Werden v. City of Milford

• Decision Date: 06 March 1998
• Docket Number: No. 98CV000028,98CV000028
• Citation: 698 N.E.2d 526,91 Ohio Misc.2d 215
• Parties: WERDEN v. CITY OF MILFORD. *
• Court: Ohio Court of Common Pleas

Page 215

91 Ohio Misc.2d 215

698 N.E.2d 526

WERDEN v. CITY OF MILFORD. ^*

No. 98CV000028.

Court of Common Pleas of Ohio,

Clermont County.

Decided March 6, 1998.

Clayton D. Werden, III, Blue Ash, pro se.

Michael Minniear, Milford, for defendant.

ROBERT P. RINGLAND, Judge.

This matter came before the court on plaintiff's petition for a writ of mandamus against the city of Milford. Evidence and argument were adduced, and the matter was taken under advisement.

On January 13, 1998, plaintiff filed a petition for writ of mandamus in this court. In his petition, he asked that the court compel the city of Milford to bring all its traffic control devices to the standards set out by the Ohio Manual of Uniform Traffic Control Devices ("OMUTCD"). He alleged that the city had a clear legal duty to conform to the OMUTCD in the erection, placement, maintenance, and replacement of all traffic control devices. He further alleged that he had a clear legal right for the relief requested, in that he was a licensed business person in Ohio doing business in Clermont County. Finally, he alleged that he had no adequate remedy at law.

Defendant was served and filed a motion to dismiss and to strike pleading. Defendant argued that plaintiff's petition was not signed, as required by Civ.R. 11. Defendant further argued that plaintiff's petition should be dismissed because plaintiff had adequate remedies at law, and that plaintiff's petition was actually a request for injunction.

Mandamus is a writ, issued in the name of the state to an inferior tribunal, commanding the performance of an act that the law specially enjoins as a duty resulting from an office, trust, or station. R.C. 2731.01. Before a writ of mandamus can be issued, the petitioner must show a clear legal right to the relief sought, that the respondent has a clear legal duty to perform the act, and that no other remedy exists at law. State ex rel. Willbond v. Oberlin School Dist. (1994), 94 Ohio App.3d 419, 640 N.E.2d 1179; State ex rel. Williams v. Canton (1977), 51 Ohio St.2d 81, 5 O.O.3d 50, 364 N.E.2d 1161. See, also, Bowling Green State Univ. v. Williamson (1988), 39 Ohio St.3d 141, 529 N.E.2d 1371. While the burden is on the petitioner to show that the requirements for mandamus are met, the petitioner is not required to prove his case at the pleading stage, but need only give reasonable notice of his claim. State ex rel. Harris v. Toledo (1995), 74 Ohio St.3d 36, 656 N.E.2d 334.

The procedure for issuing writs of mandamus is governed by the Civil Rules. State ex rel. Millington v. Weir (1978), 60 Ohio App.2d 348, 14 O.O.3d 310, 397 N.E.2d 770. See, also, State ex rel. Morganthaler v. Crites (1891), 48 Ohio St. 142, 26 N.E. 1052 (holding that mandamus pleadings should be the same as any other civil action). Once the petition has been filed, the court may elect to issue a peremptory writ or an alternative writ. When the right to require the performance of an act is clear, and it is apparent that no valid excuse can be given for not doing it, the court should allow a peremptory writ of mandamus. R.C. 2731.06. In all other cases, the court must first issue an alternative writ of mandamus. Id. A peremptory writ orders the respondent to do the act required, while the alternative writ requires the respondent to do the act required or to show cause why the act is not performed. R.C. 2731.07.

In his complaint, plaintiff claims that he is entitled to relief because he is a licensed businessperson doing business in Ohio. Where the question is one of public right or enforcement of public duty, the people of the state are regarded as a real party in interest, and it is sufficient that the relator shows interest as a citizen or taxpayer. State ex rel. Nimon v. Springdale (1966), 6 Ohio St.2d 1, 35 O.O.2d 1, 215 N.E.2d 592; State ex rel. Spencer v. E. Liverpool Planning Comm. (1997), 80 Ohio St.3d 297, 685 N.E.2d 1251.

Plaintiff also argues that he has no adequate remedy at law. There are no enforcement procedures set out by which a municipality can be required to conform to OMUTCD. Therefore, the court can issue a writ of mandamus ordering a municipality to comply with traffic laws. State ex rel. Ohio Motorists Assn. v. Masten (1982), 8 Ohio App.3d 123, 127, 8 OBR 179, 182-183, 456 N.E.2d 567, 571-572.

Plaintiff further claims that defendant city has a legal duty to comply with the OMUTCD. This duty is clearly set out by statute. R.C. 4511.11. Plaintiff states that defendant has breached that duty by installing traffic signs too low, by not adequately maintaining traffic signs, by installing or allowing improper ten m.p.h. and fifteen m.p.h. signs, by having inadequate school speed limit signs, and by maintaining only one traffic light at certain intersections with no pedestrian signals.

Not all portions of the OMUTCD are mandatory. Gregory v. Ohio Dept. of Transp. (1995), 107 Ohio App.3d 30, 667 N.E.2d 1009. The verb "shall" is to be considered mandatory when used in the OMUTCD, the verb "should" is merely advisory, and the verb "may" should be read as permissive. OMUTCD 1E.

The OMUTCD mandates that the clearance to the bottom of traffic signs shall be at least seven feet in business, commercial, and residential districts. OMUTCD 2E-4. Therefore, defendant has a clear legal duty to install traffic signs with at least seven feet of clearance. Defendant respondent acknowledges that low signs have been corrected since the filing, but a few remain uncorrected. On adequate maintenance, the OMUTCD states that "[t]o assure adequate maintenance, a suitable schedule for inspection, cleaning and replacement of signs should be established." OMUTCD 2F-1. This regulation is only advisory, and a writ cannot issue forcing defendant's compliance. Therefore, this court cannot order defendant to create a schedule for the inspection and cleaning of signs. Further, the OMUTCD requires that "[a]ll traffic signs should be kept in proper position, clean and legible at all times." Again, this section is advisory, so a writ cannot issue for noncompliance.

Plaintiff further complains that defendant has posted speed limit signs of ten m.p.h. and fifteen m.p.h., which are below the speed allowed by law. Speed limits are addressed in R.C. 4511.21. While no lawful speed limit of ten m.p.h. is given, and the speed of fifteen m.p.h. is given as prima facie lawful only in alleyways, the statute allows local authorities to decrease the speed limit by requesting that the Director of Transportation declare a lower reasonable and safe prima facie speed. R.C. 4511.21(I)(1). No limitations on the director's power are given in the statute. Therefore, plaintiff has shown that defendant has a clear legal duty to remove the speed limit signs in question, unless defendant can show that the director has declared a lower prima facie safe speed limit at the location.

Plaintiff also complains about defendant's erection of school speed limit signs. He argues that defendant has failed to include a sign reading "During Restricted Hours" underneath the posted speed limit of twenty m.p.h. "In school zones...