THE STATE EX REL. KINGSLEY, APPELLANT, v. STATE EMPLOYMENT RELATIONS BOARD, APPELLEE.
No. 2011-0441
Supreme Court of Ohio
Submitted September 6, 2011—Decided November 1, 2011
[Cite as State ex rel. Kingsley v. State Emp. Relations Bd., 130 Ohio St.3d 333, 2011-Ohio-5519.]
Per Curiam.
{¶ 1} This is an appeal from a judgment dismissing the complaint of appellant, Kay A. Kingsley, a former administrative law judge (“ALJ“) for appellee, State Employment Relations Board (“SERB“), for a writ of mandamus to declare Am.Sub.H.B. No. 1 of the 128th General Assembly (“H.B. 1“) unconstitutional and to compel SERB to recognize Kingsley as a classified employee and reinstate her to her former position. Because Kingsley had an adequate remedy at law by way of her civil-service appeal to raise her claims, we affirm the judgment of the court of appeals.
Facts
{¶ 2} According to Kingsley‘s complaint for a writ of mandamus, SERB appointed her as an ALJ, which was a classified position, in January 1999. Effective July 17, 2009, the General Assembly enacted H.B. 1, the biennial budget bill. The bill revised
{¶ 3} On November 20, 2009, Kingsley filed a complaint in the Court of Appeals for Franklin County. She requested that the court of appeals grant a writ of mandamus to declare H.B. 1 unconstitutional as applied to her and to order SERB to recognize her as a classified employee and to reinstate her to her
{¶ 4} In February 2011, the court of appeals granted SERB‘s motion and dismissed Kingsley‘s mandamus complaint. The court of appeals determined that Kingsley had an adequate remedy in the ordinary course of law by way of her administrative appeal.
{¶ 5} This cause is now before the court upon Kingsley‘s appeal as of right.
Legal Analysis
{¶ 6} Kingsley asserts that the court of appeals erred in holding that she has an adequate remedy in the ordinary course of law by way of her administrative appeal from her termination of employment as a SERB ALJ.
{¶ 7} To be entitled to the writ, Kingsley had to establish a clear legal right to have the amended provision of H.B. 1 reclassifying her position as unclassified declared unconstitutional and to order her reinstated to her classified position as ALJ, a corresponding clear legal duty on the part of SERB to provide that relief, and the lack of an adequate remedy in the ordinary course of law. See State ex rel. Tempesta v. Warren, 128 Ohio St.3d 463, 2011-Ohio-1525, 946 N.E.2d 208, ¶ 13.
{¶ 8} Kingsley cannot prove either a clear legal right to reinstatement to her former classified position as a SERB ALJ or a corresponding clear legal duty on the part of SERB to reinstate her, because, as she concedes, there has been no final determination that she was wrongfully excluded from her employment with SERB. See State ex rel. Ullmann v. Hayes, 103 Ohio St.3d 405, 2004-Ohio-5469, 816 N.E.2d 245, ¶ 10; State ex rel. Baker v. State Personnel Bd. of Rev. (1999), 85 Ohio St.3d 640, 644, 710 N.E.2d 706.
{¶ 9} We discussed this principle in State ex rel. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, 605 N.E.2d 37. In Weiss, a former employee of the Industrial Commission who was removed from the classified service and then terminated from her unclassified position petitioned for a writ of mandamus to compel her reinstatement and payment of back wages. The former employee challenged the authority for and the constitutionality of her removal from classified service, and she also had appealed her discharge to the State Personnel Board of Review (“SPBR“) and the SPBR‘s decision dismissing her appeal to the common pleas court. Id.
{¶ 10} We denied the writ because the former commission employee had not received a final determination that her discharge from employment was wrongful:
{¶ 11} “[B]efore a writ of mandamus will issue to compel a classified employee‘s reinstatement or back pay, there must first be a final determination made in an appeal from SPBR, a local civil service commission, or other quasi-judicial authority that the employee was ‘wrongfully excluded from employment.’ State ex rel. Colangelo v. McFaul (1980), 62 Ohio St.2d 200 [201], 16 O.O.3d 239, 404 N.E.2d 745 * * *. Until this determination is made, a ‘wrongful exclu[sion]’ has not occurred, and mandamus does not lie. * * * Thus, mandamus is not available as a substitute for civil service appeals.” Id. at 476-477.
{¶ 12} Similarly, the court of appeals did not err in dismissing Kingsley‘s mandamus claim here because Kingsley had received no final determination by either SPBR or a court in a further appeal that she had been wrongfully terminated from her former classified civil-service position with SERB.
{¶ 13} Moreover, Kingsley had an adequate remedy by way of her civil-service appeal from her discharge from employment. “Mandamus will not issue when the relators have an adequate remedy in the ordinary course of law.” State ex rel. Voleck v. Powhatan Point, 127 Ohio St.3d 299, 2010-Ohio-5679, 939 N.E.2d 819, ¶ 7;
{¶ 14}
{¶ 15} “An administrative appeal generally provides an adequate remedy in the ordinary course of law that precludes extraordinary relief in mandamus.” State ex rel. Hilltop Basic Resources, Inc. v. Cincinnati, 118 Ohio St.3d 131, 2008-Ohio-1966, 886 N.E.2d 839, ¶ 23. “Mandamus may not be employed as a substitute for a civil-service appeal.” State ex rel. Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, 862 N.E.2d 104, ¶ 9.
{¶ 16} Although Kingsley acknowledges this general rule, she contends that there should be an exception when constitutional challenges are made. Her claims, however, lack merit for the following reasons.
{¶ 17} First, Kingsley‘s mandamus claims included her nonconstitutional claim that the H.B. 1 amendment declassifying the position of SERB ALJ was inapplicable to her because SERB-appointed ALJs like her remained in the classified service. She manifestly had an adequate remedy in the ordinary course of law by way of her appeal to SPBR and further appeal to the court of common pleas from the adverse SPBR decision to raise her claim that she “remained a classified employee and that she was improperly removed from the classified service.” State ex rel. Glasstetter v. Rehab. Servs. Comm., 122 Ohio St.3d 432, 2009-Ohio-3507, 912 N.E.2d 89, ¶ 28.
{¶ 18} Second, Kingsley had an adequate remedy by her civil-service appeal to raise her claim that the H.B. 1 amendment that removed her from the classified service is unconstitutional both on its face and as applied to her. To be sure, “[i]t is settled that an administrative agency is without jurisdiction to determine the constitutional validity of a statute.” State ex rel. Columbus S. Power Co. v. Sheward (1992), 63 Ohio St.3d 78, 81, 585 N.E.2d 380. But we have also recognized that facial and as-applied constitutional challenges can be raised on further appeal from an administrative agency to a court. See Reading v. Pub. Util. Comm., 109 Ohio St.3d 193, 2006-Ohio-2181, 846 N.E.2d 840, ¶ 16 (facial constitutional challenge can be raised for the first time in appeal from administrative agency, and as-applied constitutional challenge must be raised first in the agency to allow the parties to develop an evidentiary record).
{¶ 19} More important, we held in Weiss, 65 Ohio St.3d 470, 605 N.E.2d 37, that the discharged employee had an adequate remedy in the ordinary course of law by way of a civil-service appeal, and that employee had specifically claimed, as Kingsley does here, that her removal from the classified service of the state was unconstitutional.
{¶ 20} Third, the mere fact that pursuing her administrative appeal may result in more delay and expense does not render it inadequate. “[T]he fact that the
{¶ 21} Fourth, Kingsley is also mistaken that any claim of bias against a SERB member that affects her due-process rights could not be adequately raised in the context of the administrative appeal. See State ex rel. Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, ¶ 19 (administrative appeal constituted adequate remedy to raise claim that administrative agency deprived litigant of due-process rights). In fact, notwithstanding her argument to the contrary, SPBR is a separate entity from SERB.
{¶ 22} Finally, Kingsley has already exercised her right to appeal her removal from her position as a SERB ALJ to SPBR and has appealed the SPBR decision dismissing her appeal to the court of common pleas, the court of appeals, and this court. The mere fact that she has already unsuccessfully invoked her appellate remedy does not thereby entitle her to the requested extraordinary relief in mandamus. See generally State ex rel. Bell v. Madison Cty. Bd. of Commrs., 128 Ohio St.3d 357, 2011-Ohio-527, 944 N.E.2d 659, ¶ 13; State ex rel. Agosto v. Cuyahoga Cty. Court of Common Pleas, 119 Ohio St.3d 366, 2008-Ohio-4607, 894 N.E.2d 314, ¶ 12. Nor is mandamus authorized to gain successive appellate reviews of the same issue. State ex rel. Barr v. Pittman, 127 Ohio St.3d 32, 2010-Ohio-4989, 936 N.E.2d 43, ¶ 1.
{¶ 23} Therefore, it appears beyond doubt that Kingsley‘s mandamus claim lacks merit.
Conclusion
{¶ 24} Based on the foregoing, the court of appeals properly dismissed Kingsley‘s complaint because she did not set forth a viable claim for the requested extraordinary relief in mandamus. She had an adequate remedy by way of her civil-service appeal to raise her claims. Therefore, we affirm the judgment of the court of appeals dismissing the mandamus complaint.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Kingsley Law Office and James R. Kingsley, for appellant.
Michael DeWine, Attorney General, and Michael C. McPhillips, Assistant Attorney General, for appellee.