[Cite as State ex rel. E. Cleveland v. Norton,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98772

STATE OF OHIO, EX REL., CITY OF EAST CLEVELAND, OHIO, ET AL.

RELATORS vs. GARY NORTON, MAYOR, ET AL. RESPONDENTS

JUDGMENT: WRIT DENIED

Writ of Mandamus Motion Nos. 464138 and 464139 Order No. 466691

RELEASE DATE: August 27, 2013 FOR RELATORS

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 ATTORNEYS FOR RESPONDENTS

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

LARRY A. JONES, SR., J.: {¶1} The city of East Cleveland, Dr. Joy Jordan, Chantelle Lewis, Nathaniel

Martin, Barbara Thomas, and Mansell Baker (hereinafter referred to as “relators”), have

filed a complaint for a writ of mandamus.1 The relators allege that Gary Norton, Mayor

of East Cleveland, Irene Crowell, Finance Director of East Cleveland, and Ronald K.

Riley, Law Director of East Cleveland (hereinafter referred to as “respondent Mayor,”

“respondent Finance Director,” and “respondent Law Director”), have violated duties

imposed by the Charter and Codified Ordinances of the City of East Cleveland, Ohio.2

The relators, as well as the respondents, have all filed motions for summary judgment with

supporting affidavits and other evidentiary material. We deny the relators’ motion for

summary judgment and grant the respondents’ motion for summary judgment, albeit for

different reasons and arguments than presented by the respondents.

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,

,

(1987). Furthermore, if the relators possessed an

adequate remedy, regardless of whether it was used, relief in mandamus is precluded.

1 Jordan, Lewis, Martin, Thomas, and Baker are named as relators in both their individual capacity as well as councilpersons of the city of East Cleveland. 2 On March 25, 2013, Irene Crowell was substituted for Jack Johnson, the former city Finance Director. See disposition of relators’ motion to substitute, motion no. 463309. State ex rel. Tran v. McGrath,

,

,

.

Moreover, mandamus is an extraordinary remedy that is to be exercised with caution and

issued only when the right and duty is absolutely clear. Mandamus will not issue in

doubtful cases. State ex rel. Taylor v. Glasser,

,

(1977);

State ex rel. Shafer v. Ohio Turnpike Comm.,

,

(1953);

State ex rel. Connole v. Cleveland Bd. of Edn.,

,

(8th

Dist. 1993); State ex rel. Dayton-Oakwood Press v. Dissinger,

,

(2d Dist. 1940). The Supreme Court of Ohio has also

firmly established that the facts submitted in support of the complaint for mandamus and

the proof produced must be plain, clear and convincing before a court is justified in using

the “strong arm of the law” by way of granting a writ of mandamus. State ex rel. Pressley

v. Indus. Comm. of Ohio,

,

(1967).

{¶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,

(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,

,

(1922). See also State ex

rel. Keyser v. Commrs. of Wayne Cty.,

,

(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,

,

,

; State ex rel. Obojski v.

Perciak,

,

,

, quoting State ex rel.

Grendell v. Davidson,

,

,

.

Mandamus will not issue to require a public officer to prospectively observe the law. State ex rel. Home Care Pharmacy, Inc. v. Creasy,

,

(1981); State ex rel. Kay v. Fuerst, 156 Ohio St 188,

(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 mandamus, the court hearing the original action should consider the exigency which calls for the exercise of such discretion, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing on the particular case. * * * Among the facts and circumstances which the court will consider are the applicants’ rights, the interests of third persons, the importance or unimportance of the case, the applicant’s conduct, the equity and justice of the relator’s case, public policy and the public’s interest, whether the performance of the act by the respondent would give the relator any effective relief, and whether such act would be impossible, illegal or useless.

. See also State ex rel. Bennett v. Lime,

,

(1978); State ex rel. Dollison v. Reddy,

,

(1978),

State ex rel. Mettler v. Stratton et al.,

,

(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

Johnson, now Irene Crowell) to ‘deliver to Council on the first day of each calendar month a monthly balance sheet showing in detail all receipts and

expenditures of the City for the preceding calendar year.’”

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 disbursed payments to the Mayor totaling $22,485.00 from the police dept. fund and

$22,485.00 from the fire department fund. The Finance Director has continued to pay

these funds to the Mayor despite the lack of any appropriations providing for such funds.”

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 {¶6} Based upon the motions for summary judgment as filed by the relators and

the respondents, the briefs in opposition to the motions for summary judgment, the

supporting affidavits, the attached exhibits, and the deposition transcripts, we decline to

issue a writ of mandamus on behalf of the relators. As previously stated, this court in

considering the grant or denial of the writ of mandamus on the merits, will exercise sound

legal and judicial discretion based upon all of the facts and circumstances in this case and

the justice to be done.

{¶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 R.C. 118.05, a seven-member financial planning and supervision

commission was created to oversee the daily and long-term financial operation of

respondent-city of East Cleveland. The financial oversight includes preparation of a long-range financial plan designed to remedy the financial problems of respondent-city of

East Cleveland; restrictions on the financial activities of the respondent-city of East

Cleveland; and the allocation of financial resources by department (police, fire, highways,

etc.) and account (salaries, fringe benefits, etc.). The complaint for a writ of mandamus

concerns the daily and long-term financial operations of respondent-city of East Cleveland,

which have been assumed by the financial planning and supervision commission pursuant

to R.C. 118.05, and are no longer the responsibility of the relators.

{¶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; 4) failure of Finance Director to attend meetings: 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 relief or a clear legal duty.

{¶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