Summary
In Cleveland Hts., for instance, "no factual issue" existed, because the relator's right to performance turned on a factual issue that "ha[d] already been finally litigated by all parties * * *."
Summary of this case from State, ex Rel. Beacon Journal, v. RadelOpinion
No. 89-1739
Submitted January 9, 1990 —
Decided March 28, 1990.
Mandamus to compel Cuyahoga Metropolitan Housing Authority to seat Cleveland Height's appointee as a member of the board — Writ allowed, when.
IN MANDAMUS.
ON MOTIONS TO DISMISS.
Relators, the city of Cleveland Heights and Janice M. Jones, brought this action asking this court to order the Cuyahoga Metropolitan Housing Authority ("CMHA") to acknowledge and seat Cleveland Heights' appointee, Jones, under R.C. 3735.27(C), as a member of the board of CMHA or to show cause why it has not done so.
R.C. 3735.27(C) provides in pertinent part:
"For any metropolitan housing authority district that contains a population of at least one million, two members of the authority shall be appointed by the municipal legislative authority of the most populous city in the territory included in the district, two members by the chief executive officer of the most populous city in the territory included in the district, and one member by the chief executive officer, with the approval of the municipal legislative authority, of the city in the district which has the second highest number of housing units owned or managed by the authority." (Emphasis added.)
CMHA has determined that, as of September 21, 1988, Cleveland Heights had the second greatest number of housing units owned or managed by CMHA. As a result, Cleveland Heights appointed Jones as its representative to the board.
East Cleveland objected to CMHA's determination. As a result, CMHA brought a declaratory judgment action in common pleas court to determine, inter alia, which city should have the right to appoint the member to the board.
This issue was previously litigated in 1986 in a declaratory judgment action brought by CMHA essentially seeking a determination as to the meaning of the term "units owned or managed by the authority[,]" as used in R.C. 3735.27(C). The court in the prior suit held that there are three types of low-income or subsidized housing programs that CMHA is involved with: the "rental unit" program, the "home ownership agreement" program and the "Section 8 H.U.D. assistance payments" program.
That court found that units involved in the first two programs were owned or managed by CMHA, and that the Section 8 program did not deal with housing units owned or managed by CMHA since this program merely consisted of rental payments made by CMHA to private property owners.
In the 1986 case, East Cleveland was found to be the city with the second highest number of housing units owned or managed by CMHA. Accordingly, the appointee of East Cleveland was seated as a member of the CMHA board. (East Cleveland had previously appointed him and his appointment was confirmed.)
On September 21, 1988, anticipating the expiration of the three-year term of East Cleveland's appointee on October 24, 1988, CMHA notified the parties that Cleveland Heights, according to CMHA's new count, now had the second highest number of units owned or managed by CMHA. The count was Cleveland Heights, one hundred eighty-nine, East Cleveland, one hundred eighty-four.
East Cleveland's appointee shortly thereafter resigned and East Cleveland appointed another person to serve his unexpired term as well as, ostensibly, the three-year term commencing October 24, 1988. In a letter to CMHA, East Cleveland stated that it did not consider itself bound by the 1986 declaratory judgment and that it would not accept CMHA's count of housing units owned or operated by CHMA.
As a result of East Cleveland's refusal to accept the determination of CMHA that Cleveland Heights was the city with the right to appoint a member to the board, CMHA filed a declaratory judgment action in the Court of Common Pleas of Cuyahoga County, asking the court to determine which city has the right of appointment. Cleveland Heights subsequently filed a counterclaim, apparently asking for essentially the same relief.
On January 25, 1989, for unstated reasons, CMHA voluntarily dismissed its complaint, and the trial judge mistakenly dismissed the entire case including the Cleveland Heights counterclaim. The common pleas action, however, was reinstated prior to the filing of the instant action.
On November 16, 1989, the declaratory jugmment action was stayed by the common pleas court pending a ruling from this court. On November 13 and 14, 1989, respectively, CMHA and East Cleveland filed motions to dismiss this mandamus action. CMHA opposes issuance of the writ for the following reasons, inter alia: (1) relator has an adequate remedy at law by way of the pending declaratory judgment action: and (2) relator should bring an action in quo warranto.
East Cleveland, in its motion to dismiss, has alleged: (1) the complaint fails to state a claim upon which relief can be granted; and (2) this court lacks subject matter jurisdiction.
John H. Gibbon and Laure A. Wagner, for petitioners.
Kalam Muttalib, for respondent CMHA.
Craig E. Willis, for respondent East Cleveland.
We find that relators have demonstrated the prerequisites for issuance of a writ of mandamus and we allow the writ. The issue of how the units are to be counted is res judicata. See Trautwein v. Sorgenfrei (1979), 58 Ohio St.2d 493, 12 O.O. 3d 403, 391 N.E.2d 326. What should be counted as a unit owned or managed by CMHA has been previously litigated in the 1986 declaratory judgment action. The ruling favored East Cleveland. East Cleveland did not appeal from that decision, presumably because the ruling was, at the time, favorable to its position. Now that the new count is not in its favor, East Cleveland refuses to accept the previous ruling and through a letter to CMHA states that the court in the 1986 ruling did not have jurisdiction.
The prerequisites are: relator must show a clear right to relief, a clear duty of respondent to perform the requested act, and the absence of a plain and adequate remedy in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50, 451 N.E.2d 225.
For some reason, CMHA has refused to recognize the appointee from Cleveland Heights even though by its own count Cleveland Heights is the city with the second highest number of units owned or managed by CMHA. In the past, we have ordered a public board to recognize the appointment of a person to a board. State, ex rel. DeVito, v. Bacci (1979), 60 Ohio St.2d 63, 14 O.O. 3d 237, 396 N.E.2d 1035. Moreover, even though we held in State, ex rel. Temke, v. Outcalt (1977), 49 Ohio St.2d 189, 3 O.O. 3d 248, 360 N.E.2d 701, that we would not issue a peremptory writ of mandamus unless the material facts are admitted and no valid excuse could be given for nonperformance of the alleged duty, we find no impediment to issuing a peremptory writ in this case. Unlike in Temke, here the right to performance is clear. R.C. 3735.27(C) directs the municipality with the second highest number of housing units to appoint a representative to the housing authority, and by implication, it also directs the authority to accept such appointee.
CMHA does not deny that Cleveland Heights is the city with the second highest number of housing units owned or managed by CMHA. CMHA and East Cleveland have offered no excuse except that East Cleveland disagrees with the way the units are counted and that CMHA does not want to swear in the Cleveland Heights appointee because East Cleveland may file a lawsuit to regain its power to appoint a representative to the CMHA board. Thus, we have no factual issue since the means by which the units are to be counted has already been finally litigated by all parties, which is clear from the fact that the 1986 judgment has never been appealed. By letter dated September 21, 1988, CMHA has determined that the count is: East Cleveland, one hundred eighty-four units, Cleveland Heights, one hundred eighty-nine.
By directing CMHA to recognize the appointee of Cleveland Heights, we require only that CMHA perform a ministerial act. State, ex rel. Fenske, v. McGovern (1984), 11 Ohio St.3d 129, 11 OBR 426, 464 N.E.2d 525. There is no discretion in CMHA that would negate the existence of a clear duty. CMHA cannot avoid its duty merely because a disagreement exists.
The fact that there is a person currently serving on the CMHA board in the contested position does not make this a quo warranto action (as is argued by CMHA) in which a court is asked to remove a person from office who is illegally seated. It is clear that the appointee of East Cleveland is merely a holdover due to CMHA's refusal to make a decision without a court order. According to the holdover statute, R.C. 3.01, the person holding over retains that position only "until his successor is elected or appointed and qualified, unless otherwise provided in the constitution or laws of this state."
The availability of a declaratory judgment action does not bar the issuance of a writ of mandamus where the relator otherwise makes a proper showing. State, ex rel. Dollison, v. Reddy (1978), 55 Ohio St.2d 59, 9 O.O. 3d 67, 378 N.E.2d 150.
According to R.C. 2731.06, "[w]hen the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it, a court, in the first instance, may allow a peremptory mandamus. * * *"
The right of Cleveland Heights to appoint Janice M. Jones to the CMHA board is clear and CMHA offers no valid excuse not to accept her appointment.
Accordingly, the motions to dismiss this complaint are overruled. We allow a peremptory writ of mandamus in the first instance directing CMHA to immediately recognize and seat the Cleveland Heights appointee for the term commencing October 24, 1988. The present appointee of East Cleveland can no longer continue in office upon this ruling since he is a holdover officeholder, and with this court's ordered recognition of his successor's appointment, his status as a board member will automatically terminate per R.C. 3.01.
Writ allowed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.