State ex rel. Fenwick v. Finkbeiner

650 N.E.2d 896, 72 Ohio St. 3d 457

Opinion

Per Curiam.

Because we find that appellee has an adequate remedy at law we reverse the judgment of the court of appeals.

In his first proposition of law, appellant argues that the court of appeals had no authority to issue a writ of prohibition because appellee’s dismissal is not a judicial or quasi-judicial act and because appellee has adequate remedies at law, although appellant does not specify the remedies that are adequate. Appellee argues that prohibition is appropriate, or alternatively, that mandamus or quo warranto is appropriate.

“The prerequisites for issuing a writ of prohibition are (1) that the respondent is about to exercise judicial or quasi-judicial authority, (2) the authority is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law.” Ohio Dept. of Adm. Serv. v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48, 53, 562 N.E.2d 125, 130. The court of appeals found appellant was about to engage in quasi-judicial authority by terminating appellee. We concede, without deciding, that dismissal of an employee may be considered a quasi-judicial act under some circumstances. In State ex rel. Nolan v. Clendening (1915), 93 Ohio St. 264, 112 N.E. 1029, an early prohibition case, we allowed the writ, prohibiting a state administrative tribunal with authority to remove certain officers for specified causes from removing the relator for a different cause. However, Nolan makes it clear that the decision is predicated on the lack of an adequate remedy. 93 Ohio St. at 272, 112 N.E. at 1031. Thus, the determinative issue in this case, as in Nolan, is the availability of adequate legal remedies.

In Yarosh v. Becane (1980), 63 Ohio St.2d 5, 17 O.O.3d 3, 406 N.E.2d 1355, we held at paragraph two of the syllabus:

“The State Personnel Board of Review has jurisdiction over appeals from removals of public employees if it determines that such employees are in the classified service, regardless of how they have been designated by their appointing authorities." (Emphasis added.)

Under R.C. 124.40, the municipal civil service commission has the same authority with respect to city health district employees. In State ex rel. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, 605 N.E.2d 37, we refused to issue a writ of mandamus to reinstate an employee who claimed to have been wrongly transferred from the classified to the unclassified civil service, and then dismissed the complaint, finding that appeal under R.C. 124.34 was an adequate remedy at law. See, also, State ex rel. Gillivan v. Bd. of Tax Appeals (1994), 70 Ohio St.3d 196, 638 N.E.2d 74.

Just as we have held that the statutory appeals process is adequate to deny a writ of mandamus seeking to reinstate an employee, so we hold that such process is adequate to deny a writ of prohibition seeking comparable relief. However, the availability of adequate remedies is irrelevant if the lower tribunal is without jurisdiction whatsoever to act and the lack of jurisdiction is patent and unambiguous. Ohio Dept. of Adm. Serv, supra, 54 Ohio St.3d at 51, 562 N.E.2d at 128-129, citing State ex rel. Adams v. Gusweiler (1972), 30 Ohio St.2d 326, 59 O.O.2d 387, 285 N.E.2d 22 (tribunal lacked any jurisdiction whatsoever), and State ex rel. Safeco Ins. Co. of Am. v. Kornowski (1974), 40 Ohio St.2d 20, at 22, 69 O.O.2d 90, at 91, 317 N.E.2d 920, at 921 (lack of jurisdiction was patent and unambiguous).

In Gusweiler, we specifically distinguished cases in which the inferior tribunal had at least basic statutory jurisdiction to proceed in the case. 30 Ohio St.2d at 329, 59 O.O.2d at 389, 285 N.E.2d at 24.

Section 69 of the Toledo Charter grants appellant basic authority to remove appellee. Moreover, any lack of authority is far from patent and unambiguous. Therefore, the availability of alternative remedies must be considered, and we find that the appeal process provided by R.C. Chapter 124 is an adequate remedy. In so holding, we express no opinion as to the validity of Toledo’s ordinances or appellant’s ultimate authority to dismiss appellee.

Appellee’s claim that his action is alternatively appropriate in mandamus or quo warranto is unpersuasive. We have held in Weiss and Gillivan, supra, that mandamus is not available to reinstate an employee because the appeal procedure provided by R.C. Chapter 124 is an adequate remedy. Therefore, it is not available to cause retention of an employee faced with dismissal where the rights claimed by the employee include access to R.C. Chapter 124’s appeal procedure. Appellee’s quo warranto claim is that appellant is usurping the duties and functions of the board of health. However, a quo warranto claim may be brought by someone other than the Attorney General or a prosecuting attorney only when that person claims title to the office. State ex rel. Annable v. Stokes (1970), 24 Ohio St.2d 32, 53 O.O.2d 18, 262 N.E.2d 863. Appellee makes no claim of title to be the successor to the office of the board of health. Quo warranto has no application to these facts. Moreover, as this case was not argued as a mandamus or quo warranto action in the court of appeals, we find no basis in law to convert it on appeal.

The judgment of the court of appeals is reversed.

Judgment reversed.

Moyer, C.J., F.E. Sweeney, Pfeifer and Cook, JJ., concur. Wright, J., concurs in judgment only. Douglas and Resnick, JJ., not participating.