 1122, quoting Singer, Sutherland Statutory Construction (4 Ed.1985) 434, Section 7.04, now (5 Ed.1994) 566, Section 7.04; McDonald, 80 Wis. at 412, 50 N.W. at 186 ("We think no court has ever declared an act of the legislature void for non-compliance with the rules of procedure made by itself, or the respective branches thereof, and which it or they may change or suspend at will.").

Therefore, relators' claims concerning the General Assembly's alleged failure to follow Joint Rule 19 are nonjusticiable because Section 7, Article II of the Ohio Constitution, which provides that "[e]ach House [of the General Assembly] shall determine its own rules of proceeding," commits the issuance and observance of procedural rules to the General Assembly. See, generally, Nixon v. United States (1993), 506 U.S. 224, 228, 113 S.Ct. 732, 735, 122 L.Ed.2d 1, 8-9; DeRolph v. State (1997), 78 Ohio St.3d 193, 265-267, 677 N.E.2d 733, 783-784. A writ of mandamus will not issue to a legislative body or its officers to require the performance of duties that are purely legislative in character and over which such legislative bodies have exclusive control. Wapakoneta v. Helpling (1939), 135 Ohio St. 98, 108, 13 O.O. 460, 464, 19 N.E.2d 772, 777. The constitutional principle of separation of powers protects the General Assembly from such infringement. See, generally, State v. Hochhausler (1996), 76 Ohio St.3d 455, 463, 668 N.E.2d 457, 465-466.

In addition, adoption of relators' claims to compel the passage of the airport funds provision would contravene the constitutional requirement that "[t]he general assembly shall enact no law except by bill, and no bill shall be passed without the concurrence of a majority of the members elected to each house." Section 15(A), Article II, Ohio Constitution. Relators' contention that when the House and Senate pass different versions of a bill, the nondiffering provisions contained in the differing versions become law, is consequently meritless.

Relators next rely on Maloney v. Rhodes (1976), 45 Ohio St.2d 319, 74 O.O.2d 499, 345 N.E.2d 407, to argue that the General Assembly's alleged failure to comply with Joint Rule 19 is justiciable because of the claimed noncompliance with Section 15(E), Article II of the Ohio Constitution, which provides that "[e]very bill which has passed both houses of the general assembly shall be signed by the...