State ex rel. Eudela v. Rogers

459 N.E.2d 539, 9 Ohio St. 3d 159, 9 Ohio B. 448, 1984 Ohio LEXIS 1029

Opinions

Per Curiam.

It is axiomatic that a writ of mandamus may issue only where the relator shows (1) a clear legal right to the relief prayed for, (2) a clear legal duty upon respondent to perform the act requested, and (3) that relator has no plain and adequate remedy in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St. 3d 28, 29.

The threshold question confronting the court today is whether the court of appeals properly issued the writ of mandamus in light of the existence of an available remedy by way of a declaratory judgment proceeding pursuant to R.C. Chapter 2721. R.C. 2721.03 states in part:

“Any person interested under a * * * rule as defined in section 119.01 of the Revised Code * * * may have determined any question of construction or validity arising under such * * * rule * * * and obtain a declaration of rights, status or other legal relations thereunder.”

Without question R.C. 2721.03 would allow appellee to seek a declaratory judgment to construe the parameters of the phrase “informal meeting” as it is used in Ohio Adm. Code 5119-7-ll(F)(5). Appellee is clearly a person interested under the rule, since the rule directly impacts on the revocation of appellee’s appointment. Further, appellee’s mandamus complaint simply seeks to construe “informal meeting” to require that appellee be specifically informed of the charges against him in order to defend against the termination of his employment. Since the rule itself does not grant appellee that right, the right sought by appellee must necessarily be derived from an interpretation or construction of the rule. Under those circumstances, a declaratory judgment proceeding would have afforded appellee an opportunity to seek his desired construction of the rule and have his rights declared thereunder. Appellee thus had a “plain and adequate remedy in the ordinary course of law” by way of a declaratory judgment action. As such, the court of appeals erred in issuing the writ of mandamus. See, e.g., State, ex rel. Square, v. Planning Comm. (1980), 64 Ohio St. 2d 128 [18 O.O.3d 362]; State, ex rel. McGarvey, v. Zeigler (1980), 62 Ohio St. 2d 320 [16 O.O.3d 363]; and State, ex rel. Buian, v. Kadlec (1978), 56 Ohio St. 2d 116 [10 O.O.3d 307].¹

Furthermore, as we stated in State, ex rel. McGarvey, v. Zeigler, supra, at 321:

“* * * [T]he right to the relief sought by the relator in mandamus must be clear and the burden of establishing such right is upon the relator.”

Inasmuch as the right sought by appellee does not appear on the face of the rule, it cannot be said that appellee’s right to a detailed notice of the charge is clear. Because there was no “clear legal right to the relief prayed for,” mandamus was improper for this reason also. See State, ex rel. Butler, v. Demis (1981), 66 Ohio St. 2d 123 [20 O.O.3d 121]. Cf. State, ex rel. Heller, v. Miller (1980), 61 Ohio St. 2d 6 [15 O.O.3d 3].

Since the prerequisites for mandamus were not satisfied, the court of appeals erred in allowing the writ of mandamus to issue. Accordingly, the judgment of the court of appeals is reversed and the writ is denied.

Judgment reversed.

Celebrezze, C.J., Ford, Locher, Holmes and J. P. Celebrezze, JJ., concur. W. Brown and C. Brown, JJ., dissent. Ford, J., of the Eleventh Appellate District, sitting for Sweeney, J.

Footnotes

1

This is not to say that the mere availability of a declaratory judgment action bars the issuance of a writ of mandamus. As we stated in State, ex rel. Dollison, v. Reddy (1978), 55 Ohio St. 2d 59, at 60 [9 O.O.3d 67]:

“The availability of a declaratory judgment action does not bar the issuance of a writ of man damus when the relator otherwise makes a proper showing, although the court may consider the availability of declaratory judgment as one element in exercising its discretion whether the writ should issue.”

In the case at bar, appellee has not “otherwise ma[de] a proper showing” that mandamus was proper. This is not an instance, therefore, where declaratory judgment and mandamus exist as alternative remedies.