State ex rel. Moore v. Sanders

• Decision Date: 25 March 1981
• Docket Number: No. 80-1418,80-1418
• Citation: 19 O.O.3d 264,65 Ohio St.2d 72,418 N.E.2d 1339
• Parties: , 19 O.O.3d 264 The STATE, ex rel. MOORE, Appellant, v. SANDERS, Sheriff, Appellee.
• Court: Ohio Supreme Court

Page 72

65 Ohio St.2d 72

418 N.E.2d 1339, 19 O.O.3d 264

The STATE, ex rel. MOORE, Appellant, v. SANDERS, Sheriff, Appellee.

No. 80-1418.

Supreme Court of Ohio.

March 25, 1981.

Lucas, Prendergast, Albright, Gibson, Newman & Gee, and W. Joseph Strapp, Columbus, for appellant.

James A. Berry, Pros. Atty., and David E. Smith, Springfield, for appellee.

PER CURIAM.

The appellant sets forth the following propositions of law: (1) that delay in asserting a right does not of itself constitute laches where a deputy, who is unlawfully removed by the sheriff, brings an action for reinstatement shortly after learning of his rights as a classified civil servant and where the sheriff has not been materially prejudiced by the delay, and (2) that an action by a classified civil servant whose removal was contrary to R.C. 124.34 is governed by the six-year statute of limitations in R.C. 2305.07 and not by the doctrine of laches where the delay in question was excusable and the appointing authority was not materially prejudiced thereby.

The determinative issue herein is whether the Court of Appeals abused its discretion in denying the writ of mandamus for the reason that appellant had allowed an unreasonable time to elapse from the date of his discharge, January 30, 1976, to September 21, 1977, the date of filing the first mandamus action; and finding that such delay was prejudicial to Sheriff Sanders.

Appellant argues that any delay in his bringing the first mandamus action may be excused because of his reliance upon the "faulty" advice given to him by two different attorneys. Appellant cites State, ex rel. Sheets, v. Portsmouth (1944), 143 Ohio St. 302, 54 N.E.2d 956, in support of this argument.

Additionally, as further reasons for his delay in bringing any legal action, appellant sets forth the time spent in his unsuccessful candidacy for sheriff and the successful candidate's (Sanders) promise of reinstatement.

Upon a review of the totality of the facts and circumstances of this case, we hold that the Court of Appeals did not abuse its discretion in denying the writ.

Here, the Court of Appeals, while acknowledging that the appellant was an employee within the civil service of the state and, further, that he had not been discharged according to the provisions of R.C. Chapter 124, nevertheless held that:

" * * * A court, in the exercise of its discretion, may refuse to issue a writ of mandamus in favor of a relator who has allowed an unreasonable time to elapse before bringing the action, especially where such delay may be prejudicial to the rights of the respondent."

The court cited and relied upon State, ex rel. Stoer, v. Raschig (1943), 141 Ohio St. 477, 49 N.E.2d 56 (civil servant who waited 11 months after dismissal precluded from restoration by writ of mandamus because of laches), and State, ex rel. Smith, v. Witter (1926), 114 Ohio St. 357, 151 N.E. 192 (civil service employee who waited more than two years after removal before bringing a mandamus action for restoration and salary held barred by laches).

The appellant argues that this court's ruling in State, ex rel. Sheets, v. Portsmouth, supra, is supportive of his position. We note that in State, ex rel. Sheets, this court did suggest, at page 304, 54 N.E.2d 956, that the defense of improper legal advice "would have appeal" in a case where there was a "valid subsisting cause of action." However, here, the defense of improper legal advice does not have "appeal," since the appellant's actions subsequent to receiving that advice waived his right of restoration to office. Basically, the same situation prevailed in Sheets. In that case, the relator-employee, based upon faulty advice, had voluntarily retired and accepted a pension. Here, the appellant ran for the office of sheriff subsequent to receiving the faulty advice, and we view such act as constituting an act of waiver of his right of restoration. Such facts viewed in their totality bring us to the conclusion that appellant has failed to overcome the assertion of laches.

Appellant further argues that R.C. 2305.07 would authorize the bringing of this mandamus action any time within six years. However, we hold that laches may be a bar to the bringing of this action even in light of this statute. As set forth in 35 Ohio Jurisprudence 2d, Mandamus, Section 40, at pages 289-290:

"Irrespective of whether a mandamus action is barred by a statute of limitations, it is well settled that an application for the writ must be made within a reasonable time after the alleged fault or neglect of duty, and that laches or delay in making an application may afford sufficient cause for its denial, especially if the delay has been prejudicial to the rights of the respondent or to those of other persons. The relator must be diligent in applying for this extraordinary remedy, and inasmuch as mandamus lies within the sound discretion of the court to which application for the writ is made, the question whether laches has barred the claim of the relator rests in the sound discretion of the court * * *."

We hold that the Court of Appeals had before it sufficient evidence to conclude that the appellant was in fact guilty of laches in bringing his first mandamus action, and that such delay was prejudicial to the appellee, Sheriff Sanders. Under these circumstances, we cannot say that the Court of Appeals abused its discretion in reaching such conclusion.

Therefore, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

WILLIAM B. BROWN, PAUL W. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.

CELEBREZZE, Chief Justice, concurring.

The majority bases its decision on the doctrine of laches. Before the majority addressed the issue of laches, I believe it should have decided whether mandamus was appropriate. Because mandamus relief was not appropriate, I must concur in the judgment.

A court may grant a writ of mandamus only after it finds that relator has a clear legal right to the relief prayed for, that respondent is under a clear legal duty to perform the requested act, and that relator has no adequate remedy at law. State, ex rel. Heller, v. Miller (1980), 61 Ohio St.2d 6, 399 N.E.2d 66.

R.C. 124.34 provides for the filing of an appeal, in writing, with the State Personnel Board of Review within 10 days of the filing of a removal order. In the case at bar, as in most cases where employees designated to be in the unclassified service are terminated, no removal order was filed. It is because of the silence of R.C. Chapter 124 regarding such terminations that the Court of Appeals held that mandamus was appropriate.

R.C. 124.34, however, places strict limitations on removals of all employees in the classified service. These limitations would be of little effect if employees designated as unclassified by their appointing authorities could not obtain board review of the validity of that designation. As this court stated in Yarosh v. Becane (1980), 63 Ohio St.2d 5, at page 10, 406 N.E.2d 1355:

"The object of the civil service system is to provide stability of employment in the public sector. An essential element of the system is review of removals by the board. Such review offers the employee a chance to be heard in a relatively simple and expeditious proceeding.

"An appointing authority cannot deny employees this right of review merely by declaring them to be unclassified. The board 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. In the case at bar the board determined that the deputies were in the classified service."

Any result denying review would be an abuse and unreasonable. It is presumed that the General Assembly does not enact laws producing unreasonable or absurd consequences. Canton v. Imperial Bowling Lanes (1968), 16 Ohio St.2d 47, 242 N.E.2d 566. As a consequence, such review...