State ex rel. Ohio Civ. Serv. Employees Assn., AFSCME, Local 11, AFL-CIO v. State Emp. Relations Bd., 104 Ohio St.3d 122 (OH 12/15/2004), Case No. 2003-1010.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: Moyer
• Citation: 2004 Ohio 6363,104 Ohio St.3d 122
• Parties: State ex rel. Ohio Civil Service Employees Association, AFSCME, Local 11, AFL-CIO, Appellee, v. State Employment Relations Board, Appellant.
• Docket Number: Case No. 2003-1010.
• Decision Date: 15 December 2004

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104 Ohio St.3d 122 2004 Ohio 6363 State ex rel. Ohio Civil Service Employees Association, AFSCME, Local 11, AFL-CIO, Appellee,
v.
State Employment Relations Board, Appellant. Case No. 2003-1010. In the Supreme Court of Ohio. Submitted March 30, 2004. Decided December 15, 2004.

APPEAL from the Court of Appeals for Franklin County, No. 02AP-1007, 152 Ohio App.3d 551, 2003-Ohio-2021, 789 N.E. 2d 636.

Buckley King and James E. Melle; and Linda K. Fiely, for appellee.

Jim Petro, Attorney General, and Sharon A. Jennings, Assistant Attorney General, for appellant.

MOYER, C.J.

{¶ 1} This appeal tests the validity of an amendment to R.C. 3318.31, which the State Employment Relations Board ("SERB") had applied to exclude certain employees from the collective-bargaining process. Because we conclude that the amendment to R.C. 3318.31 violated the one-subject rule of the Ohio Constitution, we affirm the court of appeals' judgment granting the Ohio Civil Service Employees Association ("OCSEA") a writ of mandamus.

I

{¶ 2} Pursuant to its collective-bargaining agreement with the state of Ohio, relator-appellee, OCSEA, is the exclusive bargaining representative for certain collective-bargaining units in Ohio. In 2001, OCSEA attempted to reach an agreement with the state to include within those units the employees of the Ohio School Facilities Commission ("OSFC"). When these efforts proved

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unsuccessful, OCSEA filed three petitions for amendment of certification and three petitions for clarification of a bargaining unit with respondent-appellant, SERB.

{¶ 3} While the six petitions were pending before SERB, the Ohio General Assembly enacted Am.Sub.H.B. No. 405. This legislation, which SERB refers to as a "budget corrections bill," contains numerous provisions meant to balance and stabilize Ohio's operating budget. Among its provisions, Am.Sub.H.B. No. 405 authorized Ohio's participation in a multistate lottery, R.C. 3770.02, transferred "rainy-day" and tobacco funds to the General Revenue Fund, 2001 HB 405, Sections 29 and 32, and addressed various other budgetary programs. All told, Am.Sub.H.B. No. 405 amended, enacted, or repealed over 90 sections of the Revised Code and enacted 44 uncodified provisions of law.

{¶ 4} Am.Sub.H.B. No. 405 also amended R.C. 3318.31, which governs the powers and responsibilities of OSFC. As amended, R.C. 3318.31(B) provides that "[t]he employees of [OSFC] shall be exempt from Chapter 4117. of the Revised Code and shall not be public employees as defined in section 4117.01 of the Revised Code." Relying on this newly enacted amendment, the state filed with SERB a motion to dismiss the six petitions. SERB granted the state's motion, reasoning that "Am. Sub. H.B. No. 405 is clear. * * * The employees in question are exempt and are not public employees as defined in Ohio Revised Code section 4117.01. No issues remain that warrant a hearing."¹

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{¶ 5} OCSEA thereafter filed a petition for a writ of mandamus in the Franklin County Court of Appeals, asserting that SERB had improperly dismissed the six petitions and the unfair-labor-practice charge. The magistrate determined that, although OCSEA brought the action in mandamus, the real object of the relief it sought was a declaration that the amended version of R.C. 3318.31 was unconstitutional. Reasoning that the court of appeals does not have original jurisdiction over actions for declaratory judgment, the magistrate recommended that the court of appeals dismiss the case.

{¶ 6} After OCSEA filed objections to the magistrate's decision, the court of appeals, despite adopting the magistrate's findings of fact, rejected the magistrate's conclusions of law. Specifically, the court of appeals determined that an action for declaratory judgment would not provide OCSEA with a plain and adequate remedy at law. As a result, it determined that OCSEA's petition for a writ of mandamus was the appropriate vehicle by which to challenge SERB's dismissal order.

{¶ 7} Having rejected the magistrate's recommendation to dismiss the case, the court of appeals addressed the constitutionality of the bill that had amended R.C. 3318.31. The court observed that "[t]he amendment to R.C. 3318.31 exempting OSFC employees from the provisions of the Public Employees Collective Bargaining Act does not share a common purpose with and has no discernible practical or rational relationship to the other provisions in the enacted bill." State ex rel. Ohio Civ. Serv. Employees Assn. v. State Emp. Relations Bd., 152 Ohio App.3d 551, 2003-Ohio-2021, 789 N.E.2d 636, ¶ 29. Accordingly, the court held that Am.Sub.H.B. No. 405 violates the "one-subject rule" of the Ohio Constitution and issued a writ of mandamus ordering SERB to reinstate the six petitions within 30 days.

{¶ 8} The cause is now before this court upon SERB's appeal as of right.

II

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{¶ 9} The threshold issue in this case is whether mandamus was the proper vehicle to challenge SERB's dismissal order. The Ohio Constitution confers upon the Supreme Court of Ohio and the Ohio courts of appeals concurrent, original jurisdiction over writs of mandamus—i.e., written orders, in the name of a state or other competent legal authority, that command a public officer or agency to perform an official act. Sections 2 and 3, Article IV, Ohio Constitution; R.C. 2731.01. To be entitled to a writ of mandamus, a relator must demonstrate that (1) the relator has a clear legal right to the relief requested, (2) the respondent is under a clear legal duty to perform the requested act, and (3) the relator has no plain and adequate remedy in the ordinary course of law. State ex rel. Natl. City Bank v. Bd. of Edn. (1977), 52 Ohio St.2d 81, 84, 6 O.O.3d 288, 369 N.E.2d 1200.

{¶ 10} The third requirement for mandamus relief—that relators lack a plain and adequate remedy in the ordinary course of law—has recently occasioned some confusion and represents the crux of the initial disagreement between the parties. OCSEA contends, and the court of appeals agreed, that OCSEA lacked a plain and adequate remedy in the ordinary course of law. SERB, by contrast, argues that OCSEA had two plain and adequate legal remedies: (1) an action for declaratory judgment and (2) an appeal from the SERB order to the court of common pleas. SERB raised the former remedy in the court of appeals; however, it did not raise the latter. " `Ordinarily, reviewing courts do not consider questions not presented to the court whose judgment is sought to be reversed.' " See State ex rel. Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78, 81, 679 N.E.2d 706, quoting Goldberg v. Indus. Comm. (1936), 131 Ohio St. 399, 404, 6 O.O. 108, 3 N.E.2d 364. We conclude, therefore, that SERB waived the argument that OCSEA had an adequate remedy at law by appealing the dismissal order to the court of common pleas. Accordingly, we limit our

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threshold inquiry to whether OCSEA had a plain and adequate remedy in an action for declaratory judgment.

{¶ 11} It is well settled that "if the allegations of a complaint for a writ of mandamus indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, the complaint does not state a cause of action in mandamus." State ex rel. Grendell v. Davidson (1999), 86 Ohio St.3d 629, 634, 716 N.E.2d 704. Because neither the Supreme Court of Ohio nor the Ohio courts of appeals have original jurisdiction over claims for declaratory judgment, State ex rel. Ministerial Day Care Assn. v. Zelman, 100 Ohio St.3d 347, 2003-Ohio-6447, 800 N.E.2d 21, ¶ 22, these courts lack jurisdiction over actions that, although styled in mandamus, actually seek a declaration of rights, status, or other legal relations. State ex rel. Phillips v. Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 535, 537, 757 N.E.2d 319.

{¶ 12} SERB contends that OCSEA's mandamus action was a disguised request for a declaration that the amendment to R.C. 3318.31 was unconstitutional and, therefore, the court of appeals should have dismissed it for want of jurisdiction. In addition, SERB argues that the availability of an action for declaratory judgment is a plain and adequate remedy at law, thus prohibiting the issuance of a writ of mandamus. In response, OCSEA advances two arguments. First, counsel for OCSEA asserted at oral argument that "there are at least four nonconstitutional grounds upon which this case can be decided in full by a writ of mandamus without need for any other relief, and that's what distinguishes this case from [the declaratory judgment] cases." OCSEA thus urges us to first consider affirming the judgment of the court of appeals on nonconstitutional grounds. OCSEA suggests that if we affirm on such grounds, we need not reach the issue of whether its mandamus action was a disguised action for declaratory judgment. We disagree.

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{¶ 13} Actions for declaratory judgment may be predicated on constitutional or nonconstitutional grounds. See R.C. 2721.02 (broadly authorizing parties to bring actions for declaratory judgments for a declaration of "rights, status, and other legal relations whether or not further relief is or could be claimed"). That OCSEA advances nonconstitutional theories is, therefore, immaterial to whether it had an adequate remedy at law by way of a declaratory judgment action. The relevant inquiry, rather, is whether OCSEA had a plain and adequate remedy at law by way of an action for a declaratory judgment—no matter the constitutional or nonconstitutional nature of the theories used to obtain that judgment. We thus reject the notion that the instant case is distinguishable from our previously decided declaratory judgment cases simply because OCSEA also raised nonconstitutional arguments.

{¶ 14} Second, OCSEA asserts that it could not have obtained complete relief in an action for declaratory judgment. We considered a similar argument in State ex rel. Dayton Fraternal Order of...