State ex rel. Grendell v. Davidson

[This opinion has been published in Ohio Official Reports at 

86 Ohio St.3d 629

.]




THE STATE OF OHIO EX REL. GRENDELL ET AL. v. DAVIDSON, SPEAKER OF THE
                                      HOUSE, ET AL.
           [Cite as State ex rel. Grendell v. Davidson, 

1999-Ohio-130

.]
Mandamus sought to compel respondents to include and pass a provision in
        Am.Sub.H.B. No. 283 appropriating $30,000 of general funds for the
        Geauga County Airport Authority—Complaint dismissed, when—
        Appropriate compliance with its own rules is for General Assembly to
        determine—State ex rel. Ohio Academy of Trial Lawyers v. Sheward,
        distinguished—Motion for sanctions against relators’ attorneys granted.
     (No. 99-1198—Submitted July 28, 1999—Decided September 28, 1999.)
                                      IN MANDAMUS.
                                  __________________
        {¶ 1} Pursuant to Section 7, Article II of the Ohio Constitution, the General
Assembly adopted joint rules, including Joint Rule 19, which provides that a
“committee of conference appointed to consider matters of difference between the
two houses upon any bill or joint or concurrent resolution may consider and include
in its report any amendments pertinent to the bill or joint or concurrent resolution,
provided such amendments relate exclusively to the original matters of difference
between the two houses.” (Emphasis added.)
        {¶ 2} The Ohio House of Representatives (“House”) passed a version of
Am.Sub.H.B. No. 283 that included a provision appropriating thirty thousand
dollars of general funds for the Geauga County Airport Authority (“airport”). The
Ohio Senate (“Senate”) passed a different version of Am.Sub.H.B. No. 283 that
also included a provision appropriating thirty thousand dollars of general funds for
the airport. The conference committee for Am.Sub.H.B. No. 283 considered and
deleted the airport funds provision even though the differing versions of the bill
                            SUPREME COURT OF OHIO




contained that provision. Allegedly, respondent E.J. Thomas, the Chairman of the
Joint Committee on Am.Sub.H.B. No. 283, stated that he deleted the airport funds
provision because relator State Representative Diane V. Grendell, whose district
includes Geauga County, voted against the bill. According to Representative
Grendell, Thomas advised her that if she wanted the thirty thousand dollars for the
airport, she had to tell Thomas that she was voting yes on the conference committee
report for Am.Sub.H.B. No. 283.
       {¶ 3} On June 28, 1999, both the House and Senate voted to approve the
conference committee report version of the bill, which did not include the airport
funds provision, and on June 30, respondents Jo Ann Davidson, Speaker of the
House, and Richard Finan, President of the Senate, signed the bill as approved by
the House and Senate and certified it to the Governor. The Governor signed the
bill, which became effective on July 1.
       {¶ 4} On the same date that the House and Senate approved the conference
committee version of the bill, relators, Representative Grendell and Timothy J.
Grendell, an attorney, filed this action for a writ of mandamus to compel Thomas
to include the airport funds provision in the conference committee report for
Am.Sub.H.B. No. 283, to direct the House and Senate to vote on the conference
committee report for Am.Sub.H.B. No. 283 with the airport funds provision, and to
order respondents Speaker Davidson and President Finan to certify Am.Sub.H.B.
No. 283 to the Governor with the airport funds provision. Respondents filed a
motion to dismiss and a motion for sanctions.
       {¶ 5} After respondents filed their motion to dismiss relators’ complaint,
relators filed a motion for leave to amend their complaint and an amended
complaint. In their amended complaint, relators named Gerald W. Phillips, an
attorney and Geauga County elector and resident, and Taxpayers Coalition, an Ohio
nonprofit corporation, as additional relators. Relators also named Governor Robert
Taft, State Auditor James Petro, State Treasurer Joseph Deters, Ohio Legislative



                                          2
                                January Term, 1999




Service Commission Director Robert Shapiro, the Ohio Legislative Service
Commission, Ohio House Clerk Laura P. Clemens, and Ohio Senate Clerk Matthew
T. Schuler, as additional respondents.        In their amended complaint, relators
Timothy J. Grendell and Phillips specified themselves as counsel for relators.
Relators raised new claims in their amended complaint challenging the
constitutionality of fourteen items or provisions added to Am.Sub.H.B. No. 283 by
the conference committee that were purportedly not previously considered or acted
upon by either the House or Senate and the constitutionality of Am.Sub.H.B. No.
283 insofar as it allegedly contains thirty-one separate nonappropriation subjects,
including subjects as varied as the confidentiality of legislative documents and
certified public accountant examination requirements. Respondents filed an answer
to the amended complaint and a motion for judgment on the pleadings.
       {¶ 6} This cause is now before the court on relators’ motion for leave to
amend, and on respondents’ motions to dismiss, for judgment on the pleadings, and
for sanctions.
                               __________________
       Grendell & Associates Co., L.P.A., and Timothy J. Grendell; Phillips & Co.,
L.P.A., and Gerald W. Phillips, for relators.
       Betty D. Montgomery, Attorney General, Judith L. French, Robert C. Maier
and Elizabeth S. Luper, Assistant Attorneys General, for respondents.
                               __________________
       Per Curiam.
                      Motion for Leave to Amend Complaint
       {¶ 7} Relators claim that pursuant to Civ.R. 15(A), because no responsive
pleading had been filed at the time that they filed their amended complaint, they
have an unrestricted right to amend their complaint as a matter of course.
S.Ct.Prac.R. X(2) provides that all original actions other than habeas corpus filed
in this court “shall proceed under the Ohio Rules of Civil Procedure, unless clearly




                                          3
                            SUPREME COURT OF OHIO




inapplicable.” State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections
(1997), 

80 Ohio St.3d 182, 185

, 

685 N.E.2d 507, 510

. Civ.R. 15(A) provides that
“[a] party may amend his pleading once as a matter of course at any time before a
responsive pleading is served * * *.” (Emphasis added.) Under the Rules of Civil
Procedure, a motion to dismiss is not a responsive pleading, and a party can amend
his or her complaint as a matter of course even after a motion to dismiss has been
filed. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 

65 Ohio St.3d 545, 549

, 

605 N.E.2d 378

, 382.
       {¶ 8} Hanson, however, was not an original action filed in this court, which
involves the application of the Supreme Court Rules of Practice. S.Ct.Prac.R. X(5),
entitled “Response to complaint; court action,” designates an answer, motion to
dismiss, or a motion for judgment on the pleadings (coupled with an answer) as the
appropriate responses for original actions other than habeas corpus filed here that
will prompt our S.Ct.Prac.R. X(5) determination. In effect, a motion to dismiss
constitutes a “responsive pleading” for purposes of the abbreviated pleading
schedule set forth in S.Ct.Prac.R. X(5), and, consequently, relators could not amend
their complaint as a matter of course pursuant to Civ.R. 15(A) after respondents
filed a motion to dismiss. Civ.R. 15(A) requires leave of court or written consent
of the adverse party to obtain amendment of a complaint after a responsive pleading
is served. Rockey v. 84 Lumber Co. (1993), 

66 Ohio St.3d 221, 224

, 

611 N.E.2d 789, 791

.
       {¶ 9} Nevertheless, relators alternatively request leave to amend their
complaint pursuant to the allowance of an amendment under Civ.R. 15(A)
following a responsive pleading (“Leave of court shall be freely given when justice
so requires”), and the supplemental pleading provision of Civ.R. 15(E) (“Upon
motion of a party the court may, upon reasonable notice and upon such terms as are
just, permit him to serve a supplemental pleading setting forth transactions or
occurrences or events which have happened since the date of the pleading sought



                                         4
                                January Term, 1999




to be supplemented.”). Given the general policy favoring liberal amendment of
pleadings under Civ.R. 15(A) and because relators’ additional claims challenge the
provisions of Am.Sub.H.B. No. 283, which had not been enacted at the time relators
filed their initial complaint, see Civ.R. 15(E), relators’ motion for leave to amend
has merit. See, e.g., Patterson v. V & M Auto Body (1992), 

63 Ohio St.3d 573, 575

,

589 N.E.2d 1306, 1308

; Perry v. Eagle-Picher Industries, Inc. (1990), 

52 Ohio St.3d 168, 170

, 

556 N.E.2d 484, 486-487

.
       {¶ 10} Based on the foregoing, we grant relators’ motion for leave to amend
their complaint.
                         S.Ct.Prac.R. X(5) Determination
       {¶ 11} S.Ct.Prac.R. X(5) provides that “[a]fter the time for filing an answer
to the complaint or motion to dismiss, the Supreme Court will either dismiss the
case or issue an alternative or a peremptory writ, if a writ has not already been
issued.” Under S.Ct.Prac.R. X(5), we must determine whether an alternative writ,
peremptory writ, or dismissal is appropriate. State ex rel. Weiss v. Hoover (1999),

84 Ohio St.3d 530, 531

, 

705 N.E.2d 1227, 1228

. Dismissal is appropriate if it
appears beyond doubt, after presuming the truth of all material factual allegations
and making all reasonable inferences in favor of the relators, that they are not
entitled to the requested extraordinary relief. State ex rel. Dist. 1199, Health Care
& Social Serv. Union, SEIU, AFL-CIO v. Lawrence Cty. Gen. Hosp. (1998), 

83 Ohio St.3d 351, 352

, 

699 N.E.2d 1281

, 1282.
       {¶ 12} Dismissal is warranted here for the following reasons. Relators
erroneously base their preeminent claim for extraordinary relief on the General
Assembly’s alleged failure to follow its own procedural rule by the conference
committee’s deletion of the airport funds provision that had been included in the
House and Senate versions of the bill and the conference committee’s addition of
fourteen items that had not previously been considered or acted upon by the House
or Senate.




                                         5
                             SUPREME COURT OF OHIO




       {¶ 13} In State ex rel. City Loan & Sav. Co. of Wapakoneta v. Moore
(1931), 

124 Ohio St. 256, at 258-259

, 

177 N.E. 910, at 910-911

, we held:
       “The rules of the General Assembly seem to provide that a motion to
reconsider should be filed within two days after the previous question is ordered in
each house. The two-day rule is a rule of the General Assembly, not prescribed by
the Constitution. Section 8 of Article II of the Constitution authorizes each house
to determine its own rules of proceeding. Sections 9 and 16 prescribe certain rules
which are mandatory, and a failure to observe them might be inquired into by the
courts, and if it is found that the Legislature has violated the constitutional
limitations it would be within the power of the court to declare the legislation
invalid. The provision for reconsideration is not part of the Constitution and is
therefore entirely within the control of the General Assembly. Having made the
rule, it should be regarded, but a failure to regard it is not the subject-matter of
judicial inquiry. It has been decided by the courts of last resort of many states, and
also by the United States Supreme Court, that a legislative act will not be declared
invalid for noncompliance with rules. United States v. Ballin [1892], 

144 U.S., 1

,

12 S.Ct., 507

, 

36 L.Ed., 321

; St. Louis & San Francisco Ry. Co. v. Gill [1891], 54
Ark., 101, 

15 S.W., 18

, 

11 L.R.A., 452

; Sweitzer [sic, Schweizer] v. Territory of
Oklahoma [1897], 

5 Okl., 297

, 

47 P., 1094

; State v. Brown [1890], 

33 S.C., 151

, 

11 S.E., 641

; In re Ryan [1891], 

80 Wis., 414

, 

50 N.W., 187

; McDonald v. State
[1891], 

80 Wis., 407

, 

50 N.W., 185

.” (Emphasis added.)
       {¶ 14} In other words, it is well settled that, in considering the validity of a
statute, courts will not inquire into whether the legislature complied with its own
rules in enacting the statute, as long as no constitutional provision is violated. See,
generally, Annotation, Power of Court to Pass upon Rules of Legislative Body
(1931), 

76 L.Ed. 967

; see, also, Reaves v. Jones (1974), 

257 Ark. 210, 213-214

,

515 S.W.2d 201, 203

, where the Supreme Court of Arkansas held that the state
legislature’s observance of its own joint rules is a matter entirely subject to



                                          6
                                   January Term, 1999




legislative control and discretion that is not reviewable by the judiciary. “ ‘[T]he
decisions are nearly unanimous in holding that an act cannot be declared invalid for
failure of a house to observe its own rules. Courts will not inquire whether such
rules have been observed in the passage of the act.’ ” Brown v. Hansen (C.A.3,
1992), 

973 F.2d 1118

, 1122, quoting Singer, Sutherland Statutory Construction (4
Ed.1985) 434, Section 7.04, now (5 Ed.1994) 566, Section 7.04; McDonald, 

80 Wis. at 412

, 

50 N.W. at 186

 (“We think no court has ever declared an act of the
legislature void for non-compliance with the rules of procedure made by itself, or
the respective branches thereof, and which it or they may change or suspend at
will.”).
           {¶ 15} Therefore, relators’ claims concerning the General Assembly’s
alleged failure to follow Joint Rule 19 are nonjusticiable because Section 7, Article
II of the Ohio Constitution, which provides that “[e]ach House [of the General
Assembly] shall determine its own rules of proceeding,” commits the issuance and
observance of procedural rules to the General Assembly. See, generally, Nixon v.
United States (1993), 

506 U.S. 224, 228

, 

113 S.Ct. 732, 735

, 

122 L.Ed.2d 1, 8-9

;
DeRolph v. State (1997), 

78 Ohio St.3d 193, 265-267

, 

677 N.E.2d 733, 783-784

.
A writ of mandamus will not issue to a legislative body or its officers to require the
performance of duties that are purely legislative in character and over which such
legislative bodies have exclusive control. Wapakoneta v. Helpling (1939), 

135 Ohio St. 98, 108

, 

13 O.O. 460, 464

, 

19 N.E.2d 772, 777

. The constitutional
principle of separation of powers protects the General Assembly from such
infringement. See, generally, State v. Hochhausler (1996), 

76 Ohio St.3d 455, 463

,

668 N.E.2d 457, 465-466

.
           {¶ 16} In addition, adoption of relators’ claims to compel the passage of the
airport funds provision would contravene the constitutional requirement that “[t]he
general assembly shall enact no law except by bill, and no bill shall be passed
without the concurrence of a majority of the members elected to each house.”




                                             7
                              SUPREME COURT OF OHIO




Section 15(A), Article II, Ohio Constitution. Relators’ contention that when the
House and Senate pass different versions of a bill, the nondiffering provisions
contained in the differing versions become law, is consequently meritless.
        {¶ 17} Relators next rely on Maloney v. Rhodes (1976), 

45 Ohio St.2d 319

,

74 O.O.2d 499

, 

345 N.E.2d 407

, to argue that the General Assembly’s alleged
failure to comply with Joint Rule 19 is justiciable because of the claimed
noncompliance with Section 15(E), Article II of the Ohio Constitution, which
provides that “[e]very bill which has passed both houses of the general assembly
shall be signed by the presiding officer of each house to certify that the procedural
requirements for passage have been met and shall be presented forthwith to the
governor for his approval.” (Emphasis added.) While we did state in Maloney that
the application of Section 15(E) is not confined to constitutional procedural
requirements, 

45 Ohio St.2d at 327

, 74 O.O.2d at 503-504, 

345 N.E.2d at 413

, we
limited our pertinent holding in that case to invalidating statutes that did not contain
the certification specified in Section 15(E). 

Id.

 at paragraph three of the syllabus.
        {¶ 18} Unlike the statutes we held unconstitutional in Maloney, there is no
allegation that the enacted laws challenged here failed to contain the required
Section 15(E) certification. Where a bill is certified by the presiding officers of
each house, the bill is constitutionally valid under Section 15(E). 

Id.

 at paragraph
three of the syllabus; see, also, State ex rel. Ohio AFL-CIO v. Voinovich (1994), 

69 Ohio St.3d 225, 245

, 

631 N.E.2d 582, 597

 (Douglas, J., concurring). Maloney is
thus inapposite.
        {¶ 19} Relators’ remaining claims challenge the alleged inclusion in
Am.Sub.H.B. No. 283 of fourteen provisions added by the conference committee,
which they contend violated the three-consideration rule of Section 15(C), Article
II of the Ohio Constitution, and the Act’s alleged inclusion of thirty-one
nonappropriation subjects, which they contend violated the one-subject rule of
Section 15(D), Article II of the Ohio Constitution and the right of referendum of



                                           8
                                January Term, 1999




Section 1, Article II of the Ohio Constitution. Regarding these claims, relators
request, in essence, relief in the form of a declaration that Am.Sub.H.B. No. 283 is
unconstitutional and a prohibitory injunction against the various respondents,
including Governor Taft, State Auditor Petro, State Treasurer Deters, and LSC
Director Shapiro, from taking any action with respect to various provisions of the
enacted laws.
       {¶ 20} In general, if the allegations of a complaint for a writ of mandamus
indicate that the real objects sought are a declaratory judgment and a prohibitory
injunction, the complaint does not state a cause of action in mandamus and must be
dismissed for want of jurisdiction. State ex rel. Youngstown v. Mahoning Cty. Bd.
of Elections (1995), 

72 Ohio St.3d 69, 70

, 

647 N.E.2d 769, 771

; State ex rel.
Governor v. Taft (1994), 

71 Ohio St.3d 1, 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

. Here, it is manifest that the true objects of relators’
remaining claims are a declaratory judgment that certain provisions of
Am.Sub.H.B. No. 283 are unconstitutional and a prohibitory injunction preventing
state officials from applying those provisions.
       {¶ 21} In addition, constitutional challenges to legislation are normally
considered in an action originating in a court of common pleas rather than an
extraordinary writ action filed here. See, e.g., Simmons-Harris v. Goff (1999), 

86 Ohio St.3d 1

, 

711 N.E.2d 203

 (challenge to School Voucher Program); Hoover v.
Franklin Cty. Bd. of Commrs. (1985), 

19 Ohio St.3d 1

, 19 OBR 1, 

482 N.E.2d 575

.
For example, we sua sponte dismissed a mandamus action challenging a newly
enacted statute prohibiting certain municipalities from issuing speeding citations
on interstate freeways as violative of the Uniformity Clause of the Ohio
Constitution, by holding that “an action for declaratory judgment is here an
adequate remedy at law.” State ex rel. Linndale v. Teske (1995), 

74 Ohio St.3d 9

                             SUPREME COURT OF OHIO




1415, 

655 N.E.2d 736

. Four years later, in a discretionary appeal involving the
same municipality, we held that the statute was unconstitutional. Linndale v. State
(1999), 

85 Ohio St.3d 52

, 

706 N.E.2d 1227

.
       {¶ 22} Moreover, this case does not involve a public right. Rather, it simply
encompasses the inner workings of the General Assembly; appropriate compliance
with its own rules is a matter for the General Assembly to determine. This case is
thus distinguishable from State ex rel. Ohio Academy of Trial Lawyers v. Sheward
(1999), 

86 Ohio St.3d 451

, 

715 N.E.2d 1062

.
       {¶ 23} Based on the foregoing, we apply the general rule prohibiting
consideration of relators’ remaining constitutional challenges to Am.Sub.H.B. No.
283 here. Youngstown, Governor, and Walker. We deem it both unsupportable and
inadvisable to address the merits of relators’ challenges that purport to invoke our
constitutionally conferred original jurisdiction to consider the constitutionality of
an enactment of the General Assembly in a proceeding, which is, in reality, nothing
more than an action in declaratory judgment and prohibitory injunction.
       {¶ 24} Therefore, even when construing the material factual allegations of
relators’ amended complaint most strongly in their favor, they cannot establish that
they are entitled to the requested extraordinary relief. Consequently, we grant
respondents’ motion and dismiss this cause.
                               Motion for Sanctions
       {¶ 25} Respondents request sanctions against Timothy J. Grendell and
Gerald W. Phillips, both relators and attorneys for the remaining relators. Under
S.Ct.Prac.R. XIV(5), “[i]f the Supreme Court, on motion or on its own initiative,
determines that an appeal or other action is frivolous or is prosecuted for delay,
harassment, or any other improper purpose, it may impose, on the person who
signed the appeal or action, a represented party, or both, appropriate sanctions,
including an award to the opposing party of reasonable expenses, reasonable
attorney fees, costs or double costs, or any other sanction considered just.”



                                         10
                                January Term, 1999




(Emphasis added.)
       {¶ 26} Sanctions are warranted here. For the reasons previously discussed,
this action is frivolous insofar as relators’ counsel relied on the General Assembly’s
joint rules because the action is not reasonably well grounded in fact or warranted
by existing law or a good-faith argument for the extension, modification, or reversal
of existing law. S.Ct.Prac.R. XIV(5). Further, as respondents contend, harassment
is the only apparent rationale for relators’ attorneys to erroneously allege that
Thomas’s actions constitute the criminal offenses of retaliation, intimidation, and
coercion. Finally, these same attorneys recently filed a meritless extraordinary writ
case in which we emphasized their “unjustified delaying tactics” and “acts of
gamesmanship.” State ex rel. The Ryant Commt. v. Lorain Cty. Bd. of Elections
(1999), 

86 Ohio St.3d 107, 113

, 

712 N.E.2d 696, 701

.
       {¶ 27} Therefore, we grant respondents’ motion for sanctions against
relators’ attorneys, Timothy J. Grendell and Phillips, pursuant to S.Ct.Prac.R.
XIV(5), and order respondents to submit a detailed bill and documentation of the
expenses and approximate amount of compensation and fringe benefits, if any, of
their counsel that have been or will be paid by the state in connection with the legal
services rendered in defending against the frivolous claims raised by relators. Cf.
R.C. 2323.51(A)(4)(a).
                                                                    Cause dismissed
                                                  and motion for sanctions granted.
       MOYER, C.J., F.E. SWEENEY and COOK, JJ., concur.
       DOUGLAS, J., concurs in judgment only.
       RESNICK and PFEIFER, JJ., concur in part and dissent in part.
       LUNDBERG STRATTON, J., concurs in part and dissents in part.
                               __________________
       PFEIFER, J., concurring in part and dissenting in part.
       {¶ 28} I concur because relators’ claims do not rise to the necessary level to




                                         11
                                SUPREME COURT OF OHIO




merit the consideration of an extraordinary writ by this court. See State ex rel. Ohio
Academy of Trial Lawyers v. Sheward (1999), 

86 Ohio St.3d 451, 514-516

, 

715 N.E.2d 1062, 1111-1112

 (Pfeifer, J., concurring).         The alleged constitutional
violations are not sweeping or systemic, and therefore do not prompt this court, in
its role as the administrator of justice in this state, to act immediately. I therefore
concur in part with the majority.
       {¶ 29} I do not find, however, that relators’ claims were frivolous. The
amended complaint alleged numerous constitutional violations, including
violations of the three-day rule contained in Section 15(C), Article II of the Ohio
Constitution. The rule exists to inform citizens about the activity of the General
Assembly and to afford citizens an opportunity to be heard. In awarding sanctions,
I believe that the majority gives that rule and the single-subject rule short shrift. I
would not have awarded sanctions, and accordingly dissent in part.
       RESNICK, J., concurs in the foregoing opinion.
                                 __________________
       LUNDBERG STRATTON, J., concurring in part and dissenting in part.
       {¶ 30} I concur in the majority’s opinion, except that I would not award
attorney fees in this matter.




                                          12