No. 89-1739 | Ohio | Mar 28, 1990
We find that relators have demonstrated the prerequisites for issuance of a writ of mandamus
For some reason, CMHA has re
CMHA does not deny that Cleveland Heights is the city with the second highest number of housing units owned or managed by CMHA. CMHA and East Cleveland have offered no excuse except that East Cleveland disagrees with the way the units are counted and that CMHA does not want to swear in the Cleveland Heights appointee because East Cleveland may file a lawsuit to regain its power to appoint a representative to the CMHA board. Thus, we have no factual issue since the means by which the units are to be counted has already been finally litigated by all parties, which is clear from the fact that the 1986 judgment has never been appealed. By letter dated September 21,1988, CMHA has determined that the count is: East Cleveland, one hundred eighty-four units, Cleveland Heights, one hundred eighty-nine.
By directing CMHA to recognize the appointee of Cleveland Heights, we require only that CMHA perform a ministerial act. State, ex rel. Fenske, v. McGovern (1984), 11 Ohio St. 3d 129" court="Ohio" date_filed="1984-06-13" href="https://app.midpage.ai/document/state-ex-rel-fenske-v-mcgovern-6758412?utm_source=webapp" opinion_id="6758412">11 Ohio St. 3d 129, 11 OBR 426, 464 N.E.2d 525" court="Ohio" date_filed="1984-06-13" href="https://app.midpage.ai/document/state-ex-rel-fenske-v-mcgovern-6758412?utm_source=webapp" opinion_id="6758412">464 N.E. 2d 525. There is no discretion in CMHA that would negate the existence of a clear duty. CMHA cannot avoid its duty merely because a disagreement exists.
The fact that there is a person currently serving on the CMHA board in the contested position does not make this a quo warranto action (as is argued by CMHA) in which a court is asked to remove a person from office who is illegally seated. It is clear that the appointee of East Cleveland is merely a holdover due to CMHA’s refusal to make a decision without a court order. According to the holdover statute, R.C. 3.01, the person holding over retains that position only “until his successor is elected or appointed and qualified, unless otherwise provided in the constitution or laws of this state.”
The availability of a declaratory judgment action does not bar the issuance of a writ of mandamus where the relator otherwise makes a proper showing. State, ex rel. Dollison, v. Reddy (1978), 55 Ohio St. 2d 59" court="Ohio" date_filed="1978-07-12" href="https://app.midpage.ai/document/state-ex-rel-dollison-v-reddy-6756358?utm_source=webapp" opinion_id="6756358">55 Ohio St. 2d 59, 9 O.O. 3d 67, 378 N.E.2d 150" court="Ohio" date_filed="1978-07-12" href="https://app.midpage.ai/document/state-ex-rel-dollison-v-reddy-6756358?utm_source=webapp" opinion_id="6756358">378 N.E. 2d 150.
According to R.C. 2731.06, “[w]hen 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, a court, in the first instance, may allow a peremptory mandamus. * * *”
The right of Cleveland Heights to appoint Janice M. Jones to the CMHA board is clear and CMHA offers no valid excuse not to accept her appointment.
Accordingly, the motions to dismiss this complaint are overruled. We allow a peremptory writ of mandamus in the first instance directing
Writ allowed.
The prerequisites are: relator must show a clear right to relief, a clear duty of respondent to perform the requested act, and the absence of a plain and adequate remedy in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St. 3d 28" court="Ohio" date_filed="1983-07-13" href="https://app.midpage.ai/document/state-ex-rel-berger-v-mcmonagle-6758031?utm_source=webapp" opinion_id="6758031">6 Ohio St. 3d 28, 6 OBR 50, 451 N.E.2d 225" court="Ohio" date_filed="1983-07-13" href="https://app.midpage.ai/document/state-ex-rel-berger-v-mcmonagle-6758031?utm_source=webapp" opinion_id="6758031">451 N.E. 2d 225.