Summary
In State ex rel. Bennett v. Lime (1978), 55 Ohio St.2d 62, 378 N.E.2d 152, syllabus, the Ohio Supreme Court held that "a court, in the exercise of its discretion, may refuse to issue a writ of mandamus."
Summary of this case from Jeroncic v. Dept. of Human ServicesOpinion
No. 77-1366
Decided July 12, 1978.
Mandamus — Remedy not available, when — Alternative remedy of declaratory judgment adequate.
Where parties to a mandamus action are also parties, or may be joined as parties, in a previously filed declaratory judgment action involving the same subject matter, a court, in the exercise of its discretion, may refuse to issue a writ of mandamus.
APPEAL from the Court of Appeals for Cuyahoga County.
The instant cause arises out of an original action in the Court of Appeals for Cuyahoga County seeking, on behalf of relators, Clarence Bennett, Kenneth Novak and Francis Szabo, a writ of mandamus to compel, inter alia, the auditor of the city of Parma, Joseph S. Lime, to pay relators their regular pay as police officers while they are required to serve on active duty as members of the United States Army Reserve.
On October 4, 1976, Parma, a noncharter municipality, enacted an ordinance (since codified as Section 173.02 of the Codified Ordinances of the City of Parma), under which the city deducts the military pay of employees from the salary it pays to them during the period that they are required to serve on active duty. Prior to relators filing a complaint for a writ of mandamus with the appellate court, Bennett, Novak and others sought a declaratory judgment in the Court of Common Pleas of Cuyahoga County ruling Section 173.02 unconstitutional as being in conflict with R.C. 5923.05, and awarding them damages. The Court of Common Pleas upheld the constitutionality of Section 173.02 on August 3, 1977.
On October 3, 1977, the Court of Appeals granted a motion to dismiss the mandamus action on the ground that there was an adequate remedy at law.
The cause is now before this court on an appeal as of right.
Mr. Paul Mancino, Jr., and Mr. Burt H. Sagen, for appellants.
Mr. Andrew Boyko, law director, and Mr. Stephen P. Bond, for appellees.
The main issue raised by this cause is whether a writ of mandamus should issue to compel the city to pay relators their full salaries as police officers for the period they are on active military duty.
Two of the relator-appellants have already been allowed to pursue declaratory judgment relief in the Court of Common Pleas of Cuyahoga County, and the third could have been joined in that action and can be joined in any appeal of that action. Civ. R. 21.
"Neither this court nor the Court of Appeals has discretion to decline jurisdiction of an action in mandamus. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631. Whether the writ should be allowed or denied in a given case is discretionary with the court.
"* * * The availability of a declaratory judgment action does not bar the issuance of a writ of mandamus 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." State, ex rel. Dollison, v. Reddy (1978), 55 Ohio St.2d 59.
This court concludes that where parties to a mandamus action are also parties, or may be joined as parties, in a previously filed declaratory judgment action involving the same subject matter, a court, in the exercise of its discretion, may refuse to issue a writ of mandamus.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CELEBREZZE, P. BROWN, SWEENEY and LOCHER, JJ., concur.