State ex rel. Ohio Academy of Trial Lawyers v. Sheward

[This opinion has been published in Ohio Official Reports at 

81 Ohio St.3d 1226

.]




 THE STATE EX REL. OHIO ACADEMY OF TRIAL LAWYERS ET AL. v. SHEWARD,
                                      JUDGE, ET AL.
           [Cite as State ex rel. Ohio Academy of Trial Lawyers v. Sheward,
                                     

1998-Ohio-276

.]
Prohibition and mandamus to enjoin and prohibit respondents from implementing
        provisions of Am.Sub.H.B. No. 350—Alternative writ granted.
   (No. 97-2419—Submitted December 9, 1997—Decided February 25, 1998.)
                                     IN PROHIBITION.
                                     IN MANDAMUS.
                                  __________________
        Don C. Iler and Robert S. Peck, for relators Ohio Academy of Trial Lawyers
and Richard Mason.
        Stewart R. Jaffy and Marc Jaffy, for relators Ohio AFL-CIO and William
A. Burga.
        Ron O’Brien, Franklin County Prosecuting Attorney, for respondents Judge
Richard S. Sheward and Judge Dale A. Crawford.
                                  __________________
        {¶ 1} Sua sponte, alternative writ granted.
        DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
        MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
                                  __________________
        COOK, J., dissenting.
        {¶ 2} Because it is obvious from the face of the complaint that this court
does not have jurisdiction over relators’ claims in mandamus or prohibition, I
dissent.
                              SUPREME COURT OF OHIO




        {¶ 3} Relators, Ohio Academy of Trial Lawyers, Ohio AFL-CIO, and two
individual Ohio citizens and taxpayers, filed this action for extraordinary relief
against six common pleas court judges in their official capacities and as
representatives of similarly situated Ohio trial court judges. Relators claim that
Am.Sub.H.B. No. 350 is unconstitutional because, among other things, it conflicts
with rules promulgated by the court, and further violates the one-subject rule, right
to a jury trial, prohibition on damage caps for wrongful death, right to a remedy,
due process, equal protection, prohibition on special privileges, and prohibition
against retroactive laws.
        {¶ 4} Relators request (1) a writ of prohibition preventing respondents from
exercising jurisdiction to implement Am.Sub.H.B. No. 350, (2) a writ of mandamus
to compel respondents to apply prior law notwithstanding conflicting provisions of
Am.Sub.H.B. No. 350, and (3) an “injunction permanently declaring, pursuant to
ancillary claims made in this Complaint, that Am.Sub.H.B. [No.] 350 violates the
Constitution of the State of Ohio and is thereby to be treated as null and void and
enjoining its implementation by Respondents and those similarly situated.”
Relators filed motions for certification of a respondent class to include all Ohio trial
court judges who are affected by Am.Sub.H.B. No. 350 and maintenance as a
respondent class action.
                                    MANDAMUS
        {¶ 5} Relators initially claim that they are entitled to a writ of mandamus.
In order to be entitled to a writ of mandamus, the relator must establish a clear legal
right to the relief prayed for, that the respondent has a clear legal duty to perform
the requested act, and that relator has no plain and adequate remedy at law. State
ex rel. Seikbert v. Wilkinson (1994), 

69 Ohio St.3d 489, 490

, 

633 N.E.2d 1128, 1129

.




                                           2
                                January Term, 1998




THIS COURT DOES NOT HAVE JURISDICTION TO AWARD THE RELIEF
                            THAT RELATORS SEEK
       {¶ 6} The constitutionality of a statute, in certain circumstances, may be
challenged by mandamus. State ex rel. Purdy v. Clermont Cty. Bd. of Elections
(1997), 

77 Ohio St.3d 338, 341

, 

673 N.E.2d 1351, 1354

; State ex rel. Brown v.
Summit Cty. Bd. of Elections (1989), 

46 Ohio St.3d 166

, 

545 N.E.2d 1256

; State ex
rel. Michaels v. Morse (1956), 

165 Ohio St. 599

, 

60 O.O. 531

, 

138 N.E.2d 660

.
However, “[t]he function of mandamus is to compel the performance of a present
existing duty as to which there is a default. It is not granted to take effect
prospectively, and it contemplates the performance of an act which is incumbent
on the respondent when the application of the writ is made.” (Emphasis added.)
State ex rel. Willis v. Sheboy (1983), 

6 Ohio St.3d 167

, 6 OBR 225, 

451 N.E.2d 1200

, paragraph two of the syllabus. Where the allegations in a complaint for
mandamus indicate that the real objects sought are a declaratory judgment and an
injunction, the complaint does not state a cause of action in mandamus and must be
dismissed. Purdy; State ex rel. Governor v. Taft (1994), 

71 Ohio St.3d 1, 2-3

, 

640 N.E.2d 1136, 1137-1138

; State ex rel. Ohio Mechanical Contracting Industry, Inc.
v. Cleveland (1992), 

65 Ohio St.3d 1210

, 

605 N.E.2d 386

; State ex rel. Walker v.
Bowling Green (1994), 

69 Ohio St.3d 391, 392

, 

632 N.E.2d 904, 905

. “[W]here a
petition which is labeled an ‘action in mandamus’ but its allegations, in effect, seek
an injunctive remedy to restrain and enjoin the respondents rather than to compel
respondents to perform a clear legal duty, such a petition does not state a cause of
action in mandamus but states a cause of action in injunction, and, since this court
does not have original jurisdiction in injunction [see Section 2(B), Article IV, Ohio
Constitution], such a petition must be dismissed * * *.” (Emphasis sic.) State ex
rel. Pressley v. Indus. Comm. (1967), 

11 Ohio St.2d 141, 150

, 

40 O.O.2d 141, 147

,

228 N.E.2d 631, 640

.




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                               SUPREME COURT OF OHIO




        {¶ 7} Here, the objects of relators’ action are a declaratory judgment that
Am.Sub.H.B. No. 350 is unconstitutional and an injunction preventing Ohio judges
from applying Am.Sub.H.B. No. 350. This is evident from relators’ prayer for
relief, in which they specifically request declaratory and injunctive relief, as well
as relators’ request to serve the Attorney General with a copy of their complaint
pursuant to R.C. 2721.12, which applies to declaratory judgment actions.
Accordingly, mandamus is the wrong vehicle, and we are the wrong court to
initially entertain an action for the relief that relators seek.
        {¶ 8} As pointed out in Justice Douglas’s dissent in State ex rel. Governor
v. Taft, 

71 Ohio St.3d at 4

, 

640 N.E.2d at 1138-1139

, our court has struggled with
consistent application of this rule.       This court has, on occasion, entertained
mandamus actions wherein the relators sought to restrain or enjoin governmental
entities from giving effect to provisions of legislative acts based on constitutional
challenges. See State ex rel. Ohio AFL-CIO v. Voinovich (1994), 

69 Ohio St.3d 225

, 

631 N.E.2d 582

. Cases such as Voinovich, however, have been aberrant,
extrajurisdictional exercises. That a court exceeded its jurisdictional reach in a past
case is not legitimate authority for accepting another invitation to do so and we
should refrain from further perpetuating these mistakes in order to extend our
jurisdictional reach.
                                    PROHIBITION
        {¶ 9} Relators additionally claim that they are entitled to a writ of
prohibition. In order to obtain a writ of prohibition a relator must establish (1) the
respondent is about to exercise judicial or quasi-judicial power, (2) the exercise of
that power is unauthorized by law, and (3) denying the writ will result in injury for
which no other adequate remedy exists in the ordinary course of law. State ex rel.
Koren v. Grogan (1994), 

68 Ohio St.3d 590, 592

, 

629 N.E.2d 446, 448

.




                                            4
                                January Term, 1998




        PROHIBITION IS NOT AVAILABLE TO BLOCK A COURT’S
 APPLICATION OF A LEGISLATIVE ACTION ON GROUNDS THAT THE
              LEGISLATIVE ACTION IS UNCONSTITUTIONAL
       {¶ 10} “A writ of prohibition will issue where there is a patent and
unambiguous restriction on the jurisdiction of the court which clearly places the
dispute outside the court's jurisdiction.” State ex rel. Lipinski v. Cuyahoga Cty.
Common Pleas Court, Probate Div. (1995), 

74 Ohio St.3d 19, 22

, 

655 N.E.2d 1303

,
1306, citing Koren, 

68 Ohio St.3d at 593

, 

629 N.E.2d at 449

.                        “‘
“Prohibition will not be granted, in advance of trial, to test constitutionality, where
the inferior court has jurisdiction independent of the statute in question, and may
itself determine jurisdiction, and its decision is then subject to review upon appeal.”
* * * [T]he unconstitutionality of a statute does not deprive a court of the initial
jurisdiction to proceed according to its terms [and parties have] other remedies in
the ordinary course of the law and by way of appeal.’ ” Christensen v. Bd. of
Commrs. on Grievances & Discipline (1991), 

61 Ohio St.3d 534, 536-537

, 

575 N.E.2d 790, 792

, quoting State ex rel. Crebs v. Wayne Cty. Court of Common Pleas
(1974), 

38 Ohio St.2d 51, 51-52

, 

67 O.O.2d 61

, 

309 N.E.2d 926, 927

. Stated
another way, “‘Where a court has full and complete jurisdiction of the subject-
matter of an action therein pending, a writ of prohibition will not be awarded to
prevent an anticipated erroneous judgment. An adequate remedy is available by
proceeding in error.’ ” State ex rel. Caley v. Tax Comm. (1934), 

129 Ohio St. 83, 88

, 

1 O.O. 415, 417-418

, 

193 N.E. 751, 753

, quoting State ex rel. Carmody v.
Justice (1926), 

114 Ohio St. 94

, 

150 N.E. 430

.
       {¶ 11} In this case, the respondent judges unquestionably have subject-
matter jurisdiction over the anticipated disputes contemplated in the relators’
complaint. See Section 4, Article IV, Ohio Constitution; R.C. Chapter 2721; R.C.
2305.01. Accordingly, prohibition is unavailable to block their application of the
statutes in question.




                                          5
                                SUPREME COURT OF OHIO




                  AVAILABILITY OF AN ADEQUATE REMEDY
          {¶ 12} As previously discussed, neither prohibition nor mandamus is
available where a relator possesses an adequate remedy in the ordinary course of
law. State ex rel. Hunter v. Certain Judges of the Akron Mun. Court (1994), 

71 Ohio St.3d 45, 46

, 

641 N.E.2d 722, 723

. In addition to the other failings of the
complaint, relators cite only the time and expense involved in following the
ordinary course of law as inadequacies of that remedy. Without more, this court
has consistently rejected these inconveniences as insufficient to allow relators to
avoid their ordinary remedies at law through issuance of an extraordinary writ. See,
e.g., State ex rel. Dannaher v. Crawford (1997), 

78 Ohio St.3d 391, 395-396

, 

678 N.E.2d 549, 553-554

; State ex rel. Willacy v. Smith (1997), 

78 Ohio St.3d 47, 50

,

676 N.E.2d 109, 112

.
                                     CONCLUSION
          {¶ 13} At this juncture, I believe that the proper course for this court to take
would be to dismiss the complaint based on its failure to present issues that are
actionable under our mandamus or prohibition jurisdiction. Apparently, a majority
of the court reasons otherwise, issuing an alternative writ. The granting of an
alternative writ, however, does not put to rest the jurisdictional issues addressed
here or the standing issues raised in the brief response filed by Judges Sheward and
Crawford and later-filed motions to dismiss that have not yet been considered by
the court. By granting an alternative writ, the majority has determined only that the
complaint may have merit and has authorized further briefing. See State ex rel.
Morley v. Lordi (1995), 

72 Ohio St.3d 510, 514

, 

651 N.E.2d 937, 941

. With the
benefit of both parties’ full briefing on these issues, perhaps the court will right
itself.
          MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
dissenting opinion.
                                  __________________




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