State ex rel. v. Pub. Emps. Retirement Bd.
| Decision Date | 01 November 2006 |
| Docket Number | No. 2005-2426.,2005-2426. |
| Citation | 855 N.E.2d 444,111 Ohio St.3d 118,2006 Ohio 5339 |
| Parties | The STATE ex rel. DAVIS et al., Appellants, v. PUBLIC EMPLOYEES RETIREMENT BOARD et al., Appellees. |
| Court | Ohio Supreme Court |
Buckley King, L.P.A., James E. Melle, Columbus, and John Hallbauer, Cleveland, for appellants.
Jim Petro, Attorney General; Jones Day, Michael R. Gladman, Columbus, and Kerstin Sjoberg-Witt, for appellee Public Employees Retirement Board.
Ron O'Brien, Franklin County Prosecuting Attorney, and Nick Soulas, Assistant Prosecuting Attorney; and Adams, Babner & Rasmussen, L.L.C., and Teri G. Rasmussen, Columbus, for appellees Franklin County Board of County Commissioners, Franklin County Public Defender Commission, Franklin County Public Defender, and Yeura Venters.
Scheuer, Mackin & Breslin, L.L.C., and Robert S. Corker; and Strauss & Troy, Richard S. Wayne, and John M. Levy, Cincinnati, urging reversal for amici curiae, Frisch's Restaurants, Inc., United Dairy Farmers, Inc., J.W. Harris Co., Inc., and Peck, Hannaford & Briggs.
{¶ 1} This is an appeal from a judgment denying a motion for class certification in a mandamus case.1
{¶ 2} In 1976, the General Assembly enacted R.C. Chapter 120, the Public Defenders Act, which established the Ohio Public Defender Commission and authorized counties to create county and joint-county public-defender commissions. Am. Sub.H.B. No. 164, 136 Ohio Laws, Part I, 1868. Pursuant to these provisions, appellee Franklin County Board of Commissioners established appellee Franklin County Public Defender Commission to provide legal representation to indigent persons as required by law, and the commission appointed the Franklin County Public Defender.
{¶ 3} The public defender then hired attorneys and support personnel to form the Franklin County Public Defender's Office ("FCPDO"). The FCPDO operated as if it were a private, unincorporated association, and both FCPDO and its employees paid Social Security taxes on their wages.
{¶ 4} In 1984, the General Assembly enacted R.C. 120.14(F), which authorized county and joint-county public-defender commissions to contract with nonprofit organizations to provide representation to indigent criminal defendants. Am.Sub. S.B.No. 271, 140 Ohio Laws, Part I, 949, 956-957. The Franklin County Public Defender Commission then contracted with the Franklin County Board of Commissioners and the city of Columbus to provide legal representation for indigent criminal defendants in Franklin County, and the commission subcontracted with the newly incorporated FCPDO to provide these services.
{¶ 5} In June 1998, we granted a writ of mandamus ordering appellee Public Employees Retirement Board ("PERB") to credit a former FCPDO employee for her years of service as an attorney and law clerk with FCPDO from 1978 to 1980 and from 1982 to 1994. State ex rel. Mallory v. Pub. Emps. Retirement Bd. (1998), 82 Ohio St.3d 235, 694 N.E.2d 1356. We held that pre-1984 FCPDO attorneys were public employees during their employment with FCPDO and that after the 1984 enactment of R.C. 120.14(F) and the incorporation of FCPDO as a nonprofit organization, FCPDO attorneys who continued to represent indigent criminal defendants were entitled to continuing service credit with the Public Employees Retirement System ("PERS") under R.C. 145.01(A)(2). Id. at 241, 245, 694 N.E.2d 1356.
{¶ 6} Effective January 1, 1999, appellee Franklin County Public Defender replaced the FCPDO, and its employees were treated as public employees subject to PERS.
{¶ 7} In August 2003, we held that a former FCPDO attorney was not entitled to PERS service credit when she was rehired by FCPDO after its 1984 incorporation as a nonprofit corporation. Van Dyke, 99 Ohio St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438. We concluded that when the attorney Id. at ¶ 29.
{¶ 8} In 2001, appellants, 12 present and former Franklin County Assistant Public Defenders and support personnel, and 39 other FCPDO attorneys and support staff employed from January 1, 1985, through December 31, 1998, requested a determination from PERS that they were public employees eligible for PERS membership and service credit during the specified period. In September 2003, PERS staff determined that based on this court's decision in Van Dyke, 99 Ohio St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438, the 51 claimants were working for a private, nonprofit corporation from January 1, 1985, through December 31, 1998, rather than a public employer during the pertinent period and that they were thus not entitled to PERS service credit.
{¶ 9} The 51 claimants appealed the PERS staff determination. On August 25, 2004, after an administrative hearing, PERB accepted a report and recommendation that had affirmed the staff decision. PERB concluded that FCPDO had acted as a private contractor rather than as a public employer from January 1, 1985, through December 31, 1998, and thus denied claimants' request for PERS service credit for that time period.
{¶ 10} On December 3, 2004, appellants filed a complaint in the Court of Appeals for Franklin County for a writ of mandamus to compel appellee PERB to vacate its August 25, 2004 determination and to retroactively credit appellants' and the proposed class members' accounts with all appropriate years of service for PERS and to compel appellees Franklin County Board of Commissioners, Franklin County Public Defender Commission, Franklin County and Columbus Public Defender Yeura Venters, and the Franklin County Public Defender to remit employer and employee contributions to PERB for the years appellants and the class members served as eligible employees but were wrongfully excluded from participation in PERS.
{¶ 11} On May 2, 2005, appellants filed a motion to certify their mandamus case as a class action. Appellants described the proposed class as "all persons who were hired as Assistant Franklin County Public Defenders and all personnel necessary to support them and the Franklin County Public Defender between January 1, 1985 and December 31, 1998," excluding appellees Franklin County Public Defender and Columbus Public Defender. Appellants claimed that the class action met the requirements of either Civ.R. 23(B)(1)(a), (1)(b), and/or (3). Appellees filed memoranda in opposition to appellants' motion for class certification.
{¶ 12} On July 8, 2005, a court of appeals magistrate recommended that appellants' motion for class certification be denied. The magistrate concluded that appellants had failed to meet the Civ.R. 23(A)(1) numerosity prerequisite because joinder of the 39 other potential claimants who had participated with the 12 appellants in the administrative proceedings before PERB was not impracticable and any other potential class members had not exhausted their administrative remedies. Civ.R. 23(A)(1) requires that the class be "so numerous that joinder of all members is impracticable." The magistrate declined to address whether appellants could meet one of the Civ.R. 23(B) requirements.
{¶ 13} Appellants filed objections to the magistrate's decision, and on December 15, 2005, the court of appeals overruled appellants' objections and adopted the magistrate's decision, with the exception of the analysis regarding numerosity. The court of appeals instead relied on precedent to hold that a class action was not appropriate because "a determination in favor of [appellants] would automatically accrue to the benefit of others similarly situated" without the unnecessary step of certifying a class.
{¶ 14} This cause is now before the court upon appellants' appeal as of right from the judgment denying their motion for class certification.
{¶ 15} Appellants request oral argument. Oral argument is not required in this appeal. S.Ct.Prac.R. IX(1). Nevertheless, we have discretion to grant oral argument pursuant to S.Ct.Prac.R. IX(2)(A), and in exercising this discretion, we consider whether the case involves a matter of great public importance, complex issues of law or fact, a substantial constitutional issue, or a conflict among courts of appeals. See, e.g., State ex rel. United Auto., Aerospace & Agricultural Implement Workers of Am. v. Ohio Bur. of Workers' Comp., 108 Ohio St.3d 432, 2006-Ohio-1327, 844 N.E.2d 335, ¶ 25-26.
{¶ 16} Appellants request oral argument because they believe that the case presents a "significant public policy question" as well as complex facts. The parties' briefs, however, are sufficient to resolve the issues raised, and this case does not involve a substantial constitutional issue, conflict among courts of appeals, or complex factual issues. State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 5. Therefore, we deny appellants' request and proceed to consider the merits.
{¶ 17} Appellants assert that this court's review of the court of appeals' decision denying the motion for class certification is plenary. Appellants are mistaken.
{¶ 18} We have consistently held that a "trial judge has broad discretion in determining whether a class action may be maintained and that determination will not be disturbed absent a showing of an abuse of discretion." Marks v. C.P. Chem. Co. (1987), 31 Ohio St.3d 200, 31 OBR 398, 509 N.E.2d 1249, syllabus; see, also, Howland v. Purdue Pharma L.P., 104 Ohio St.3d 584, 2004-Ohio-6552, 821 N.E.2d 141, ¶ 17. In rejecting a de novo standard of...
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