Moyer, C.J.
The issue presented in this case is whether failure to exhaust administrative remedies is a jurisdictional defect, or an affirmative defense that may be waived. The issue is of central importance under the facts of this case because Chagrin Falls did not raise the defense on summary judgment and therefore must be held to have waived it if the defect is not jurisdictional. For the reasons that follow, we reaffirm our established precedent that failure to exhaust administrative remedies is a waivable affirmative defense, and we therefore reverse the judgment of the court of appeals.
Ohio’s Declaratory Judgment Act sets out in R.C. 2721.02 the types of cases appropriate to declaratory judgment actions before courts of record. Civ.R. 57 specifies that declaratory judgment is not precluded, where appropriate, by “[t]he existence of another appropriate adequate remedy.”
[459]*459R.C. 2721.02 provides:
“Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect. Such declaration has the effect of a final judgment or decree.”
R.C. 2721.03 provides in part:
“Any person interested under a deed, will, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise, may have determined any question of construction or validity arising under such instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”
Civ.R. 57 provides:
“The procedure for obtaining a declaratory judgment pursuant to Sections 2721.01 to 2721.15, inclusive, of the Revised Code, shall be in accordance with these rules. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. * * *”
Nothing in R.C. Chapter 2721 exempts zoning ordinances from the subject matter jurisdiction of courts of common pleas to decide declaratory judgment actions. Nor have we found any other statutory language depriving the trial court of jurisdiction in this case. Therefore, if the court of common pleas lacked jurisdiction in this case, as the court of appeals held, the legal underpinnings for such a holding must be found in the case law.
The village directs our attention to several of our own cases and urges us to rely on them to uphold the determination of the court of appeals that the doctrine of failure to exhaust administrative remedies is a jurisdictional defect depriving the trial court of the power to hear and decide the question before it. We do not agree. Indeed, neither our case law nor that of other jurisdictions supports so sweeping a response to the issue before us.
In Driscoll v. Austintown Assoc. (1975), 42 Ohio St.2d 263, 71 O.O.2d 247, 328 N.E.2d 395, Driscoll and others sought to collaterally attack, on grounds of failure to exhaust administrative remedies, a two-year-old declaratory judgment holding that a zoning ordinance prohibiting certain landowners from constructing multifamily housing units on their property was unconstitutional. We upheld the validity of the declaratory judgment stating: “Failure to exhaust administrative remedies is not a jurisdictional defect, and such a failure will not justify a [460]*460collateral attack on an otherwise valid and final judgment. Failure to exhaust administrative remedies is an affirmative defense which must be timely asserted in an action or it is waived. Civ.R. 8(C) and 12(H).” Id. at 276, 71 O.O.2d at 254, 328 N.E.2d at 403-404.
The village of Chagrin Falls correctly observes that the issue in Driscoll was whether a zoning ordinance was constitutional; this case presents no constitutional issue. The village also emphasizes that this court has in the past treated constitutional questions differently from those of simple statutory interpretation when considering the propriety of declaratory judgment actions. See, e.g., Fairview Gen. Hosp. v. Fletcher (1992), 63 Ohio St.3d 146, 586 N.E.2d 80. For these reasons, the village argues, we should distinguish between Driscoll and the present case in determining the applicability of the Driscoll holding.
In Gannon v. Perk (1976), 46 Ohio St.2d 301, 75 O.O.2d 358, 348 N.E.2d 342, however, we applied the same reasoning to a case in which no constitutional question was raised. Gannon involved a declaratory judgment action brought by Cleveland’s police and fire fighters seeking a declaration that the mayor was without power under the city charter to place them on layoff. We held that failure to exhaust administrative remedies was not a jurisdictional defect, nor did it preclude the common pleas court from hearing the action, despite the absence of a constitutional question. We simply repeated the above-quoted language from Driscoll and added: “The record before this court does not disclose timely assertion by the appellants of the affirmative defense of failure to exhaust administrative remedies. Therefore, pursuant to Driscoll, that defense is no longer available to appellants.” Gannon v. Perk, 46 Ohio St.2d at 310, 75 O.O.2d at 363, 348 N.E.2d at 348.
In contrast to these unequivocal statements of Ohio law, we have found no Ohio Supreme Court precedent supporting the court of appeals’ conclusion that failure to exhaust administrative remedies is a jurisdictional defect.
Whether a constitutional question is raised such that exhaustion of administrative remedies should not be required is an inquiry wholly separate from the affirmative-defense-versus-jurisdictional-defect issue posed by the present case. We have long held that failure to exhaust administrative remedies is not a necessary prerequisite to an action challenging the constitutionality of a statute, ordinance, or administrative rule. Driscoll v. Austintovm Assoc., supra, 42 Ohio St.2d 263, 71 O.O.2d 247, 328 N.E.2d 395, paragraph two of the syllabus; Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 17, 526 N.E.2d 1350, 1355; Fairview Gen. Hosp. v. Fletcher, supra, 63 Ohio St.3d 146, 149, 586 N.E.2d 80, 82.
The policy interest underlying the rule distinguishing between cases presenting constitutional issues and others is simply the conservation of public resources. Because administrative bodies have no authority to interpret the Constitution, [461]*461requiring litigants to assert constitutional arguments administratively would be a waste of time and effort for all involved.
Free access — add to your briefcase to read the full text and ask questions with AI
Moyer, C.J.
The issue presented in this case is whether failure to exhaust administrative remedies is a jurisdictional defect, or an affirmative defense that may be waived. The issue is of central importance under the facts of this case because Chagrin Falls did not raise the defense on summary judgment and therefore must be held to have waived it if the defect is not jurisdictional. For the reasons that follow, we reaffirm our established precedent that failure to exhaust administrative remedies is a waivable affirmative defense, and we therefore reverse the judgment of the court of appeals.
Ohio’s Declaratory Judgment Act sets out in R.C. 2721.02 the types of cases appropriate to declaratory judgment actions before courts of record. Civ.R. 57 specifies that declaratory judgment is not precluded, where appropriate, by “[t]he existence of another appropriate adequate remedy.”
[459]*459R.C. 2721.02 provides:
“Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect. Such declaration has the effect of a final judgment or decree.”
R.C. 2721.03 provides in part:
“Any person interested under a deed, will, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise, may have determined any question of construction or validity arising under such instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”
Civ.R. 57 provides:
“The procedure for obtaining a declaratory judgment pursuant to Sections 2721.01 to 2721.15, inclusive, of the Revised Code, shall be in accordance with these rules. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. * * *”
Nothing in R.C. Chapter 2721 exempts zoning ordinances from the subject matter jurisdiction of courts of common pleas to decide declaratory judgment actions. Nor have we found any other statutory language depriving the trial court of jurisdiction in this case. Therefore, if the court of common pleas lacked jurisdiction in this case, as the court of appeals held, the legal underpinnings for such a holding must be found in the case law.
The village directs our attention to several of our own cases and urges us to rely on them to uphold the determination of the court of appeals that the doctrine of failure to exhaust administrative remedies is a jurisdictional defect depriving the trial court of the power to hear and decide the question before it. We do not agree. Indeed, neither our case law nor that of other jurisdictions supports so sweeping a response to the issue before us.
In Driscoll v. Austintown Assoc. (1975), 42 Ohio St.2d 263, 71 O.O.2d 247, 328 N.E.2d 395, Driscoll and others sought to collaterally attack, on grounds of failure to exhaust administrative remedies, a two-year-old declaratory judgment holding that a zoning ordinance prohibiting certain landowners from constructing multifamily housing units on their property was unconstitutional. We upheld the validity of the declaratory judgment stating: “Failure to exhaust administrative remedies is not a jurisdictional defect, and such a failure will not justify a [460]*460collateral attack on an otherwise valid and final judgment. Failure to exhaust administrative remedies is an affirmative defense which must be timely asserted in an action or it is waived. Civ.R. 8(C) and 12(H).” Id. at 276, 71 O.O.2d at 254, 328 N.E.2d at 403-404.
The village of Chagrin Falls correctly observes that the issue in Driscoll was whether a zoning ordinance was constitutional; this case presents no constitutional issue. The village also emphasizes that this court has in the past treated constitutional questions differently from those of simple statutory interpretation when considering the propriety of declaratory judgment actions. See, e.g., Fairview Gen. Hosp. v. Fletcher (1992), 63 Ohio St.3d 146, 586 N.E.2d 80. For these reasons, the village argues, we should distinguish between Driscoll and the present case in determining the applicability of the Driscoll holding.
In Gannon v. Perk (1976), 46 Ohio St.2d 301, 75 O.O.2d 358, 348 N.E.2d 342, however, we applied the same reasoning to a case in which no constitutional question was raised. Gannon involved a declaratory judgment action brought by Cleveland’s police and fire fighters seeking a declaration that the mayor was without power under the city charter to place them on layoff. We held that failure to exhaust administrative remedies was not a jurisdictional defect, nor did it preclude the common pleas court from hearing the action, despite the absence of a constitutional question. We simply repeated the above-quoted language from Driscoll and added: “The record before this court does not disclose timely assertion by the appellants of the affirmative defense of failure to exhaust administrative remedies. Therefore, pursuant to Driscoll, that defense is no longer available to appellants.” Gannon v. Perk, 46 Ohio St.2d at 310, 75 O.O.2d at 363, 348 N.E.2d at 348.
In contrast to these unequivocal statements of Ohio law, we have found no Ohio Supreme Court precedent supporting the court of appeals’ conclusion that failure to exhaust administrative remedies is a jurisdictional defect.
Whether a constitutional question is raised such that exhaustion of administrative remedies should not be required is an inquiry wholly separate from the affirmative-defense-versus-jurisdictional-defect issue posed by the present case. We have long held that failure to exhaust administrative remedies is not a necessary prerequisite to an action challenging the constitutionality of a statute, ordinance, or administrative rule. Driscoll v. Austintovm Assoc., supra, 42 Ohio St.2d 263, 71 O.O.2d 247, 328 N.E.2d 395, paragraph two of the syllabus; Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 17, 526 N.E.2d 1350, 1355; Fairview Gen. Hosp. v. Fletcher, supra, 63 Ohio St.3d 146, 149, 586 N.E.2d 80, 82.
The policy interest underlying the rule distinguishing between cases presenting constitutional issues and others is simply the conservation of public resources. Because administrative bodies have no authority to interpret the Constitution, [461]*461requiring litigants to assert constitutional arguments administratively would be a waste of time and effort for all involved. “[I]f resort to administrative remedies would be wholly futile, exhaustion is not required.” Karches v. Cincinnati, 38 Ohio St.3d 12, 17, 526 N.E.2d 1350, 1355 (citing Glover v. St. Louis-San Francisco Ry. Co. [1969], 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519); Driscoll v. Austintown Assoc., 42 Ohio St.2d 263, 275, 71 O.O.2d 247, 253-254, 328 N.E.2d 395, 403.
The village relies on Schomaeker v. First Natl. Bank of Ottawa (1981), 66 Ohio St.2d 304, 20 O.O.3d 285, 421 N.E.2d 530, and Fairview Gen. Hosp. v. Fletcher, supra, 63 Ohio St.3d 146, 586 N.E.2d 80, for the proposition that failure to exhaust administrative remedies deprives the trial court of subject matter jurisdiction to consider a declaratory judgment action. However, we agree with appellant Jones that neither case is apposite.
In Schomaeker, a landowner sought a declaratory judgment stating that a use variance granted to a contiguous property owner for the construction of a parking lot was void. The Schomaeker plaintiff had participated in the administrative process from the beginning in an attempt to block the undesired use. We held that the plaintiff was entitled to appeal the grant of the variance, and was “not entitled to a declaratory judgment where failure to exhaust administrative remedies is asserted and maintained.” Id. at paragraph three of the syllabus.
The village’s reliance on Schomaeker, however, is misplaced for two important reasons. First, appellant Jones is not situated similarly to the Schomaeker plaintiff, whose status was essential to the holding of that case. See Schomaeker at paragraph two of the syllabus. In Schomaeker, the plaintiff was a “person owning property contiguous to the proposed use who ha[d] previously indicated an interest in the matter by a prior court action challenging the use, and who [had] attended] a hearing on the variance together with counsel * * Id. Appellant Jones does not share any of the cited attributes.
Second, the Schomaeker syllabus is inconsistent with the conclusion that failure to exhaust administrative remedies is a jurisdictional defect, but consistent with the conclusion that it is an affirmative defense. This is evidenced by the language of the third paragraph of the syllabus which does not mention subject matter jurisdiction, but does state that a person in Schomáeker’s position “is not entitled to a declaratory judgment where failure to exhaust administrative remedies is asserted and maintained.” (Emphasis added.) Id. at paragraph three of the syllabus. If failure to exhaust remedies deprived the trial court of subject matter jurisdiction, the “asserted and maintained” language would amount to mere surplusage.
Fairview Gen. Hosp. v. Fletcher is equally unavailing to the village’s position. That case involved a declaratory judgment action filed by a hospital seeking a [462]*462declaration that Ohio’s certificate of need laws were inapplicable to the hospital’s request for redesignation of the level of its neonatal intensive care unit. The Ohio Department of Health (“ODH”) argued for dismissal on the grounds that the hospital had failed to exhaust its administrative remedies before the Certificate of Need Review Board. We held that the declaratory judgment action should have been dismissed because it was “unavailable” under the failure-to-exhaust doctrine. Fairview Gen. Hosp. v. Fletcher, 63 Ohio St.3d at 152, 586 N.E.2d at 85.
We did not, however, specifically state or even imply that failure to exhaust administrative remedies is a jurisdictional defect or that our opinion was based on such a rule. We merely affirmed the court of appeals’ holding that the trial court erred in rejecting on summary judgment ODH’s “affirmative defenses of exhaustion of remedies and res judicata.” Id., 63 Ohio St.3d at 147-148, 586 N.E.2d at 82.
We therefore hold that the doctrine of failure to exhaust administrative remedies is not a jurisdictional defect to a declaratory judgment action; it is an affirmative defense that may be waived if not timely asserted and maintained. Gannon v. Perk, supra, 46 Ohio St.2d 301, 75 O.O.2d 358, 348 N.E.2d 342; Driscoll v. Austintown Assoc., supra, 42 Ohio St.2d 263, 71 O.O.2d 247, 328 N.E.2d 395.
We observe that our holding is not to be read as a rejection of the force of the doctrine requiring exhaustion of administrative remedies in general. We agree with the United States Supreme Court and the courts of the many jurisdictions that have echoed the words of Myers v. Bethlehem Shipbuilding Corp. (1938), 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638, 644: “[It is] the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” (Footnote omitted.)
Our decision today simply clarifies that under our adversarial system of justice it is the responsibility of the party seeking to benefit from the doctrine to raise and argue it. Once raised, it becomes the duty of the trial court to determine upon consideration of the affirmative defenses and the elements of a declaratory judgment action, whether such action is proper. We do not perceive the obligation of arguing an affirmative defense to be unduly burdensome; it is consistent with the adversarial system of justice, and it protects the judiciary from the erosion of its authority represented by a holding that courts are without fundamental power to hear cases expressly placed within their purview by the General Assembly through R.C. 2305.01 and 2721.02.
[463]*463Accordingly, the judgment of the court of appeals is reversed, and the cause is remanded to the court of appeals to decide the issue presented for review by the parties, ie., the proper interpretation of the village zoning ordinance.
Judgment reversed and cause remanded.
F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur.
Douglas and Resnick, JJ., concur in part and dissent in part.
Cook, J., dissents.