Opinion
No. 78-829
Decided April 25, 1979.
Mandamus — Writ denied, when — Remedy of appeal available — Constitutionality of statute at issue.
APPEAL from the Court of Appeals for Franklin County.
This cause arises from an original action in mandamus, filed in the Court of Appeals for Franklin County, wherein Riverside Methodist Hospital, appellee herein, seeks to compel William T. Gillie, Judge of the Court of Common Pleas of Franklin County, to submit a negligence action pending in that court between plaintiffs Earl and Mary LaValley and defendant Riverside to arbitration prior to trial pursuant to the mandates of R.C. 2711.21. In response to a motion filed in that cause by plaintiffs to remove the matter from the arbitration provisions of the statute, Judge Gillie found that R.C. 2711.21 was unconstitutional.
R.C. 2711.21 provides, inter alia, that:
"(A) Upon a filing of any medical claim as defined in division (D)(3) of Section 2305.11 of the Revised Code, the controversy shall be submitted to an arbitration board * * *.
"* * *
"(C) If the decision of the arbitration board is not accepted by all parties thereto, the pleadings shall be amended to aver both the fact that the controversy was submitted to an arbitration board and the decision of the * * * board."
Riverside challenged Judge Gillie's determination by filing both a complaint in mandamus and a direct appeal in the Court of Appeals for Franklin County.
On September 29, 1977, the Court of Appeals dismissed the appeal, concluding that the trial court's order was "interlocutory in nature."
By decision dated May 16, 1978, however, the Court of Appeals held that R.C. 2711.21 was constitutional and that the trial court had a clear legal duty to follow the arbitration provisions thereof. The writ of mandamus was allowed and the cause is now before this court upon an appeal as a matter of right.
Messrs. Bricker, Evatt, Barton Eckler, Mr. Bruce G. Lynn and Mr. Marshall L. Lerner, for appellee. Messrs. Wolske Blue, Mr. Walter J. Wolske, Jr., and Mr. Dennis M. McCarthy, for appellants Mary T. and Earl LaValley.
Mr. George C. Smith, prosecuting attorney, and Mr. Richard W. Siehl, for appellant William T. Gillie, Judge.
Appellants argue, inter alia, that the determination of the trial court that R.C. 2711.21 is unconstitutional is a discretionary judicial decision, challengeable by an appropriate direct appeal. Appellants assert further that such procedure affords appellee an adequate remedy in the ordinary course of the law. We agree.
"Extraordinary remedies * * * [such as] mandamus * * * are available only when usual forms of procedure are incapable of affording relief. They may not be employed before trial on the merits, or as a substitute for an appeal for the purpose of reviewing mere errors, or irregularities in the proceedings of a court * * *, or as a means of testing the constitutionality of a statute * * * where the court * * * had jurisdiction to determine the question of constitutionality." State, ex rel. Woodbury, v. Spitler (1973), 34 Ohio St.2d 134, 137, 296 N.E.2d 526. See, also, State, ex rel. Wargo, v. Price (1978), 56 Ohio St.2d 65, 381 N.E.2d 943; State, ex rel. Marshall, v. Keller (1968), 15 Ohio St.2d 203, 239 N.E.2d 85.
Appellee avers that the remedy of appeal, in the instant cause, is not adequate because the benefit of the arbitration provisions of R.C. 2711.21 would be unavailable after a trial and after a determination of the constitutionality of the statute on appeal. We find appellee's contention in this regard unpersuasive.
R.C. 2711.21 is a compulsory, nonbinding arbitration procedure which offers no guarantee to either party that a cause will avoid trial. Furthermore, a final determination on appeal that R.C. 2711.21 is constitutional could render the trial court's refusal to comply with the mandatory arbitration provisions of the statute reversible error.
The issue of the constitutionality of R.C. 2711.21 was properly before the Court of Common Pleas, and that court's judgment may be duly reviewed upon direct appeal to the Court of Appeals.
The writ of mandamus should not have been allowed and the judgment of the Court of Appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.