STATE OF OHIO, EX REL., CITY OF EAST CLEVELAND, OHIO, ET AL. v. GARY NORTON, MAYOR, ET AL.
No. 98772
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 27, 2013
[Cite as State ex rel. E. Cleveland v. Norton, 2013-Ohio-3723.]
LARRY A. JONES, SR., J.
RELATORS
vs.
RESPONDENTS
JUDGMENT: WRIT DENIED
Writ of Mandamus Motion Nos. 464138 and 464139 Order No. 466691
RELEASE DATE: August 27, 2013
For city of East Cleveland
Darryl E. Pittman Pittman Alexander Attorneys 2490 Lee Boulevard Suite 115 Cleveland Hts., Ohio 44118
Michael Aten Westgate Towers, Suite 501 20525 Center Ridge Road Rocky River, Ohio 44116
For Mansell Baker and Nathaniel Martin
Michael Aten Westgate Towers, Suite 501 20525 Center Ridge Road Rocky River, Ohio 44116
For Dr. Joy Jordan, Chantelle Lewis, and Barbara Thomas
Darryl E. Pittman Pittman Alexander Attorneys 2490 Lee Boulevard Suite 115 Cleveland Hts., Ohio 44118
For Gary Norton, Mayor, and Irene Crowell, Director of Finance
Hilary S. Taylor Weston Hurd, L.L.P. The Tower at Erieview 1301 East 9th Street, Suite 1900 Cleveland, Ohio 44114
For Ronald K. Riley, Director of Law
Shawn W. Maestle Weston Hurd, L.L.P. The Tower at Erieview 1301 East 9th Street, Suite 1900 Cleveland, Ohio 44114
STANDARDS FOR ISSUING A WRIT OF MANDAMUS
{2} In order for this court to issue a writ of mandamus, the relators are required to establish: (1) the relators possess a clear legal right to the requested relief, (2) the respondents possess a clear duty to perform the requested relief and (3) there must exist no other adequate remedy in the ordinary course of the law. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987). Furthermore, if the relators possessed an adequate remedy, regardless of whether it was used, relief in mandamus is precluded.
{3} In addition to the basic requirements that must be established by the relators, the following principles of law guide this court‘s determination as to whether a writ of mandamus should be issued on behalf of the relators. Mandamus lies only to enforce the performance of a ministerial duty or act. A ministerial duty or act has been defined as one that a person performs in a given state of facts in a prescribed manner in the obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act being done. State ex rel. Neal, Jr. v. Moyer, 3d Dist. Allen No. 1-84-44, 1985 Ohio App. LEXIS 5380 (Jan. 9, 1985). The object of a writ of mandamus is to compel an officer to do a specific act required by law, and not to compel the general enforcement of the mandate of the law.
* * * [A]nd while a court might well hold that the general course of conduct contended for by the relator, and which he seeks to have the plaintiff commanded to follow, is the course of conduct which the law requires, and, therefore, the course which the [respondent] is in duty bound to pursue, yet a court will not employ the extraordinary writ of mandamus to supplant every other form of remedy, for if it be employed to compel the observance of law generally, the court would thereby constitute itself the public conscience, and all others would become its agents through which the court would, within the law, exercise its will. The function of a court is to render judgment in actual controversies between adverse litigants, to command or restrain specific acts affecting existing rights of parties before the court, as distinguished from declaratory judgments affecting possible rights and potential controversies.
State ex rel. Cullen v. Toledo, 105 Ohio St. 545, 138 N.E. 58 (1922). See also State ex rel. Keyser v. Commrs. of Wayne Cty., 57 Ohio St. 86, 48 N.E. 136 (1897).
{4} It must also be noted that if the allegation of a complaint for a writ of mandamus demonstrates that the real object sought is a declaratory judgment and a prohibitory injunction, the complaint does not state a cause of action in mandamus and must be dismissed for lack of jurisdiction. State ex rel. Esarco v. Youngstown City Council, 116 Ohio St.3d 131, 2007-Ohio-5699, 876 N.E.2d 953; State ex rel. Obojski v. Perciak, 113 Ohio St.3d 486, 2007-Ohio-2453, 866 N.E.2d 1070, quoting State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 1999-Ohio-130, 716 N.E.2d 704.
Mandamus will not issue to require a public officer to prospectively observe the law. State ex rel. Home Care Pharmacy, Inc. v. Creasy, 67 Ohio St.2d 342, 423 N.E.2d 482 (1981); State ex rel. Kay v. Fuerst, 156 Ohio St 188, 101 N.E. 730 (1951). Finally, this court possesses the sound discretion to deny or grant a writ of mandamus. In State ex rel. Pressley v. Industrial Comm. of Ohio (1967), supra, paragraph seven of the syllabus, the Supreme Court of Ohio held that “in considering the allowance or denial of the writ of mandamus on the merits, [the court] will exercise sound, legal and judicial discretion based upon all the facts and circumstances in the individual case and the justice to be done.” The Supreme Court of Ohio expounded that in exercising the discretion to deny or grant a writ of
Pressley at 161-162. See also State ex rel. Bennett v. Lime, 55 Ohio St.2d 62, 378 N.E.2d 152 (1978); State ex rel. Dollison v. Reddy, 55 Ohio St.2d 59, 378 N.E.2d 150 (1978), State ex rel. Mettler v. Stratton et al., 139 Ohio St. 86, 38 N.E.2d 393 (1941).
RELATORS’ CLAIMS FOR MANDAMUS
{5} In this case, the relators have presented nine claims that form the basis of their request for a writ of mandamus. Specifically, the relators argue that the respondents possess the duty to fulfill each of the following nine claims:
1) inventory of supplies and materials: “On January 17, 2012, the Council passed Resolution 107-11, directing Respondent the Director of Finance (then Jack Johnson, now Irene Crowell) to ‘submit to Council, on a quarterly basis, a detailed inventory of supplies and material on hand and the value thereof at the date of preparation.‘”
2) monthly balance sheets: “On March 7, 2012, the Council passed Resolution 102-11, directing Respondent the Director of Finance (then Jack
3) financial information: “On May 1, 2012, City Council passed Resolution 47-12 * * * requires the administration to provide * * * information and documention, inter alia: a. a sum of $3.2 million that was ‘located’ or ‘found’ by the administration just prior to the City Council‘s consideration of the 2012 appropriation ordinance in late March, 2012; and b. the Victory Money Market Mutual Fund established in 2005 from Local Government fund notes and which funds are restricted until 2013.”
4) failure to attend meetings: “To date, the Finance Director has failed or refused to participate in the Council‘s Finance Committee meetings and Audit Committee meetings and to provide information requested by those committees.”
5) failure to provide financial information: “On January 17, 2012, City Council passed Resolution 108-11, * * * requires the Finance Director to provide City Council with all super Blanket purchase orders in place during the fiscal year that terminated or will terminate by the last day of the year.”
6) violation of salary ordinance and appropriation ordinance: “By Charter, the Mayor of East Cleveland is authorized a stated salary of $40,000.00. * * * On December 19, 2011, City Council passed Ordinance No. 101-11, which adjusted salary ranges of City employees. That ordinance, * * *, amended an earlier temporary salary ordinance which had provided for a salary of $25,000.00 for the position of Safety Director and a salary of $25,000.00 for the position of Assistant Safety Director by eliminating the salary appropriations for these positions. * * *. As of June 30, 2012, the Finance Director has
7) failure to cooperate with respondent: “Council‘s formulation and implementation of appropriations ordinance - On February 4, 2012, City Council passed Resolution 104-11, * * *, requiring the Mayor to submit to Council by the end of each fiscal year a budget schedule for each city department‘s essential and discretionary functions. From the end of 2011 to date, the Mayor has failed to comply with Resolution 104-11 for fiscal year 2012. On February 18, 2012, City Council passed Ordinance No. 109-11, requiring the Mayor to submit to Council on a quarterly basis a schedule of all essential personnel by department. * * * Further, the Mayor, without any authority to do so, delayed approval of the appointment of a Deputy Clerk of Council and the placement of such Clerk on the City payroll. The Mayor and the Finance Director are and have been attempting to impede the operation of the City Council and have refused to properly pay the invoices submitted for expenses incurred in City Council operations. * * * ”
8) unauthorized contracts: “The mayor has followed a consistent pattern of accepting grants and funds without approval of the receipt of such funds by Council as required by the Codified Ordinances and Charter.”
9) Law Director has failed to perform his mandatory duty: “Law Director, Ronald Riley, has consistently failed and refused to promptly draft ordinances as requested by City Council.”
ANALYSIS AND DISPOSITION OF COMPLAINT FOR MANDAMUS
{7} Applied to the facts and circumstances of this action, are the following principles stated previously but summarized in the following: 1) mandamus will not be employed to enforce the general mandate of the law; 2) mandamus will not be employed to require a public officer to follow the law generally in the conduct of his official duties; 3) mandamus will not issue to compel a public officer to prospectively observe the law and perform a specific duty; 4) mandamus will not be employed as a substitute for one seeking declaratory judgment and prohibitory injunction; 5) mandamus will not be employed to order a vain act; and 6) mandamus will not be employed where the act requested is moot.
{8} It must also be noted that our decision to not issue a writ of mandamus is based upon the material fact that the office of the Auditor of the state of Ohio declared respondent-city of East Cleveland to be in fiscal emergency and thus placed under fiscal watch.
{9} Pursuant to
{10} As previously stated, the relators have raised nine claims in support of their complaint for a writ of mandamus. We find, for the following reasons, that mandamus is not appropriate with regard to any of the nine claims:
1) inventory of supplies and materials: is moot; does not lie to compel a public officer to follow the law generally in the conduct of duties, does not lie to compel a public officer prospectively to observe the law, failure to establish a clear legal right to relief or a clear legal duty;
2) monthly balance sheets: is moot; does not lie to compel a public officer to follow the law generally in the conduct of duties, does not lie to compel a public officer prospectively to observe the law, failure to establish a clear legal right to relief or a clear legal duty;
3) financial information: is moot; does not lie to compel a public officer to follow the law generally in the conduct of duties, does not lie to compel a public officer prospectively to observe the law, failure to establish a clear legal right to relief or a clear legal duty;
5) financial information: inventory of supplies and materials: is moot; does not lie to compel a public officer to follow the law generally in the conduct of duties, does not lie to compel a public officer prospectively to observe the law, failure to establish a clear legal right to relief or a clear legal duty;
6) Mayor‘s violation of salary ordinance and appropriation ordinance: the claim does not state a cause of action in mandamus because the real objects sought are a declaratory judgment and a prohibitory injunction;
7) failure to cooperate with formulation and implementation of appropriation ordinance: is moot; does not lie to compel a public officer to follow the law generally in the conduct of duties, does not lie to compel a public officer prospectively to observe the law, failure to establish a clear legal right to relief or a clear legal duty;
8) unauthorized contracts: is moot; does not lie to compel a public officer to follow the law generally in the conduct of duties, does not lie to compel a public officer prospectively to observe the law, failure to establish a clear legal right to relief or a clear legal duty;
9) failure of Law Director to perform duty: is moot; does not lie to compel a public officer to follow the law generally in the conduct of duties, does not lie to compel a public officer prospectively to observe the law, failure to establish a clear legal right to
{11} In essence, mandamus may only be employed to compel the performance of a present existing duty as to which there is a present default. Mandamus will not issue to force prospective relief nor will mandamus lie to remedy the anticipated nonperformance of a duty. In addition, other facts taken into consideration by this court, including the relators’ rights, the equity and justice of denying a writ of mandamus, public policy, the public‘s interest, and whether the performance of the requested acts would give the relators effective relief, weigh heavily against the issuance of a writ of mandamus. Thus, this court, in the exercise of its discretion, declines to issue a writ of mandamus on behalf of the relators.
{12} Accordingly, this court denies the relators’ motion for summary judgment, and grants the respondents’ motion for summary judgment, albeit for reasons different than those argued by the respondents. Relators to pay costs. The court directs the clerk of court to serve all parties with notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{13} Writ denied.
LARRY A. JONES, SR., JUDGE
MELODY J. STEWART, A.J., and EILEEN A. GALLAGHER, J., CONCUR