State ex rel. v. Ohio Civ. Rights Comm.

• Citation: 871 N.E.2d 1198,171 Ohio App.3d 476,2006 Ohio 5509
• Decision Date: 23 October 2006
• Docket Number: No. CA2006-01-006.,CA2006-01-006.
• Parties: The STATE ex rel. AMERICAN LEGION POST 25, Appellant, v. OHIO CIVIL RIGHTS COMMISSION et al., Appellees.
• Court: United States Court of Appeals (Ohio)

871 N.E.2d 1198

171 Ohio App.3d 476

2006-Ohio-5509

The STATE ex rel. AMERICAN LEGION POST 25, Appellant, v. OHIO CIVIL RIGHTS COMMISSION et al., Appellees.

No. CA2006-01-006.

Court of Appeals of Ohio, Twelfth District, Fayette County.

Decided October 23, 2006.

Kiger & Kiger Lawyers and James A. Kiger, Washington C.H., for appellant.

Jim Petro, Attorney General, and Stephanie Bostos Demers and Lori A. Anthony, Assistant Attorneys General, for appellees.

POWELL, Presiding Judge.

{¶ 1} Relator-appellant, American Legion Post 25, appeals an order of the Fayette County Court of Common Pleas dismissing its action for mandamus, in which appellant sought to compel respondents-appellees, the Ohio Civil Rights Commission and Ohio Attorney General Jim Petro, to issue a subpoena on behalf of appellant.¹

{¶ 2} On August 18, 2005, Carol Van Slyke ("complainant"), a former employee of appellant, filed a charge of discrimination with the Ohio Civil Rights Commission. Complainant alleged that she had been sexually harassed by appellant's executive director, Dale Butler, and terminated in retaliation for complaining about the harassment.

{¶ 3} The commission notified appellant of the charge in a letter, dated August 18, 2005. Appellant responded by filing a position statement with the commission on September 19, 2005, alleging that it had terminated complainant shortly after learning she had been previously convicted of a felony and that complainant had filed the discrimination charges as her own act of retaliation for being terminated.

{¶ 4} On September 19 and 23, 2005, appellant sent letters to the commission, requesting that it issue a subpoena in its name to Adult Parole Authority Officer David Porter. Appellant requested that Officer Porter provide it with all documents pertaining to complainant's sentence in Arizona, the transfer of her case to Ohio, and all documents pertaining to her parole or probation, including those related to any restrictions placed on her during her parole or probation and the dates and length of her supervision. Appellant also requested a subpoena requiring Officer Porter to meet with it to discuss his conversations with Dale Butler.

{¶ 5} The commission denied appellant's request to issue a subpoena to Officer Porter, advising appellant that the commission would not issue a subpoena on behalf of a party during the "investigative phase" of a discrimination charge, but only during the "hearing process." Thereafter, the commission did issue a subpoena to Officer Porter, but only as part of its investigation of complainant's charges— not on appellant's behalf. In response, Officer Porter provided the commission with information and statements that factored into the agency's decision-making process. When appellant learned of the existence of this information, appellant sought to obtain it from the commission, but the commission refused to share the information with appellant, relying on certain provisions in R.C. 4112.05(B).

{¶ 6} On October 27, 2005, the commission issued a decision, finding that it was "probable" that appellant had engaged in an unlawful discriminatory practice under R.C. 4112.02 when it terminated complainant's employment. The commission scheduled the matter for conciliation.

{¶ 7} On December 15, 2005, the commission issued a complaint and notice of hearing to appellant, after failing to resolve the matter through the informal methods of conference, conciliation, and persuasion. The complaint stated that "the Commission determined at its meeting on October 27, 2005, that it is probable that unlawful discriminatory practices have been or are being perpetrated by [appellant] in violation of [R.C.] 4112.02(A) and (I)."

{¶ 8} While these administrative proceedings were pending, appellant, on October 26, 2005, filed a complaint in the Fayette County Court of Common Pleas, seeking a peremptory writ of mandamus compelling the commission and Ohio Attorney General Jim Petro to prepare and issue a subpoena to Officer Porter as requested in the letters appellant sent to the commission on September 19 and 23, 2005.

{¶ 9} On November 23, 2005, the commission moved to dismiss appellant's complaint pursuant to Civ.R. 12(B)(6), arguing that appellant had no clear legal right to have the commission issue the requested subpoena, the commission had no clear legal duty to issue the subpoena, and appellant had an adequate remedy at law.

{¶ 10} On January 4, 2006, the trial court held a phone conference, permitting the parties to make any additional arguments they had regarding the case. Later that day, the trial court issued an entry ordering that appellant's complaint for a writ of mandamus be dismissed on the grounds that appellant had no clear legal right to the issuance of a subpoena during the commission's "investigatory phase," the commission had no clear legal duty to issue the subpoena, and appellant's "clear remedy lies in the ongoing administrative process, including full discovery rights in the current `formal complaint' stage."

{¶ 11} Appellant now appeals the trial court's order dismissing its complaint for a writ of mandamus, raising the following assignment of error:

{¶ 12} "The trial court erred to the prejudice of appellant as a matter of law when it failed to issue a preemptory [sic] writ of mandamus to the Ohio Civil Rights Commission when the appellant alleged that it had no adequate remedy at law."

{¶ 13} Before addressing the issues raised in appellant's assignment of error, we need to discuss briefly the nature of the two proceedings involved in this case: (1) a discrimination claim brought pursuant to R.C. Chapter 4112 and (2) an application for a writ of mandamus brought pursuant to R.C. Chapter 2731.

{¶ 14} R.C. 4112.05(B)(1) provides that "[a]ny person may file a charge with the commission alleging that another person has engaged or is engaging in an unlawful discriminatory practice," including sexual harassment, see R.C. 4112.02(A), or retaliation for complaining about an unlawful discriminatory practice, see R.C. 4112.02(I). The person who files the charge is known as "the complainant," and the party against whom the charge is filed is known as "the respondent." See, generally, R.C. 4112.05(B).

{¶ 15} R.C. 2731.01 states that "[m]andamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." R.C. 2731.04 allows a person to petition for an application for the writ of mandamus "in the name of the state on the relation of the person applying." The party that applies for a writ of mandamus is known as "the relator," while the party against whom the writ is sought is known as "the respondent." See, generally, State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 715 N.E.2d 1062.

{¶ 16} We are concerned that the use of the term "respondent" may cause confusion in this case since appellant is "the respondent" for purposes of the discrimination claim, while the commission is "the respondent" for purposes of the mandamus action. Therefore, when we use the term "respondent," we will be careful to specify which party to whom we are referring. When we use the term "respondent" without specifically referring to either party, we will be using it simply as the term is used in R.C. Chapter 4112 or Ohio Adm. Code Chapters 4112-1 and 4112-3 or as the term is used in mandamus actions brought pursuant to R.C. Chapter 2731. With that said, we now turn to the merits of appellant's assignment of error.

{¶ 17} Appellant argues that the trial court erred in failing to issue a peremptory writ of mandamus to the commission, compelling it to issue the requested subpoena. Appellant's assignment of error and the commission's response to it raise a number of issues that we shall address in an order that facilitates our analysis.

{¶ 18} The first issue we must decide is whether the issues raised in this appeal are moot. The commission argues that appellant's request for a writ of mandamus is now moot because appellant has been entitled to have the commission issue a subpoena on appellant's behalf since December 15, 2005, which was the day the commission issued a complaint against appellant. Consequently, the commission argues that this matter was moot even before the trial court dismissed appellant's complaint. We disagree with this argument.

{¶ 19} "In a mandamus action, a writ will be denied when a question presented by the relator becomes moot." State ex rel. The Plain Dealer v. Ohio Dept. of Ins. (1997), 80 Ohio St.3d 513, 518, 687 N.E.2d 661. A question becomes moot "[w]here, prior to the rendition of a final decision, an event occurs, without the fault of either party, which renders it impossible for the court to grant effectual relief in a case." Ohio Civ. Serv. Emp. Assn., AFSCME, Local 11, AFL-CIO, v. Ohio Dept. of Transp. (1995), 104 Ohio App.3d 340, 343, 662 N.E.2d 44. When the issues in a case become moot, the case should be dismissed. Id.

{¶ 20} There is, however, a recognized exception to the mootness doctrine for cases that present issues that are capable of repetition but will continually evade review. Id., citing James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 791, 600 N.E.2d 736. This case falls within that exception to the mootness doctrine.

{¶ 21} The commission asserts that it has no obligation under R.C. 4112.04(B)(3)(b) to issue a subpoena on respondent's behalf until the commission issues a complaint against a respondent, even though that section does not expressly impose such a limitation. Therefore, this issue is clearly "capable of repetition." Flaherty, 74 Ohio App.3d at 791, 600 N.E.2d 736.

{¶ 22} Furthermore, this case itself demonstrates that the issue "will continually evade review," id., if we accept the commission's argument...