Wagner v. Cleveland

• Decision Date: 27 December 1988
• Docket Number: 54510,54623 and 54625,Nos. 54509,s. 54509
• Citation: 574 N.E.2d 533,62 Ohio App.3d 8
• Parties: WAGNER et al., Appellees, v. CITY OF CLEVELAND et al., Appellants.
• Court: Ohio Court of Appeals

Page 8

62 Ohio App.3d 8

574 N.E.2d 533

WAGNER et al., Appellees, v. CITY OF CLEVELAND et al., Appellants.

Nos. 54509, 54510, 54623 and 54625.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Dec. 27, 1988.

David R. Harbarger and Michael C. Regulinski, Cleveland, for appellees.

Marilyn G. Zack, Director of Law, Barbara R. Marburger and Deborah A. LeBarron, Cleveland, for appellants.

KRUPANSKY, Judge.

Plaintiffs Joseph Wagner and Laurence Wagner filed a notice of appeal in the Cuyahoga County Court of Common Pleas from an adverse ruling of the Cleveland Civil Service Commission, case No. 126227. Plaintiffs also filed in common pleas court an action for declaratory judgment, case No. 124412, which prayed for, inter alia, compensatory and punitive damages from the commission's decision. Plaintiffs' actions were consolidated by the common pleas court.

Pursuant to R.C. 119.12, ¹ the trial court held a hearing on the briefs in plaintiffs' civil service appeal. On September 18, 1987, in case No. 126227, the court reversed the Cleveland Civil Service Commission's removal of the plaintiffs from the eligibility list. The common pleas court found as follows:

"1) The Commission's decisions were not based upon a preponderance of probative and substantial evidence; 2) the Commission's rules have no standards upon which psychologists act when assessing applicants; 3) since the psychologists' reports of applicants' qualifications lacked substantiated reasons for their conclusions, the Commission could not exercise their authority to accept or reject the appellants; 4) the Commission's removal of appellants from its eligibility list was an unlawful and unconstitutional delegation of its independent decision-making responsibility to the psychologists who tested and interviewed the appellants; and 5) Rules 4.30-F, 5.40 and 5.50 of the Civil Service Commission's rules are unconstitutional."

Also on September 18, 1987, the common pleas court journalized judgment in plaintiffs' declaratory judgment action, case No. 124412.

In plaintiffs' declaratory judgment action the court made the following findings and granted the following relief:

"1) defendants' decisions to remove plaintiffs from the eligibility list were declared null and void; 2) defendants were enjoined from removing plaintiffs' names from the list; 3) plaintiffs were to be reinstated on the list from which they had been removed; 4) the Commission's decision to remove plaintiffs from the list was arbitrary and in bad faith; 5) plaintiffs be enrolled into the next class of the Cleveland Police Academy; 6) the Commission's delegation of its decision making authority in removing plaintiffs for psychological reasons was unlawfully delegated by the Commission to the psychologist; 7) the psychological examinations in determining the fitness of applicants was [sic] without objective criteria and was [sic] arbitrary; and 8) Civil Service Commission Rules 4.30-F, 5.40, and 5.50 are unconstitutional."

Defendants filed a timely notice of appeal and plaintiffs filed a timely cross-appeal.

The pertinent facts of these cases, which were consolidated on appeal, follow:

Joseph and Laurence Wagner are brothers who attempted to gain entry into the Cleveland Police Department by taking the civil service examination. The results of this examination disclosed Laurence Wagner was ranked fifth and Joseph Wagner was ranked tenth on the civil service commission's eligibility list.

Plaintiffs then were given psychological tests and interviews to determine whether they were qualified to become police officers. On October 8, 1985, both plaintiffs were found to be psychologically acceptable by two psychologists appointed by the commission's Doctors Robinson and Knott. On January 12, 1987, Joseph Wagner was found psychologically unacceptable after he was re-examined by Dr. Knott. On January 27, 1987, Dr. McCormac, another psychologist appointed by the commission, found Joseph Wagner acceptable but on January 27, 1987 Dr. McCormac changed his evaluation and found Joseph Wagner psychologically unacceptable. Dr. McCormac drew the same conclusions in regard to Laurence Wagner. As a result of the unacceptable psychological reviews, both plaintiffs were removed from the commission's eligibility list.

Plaintiffs appealed to the commission to reinstate their names onto the eligibility list. An oral hearing was held before the commission. After the hearing, the commission denied plaintiffs' request for reinstatement. Plaintiffs then filed their declaratory judgment action and their appeal in common pleas court.

Defendants assign eight errors on appeal. Plaintiffs assign one error on cross-appeal. Defendants' third and fifth assignments of error will be addressed first.

Defendants' third and fifth assignments of error follow:

"III. The trial court's orders enjoining the removal of the plaintiffs from the eligible list and reinstating them to the list were moot, the list having already expired as a matter of law."

"V. The trial court's order that the Wagners be enrolled in the police academy was an abuse of discretion."

Defendants' third and fifth assignments of error are meritorious.

Defendants argue, since the two-year period of this list's effectiveness had expired, the common pleas court erred when it ordered plaintiffs to be reinstated onto the same eligibility list, one and one-half months after the expiration date, from which they had been removed.

Actions become moot when resolution of the issues presented is purely academic and will have no practical effect on the legal relations between the parties. See Central Motors Corp. v. Pepper Pike (1983), 9 Ohio App.3d 18, 9 OBR 19, 457 N.E.2d 1178; In re Bartlett (1959), 108 Ohio App. 93, 9 O.O.2d 150, 161 N.E.2d 76; Culver v. Warren (1948), 84 Ohio App. 373, 39 O.O. 506, 83 N.E.2d 82; and Davies v. Columbia Gas & Elec. Corp. (1946), 47 Ohio Law Abs. 225, 70 N.E.2d 655. See, also, State v. Berndt (1987), 29 Ohio St.3d 3, 29 OBR 173, 504 N.E.2d 712.

A "controversy" exists for purposes of a declaratory judgment when there is a genuine dispute between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Burger Brewing Co. v. Liquor Control Comm. (1973), 34 Ohio St.2d 93, 63 O.O.2d 149, 296 N.E.2d 261.

In the case sub judice, a controversy arose when the plaintiffs were removed from the civil service eligibility list. This list had a two-year period of effectiveness as established by Civil Service Commission Rule 5.20. ² The 1985 patrol officer eligibility list on which the plaintiffs were originally ranked expired July 31, 1987. One month and a half after the list expired, on September 18, 1987, the common pleas court ordered plaintiffs reinstated onto the original list from which they had been removed.

The common pleas court's authority to grant plaintiffs relief, viz., returning plaintiffs' names to the list ended July 31, 1987 when the list expired. Simply stated, the subject matter of the court's order was moot when the court granted plaintiffs their requested relief, no live controversy existed between the parties in regard to the reinstatement of plaintiffs' names onto the expired eligibility list. There was no list. Since the list expired before the common pleas court rendered its judgment, placement of the plaintiffs' names onto the list would have no practical effect on the legal relations between the parties. Thus, the orders of the common pleas court reversing the commission's decision and granting plaintiffs' declaratory judgment were nullities.

Defendants also argue the common pleas court's order enrolling plaintiffs into the next class of the Cleveland Police Academy was an abuse of discretion since the Director of Public Safety of the city of Cleveland and not the Cleveland Civil Service Commission has the authority to select candidates to the police academy. Defendants' argument is persuasive.

The common pleas court's declaratory judgment order was an abuse of discretion because the court went beyond its judicial authority and interfered with the statutory and administrative power of the Public Safety Director to choose candidates from the eligibility list. As a result, the court usurped the authority of both the General Assembly to pass statutes governing administrative agencies and the commission to promulgate its own rules pursuant to legislative authority.

In the case sub judice, the common pleas court's remedial power was limited to the reinstatement of plaintiffs' names onto the eligibility list, provided the list was still viable. The common pleas court's actions were a usurpation of the General Assembly's authority since the administrative procedures were created by the General Assembly. There is no common-law basis for plaintiffs' administrative appeal which was strictly a statutory creation supplanted by administrative rulemaking. The common pleas court cannot usurp the power of the General Assembly. Thus, the common pleas court abused its discretion when it sought to usurp the rulemaking power of the commission and pursuant thereto the power of the Director of Public Safety of the city of Cleveland by placing defendants directly into the Cleveland Police Academy. Only the Director of Public Safety has the authority to select candidates to the police academy from the civil service commission's eligibility list. See Cleveland Codified Ordinance 135.01.

The common pleas court's authority was limited solely to reinstatement of the plaintiffs onto the eligibility list. However, this list had expired, thus mooting the controversy. The common pleas court's action in reinstating the plaintiffs to the eligibility list was a vain act and a nullity.

Accordingly, defendants' third and fifth assignments of error are well-taken and sustained.

Case dismissed as moot.

The remaining assignments of error will be addressed...