IN RE: REMOVAL OF Nan WHALEY (2020)

DECISION AND FINAL JUDGMENT ENTRY

Introduction

{¶ 1} Mark R. Winkle filed a “Verified Complaint and Motion for Injunctive Relief” on July 27, 2020. He challenges the Statewide Mask Order issued by the Governor of Ohio, as well as the Mask Wearing Ordinance issued by the City of Dayton Commissioners, issued in response to Covid-19. Winkle named as respondents the Governor and the Interim Director of the Ohio Department of Health (with respect to one claim), and the City of Dayton Commissioners and the Director of Public Health – Dayton & Montgomery County (with respect to a second claim).¹

{¶ 2} According to the Complaint's caption, Winkle seeks writs of mandamus for the following purposes: 1) declaring the Governor's statewide mask order unconstitutional; 2) declaring the City of Dayton's mask ordinance unconstitutional, and 3) ordering “forfeiture of office” for the Local Officials pursuant to the Ohio Constitution and Ohio statutes. Because a mandamus action filed in this court is not the proper vehicle to accomplish any of these purposes, we dismiss.

Legal Authority and Analysis

{¶ 3} This court has original jurisdiction over an action seeking a writ of mandamus. Ohio Constitution, Article IV, Section 3(B)(1)(b). However, “[a] writ of mandamus is an extraordinary remedy that only applies in a limited set of circumstances.” State ex rel. Parisi v. Heck, 2d Dist. Montgomery No. 25709, 2013-Ohio-4948, 2013 WL 5975008, ¶ 4. Its function “ ‘is to compel the performance of a present existing duty as to which there is a default.’ ” State ex rel. Willis v. Sheboy, 6 Ohio St.3d 167, 168-69, 451 N.E.2d 1200 (1983), quoting State ex rel. Fed. Homes Properties, Inc. v. Singer, 9 Ohio St.2d 95, 96, 223 N.E.2d 824 (1967). Styling an action as one for mandamus does not give this court authority to grant any relief a party requests; a writ of mandamus is by definition an order to a respondent to perform an established legal duty. See R.C. 2731.01.

{¶ 4} A relator must identify the duty he is asking the court to enforce. Here, to be entitled to any of the writs of mandamus he has requested, Winkle must ultimately establish (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondents to provide it, and (3) the lack of an adequate legal remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. He must establish these elements by clear and convincing evidence. Id. at ¶ 13.

{¶ 5} The Complaint before us contains what appear to be two main branches. First, Winkle seeks a declaratory judgment that the Statewide Mask Order and City's Mask Ordinance (and/or the statutes allowing their enforcement) are unconstitutional, and a preliminary and permanent injunction preventing respondents from enforcing penalties for non-compliance. Second, the Complaint seeks to begin statutory removal processes for the Local Officials based on alleged violations of constitutional rights and statutory requirements. We address these requests in turn below.

Declaratory Judgment and Injunctive Relief

{¶ 6} The Complaint begins: “This is an action for declaratory judgment, and preliminary and permanent injunction,” pursuant to Ohio Revised Code Chapters 2721 and 2727. Complaint, ¶ 1. Winkle asserts that the Governor declared a state of emergency, authorized the Health Director's predecessor to issue orders, issued an Executive Order mandating the wearing of masks in Ohio, and placed restrictions on the size of public gatherings, all without statutory authority or due process, and in violation of the Ohio Constitution. He asks this court to:

H. Declare that R.C. 3701.352 2 and R.C. 3701.99,3 when enforcing R.C. 3701.13 4 and 3701.56,5 and the actions and criminalization of non-compliance within the Director's Order pursuant thereto are unconstitutional on their faces and as applied to Plaintiffs due to the statutes and the Director's Order: (i) failing to provide meaningful procedural due process (ii) failing to afford equal protection of the law; (iii) violating the doctrine of separation of powers; and (iv) delegated unfettered and unbridled vague power to unelected officials.

I. Declare that the Director of the Ohio Department of Health has exceeded the statutory limits of their authority by mandating that every citizen of the State of Ohio wear a face mask, with the exception of certain citizens, thus violating the 14th amendment rights of the plaintiff and other citizens of the State of Ohio.

J. Enjoin Defendants from enforcing penalties for non-compliance with the Order.

K. Enjoin Defendants from imposing penalties predicated solely on non-compliance with the Order (because R.C. 3701.352 is impermissibly vague and violates separation of powers, insofar as it authorized criminal penalties and the other severe sanctions articulated in R.C. 3701.99 for disobedience of “any order” of the Ohio Department of Health with the sole unconfined limit that the order be one “to prevent a threat to the public caused by a pandemic”).

(Emphasis added.) Complaint, Prayer for Relief.

{¶ 7} This court of appeals lacks jurisdiction to take these actions. As we said, this court has the authority in a mandamus action to order a respondent to comply with a specific, clear legal duty, because that's what a writ of mandamus is. R.C. 2731.01 (“Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station”). We do not have authority in a mandamus action to prohibit or enjoin a party from doing something relator expects them to do, because that's not what a writ of mandamus is. Id. Such a request is a request for a prohibitory injunction, which we cannot grant. See State ex rel. Gadell-Newton v. Husted, 153 Ohio St.3d 225, 2018-Ohio-1854, 103 N.E.3d 809, ¶ 9-13 (seeking to prevent an anticipated injury is “the function of a prohibitory injunction,” which is “not within our original jurisdiction to grant”).

{¶ 8} Nor does this court have the authority to issue a declaratory judgment in the first instance; that is the province of a trial court with broader jurisdiction than ours.⁶ This court of appeals is generally not a trial court except with respect to the specific list of original actions allowed by the Ohio Constitution. As one court of appeals has explained:

[P]ursuant to Section [3](B), Article IV of the Ohio Constitution, the scope of an Ohio appellate court's original jurisdiction is expressly limited to five types of claims. State ex rel. Biros v. Logan, 11th Dist. No.2003-T-0016, 2003-Ohio-5425 [2003 WL 22326666], at ¶ 15. Since a declaratory judgment claim is not included in the list delineated under the constitutional provision, an Ohio appellate court does not have the general authority to hear such a claim as a trial court. Wright v. Ghee (1996), 74 Ohio St.3d 465, 659 N.E.2d 1261; State ex rel. Coyne v. Todia (1989), 45 Ohio St.3d 232, 543 N.E.2d 1271. Instead, we can only consider the merits of a declaratory judgment claim in a direct appeal from a decision of a lower court.

Rone v. State, 11th Dist. Ashtabula No. 2005-A-0075, 2006-Ohio-1268, 2006 WL 687939, ¶ 4.

{¶ 9} Accordingly, the Supreme Court of Ohio has instructed that “if the allegations of a complaint for a writ of mandamus indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, the complaint does not state a cause of action in mandamus and must be dismissed for want of jurisdiction.” State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 634, 716 N.E.2d 704 (1999). For example, the Supreme Court said that where a mandamus claim sought a declaratory judgment that certain legislation was “unconstitutional and a prohibitory injunction preventing state officials from applying those provisions,” the claim – although called a mandamus claim – must be dismissed. Id. at 635, 716 N.E.2d 704.⁷ Such is the situation before us.

{¶ 10} Winkle challenges the argument that this court lacks jurisdiction, pointing to the fact that this court accepted the case for filing. But acceptance of a complaint for filing by the clerk of this court cannot be construed as this court's approval of subject matter jurisdiction over any particular case. The clerk's office is guided by different principles and statutory requirements than this court. Compare R.C. 2701.20 (discussing when the clerk of a court of record may refuse to file a document) with Ohio Constitution, Article IV, Section 3(B)(1)(b) (circumscribing the original jurisdiction of this court). Moreover, “ ‘[t]he power to make any decision as to the propriety of any paper submitted or as to the right of a person to file such paper is vested in the court, not the clerk.’ ” State ex rel. Montgomery Cty. Pub. Def. v. Siroki, 108 Ohio St.3d 334, 2006-Ohio-1065, 843 N.E.2d 778, ¶ 12 (2006), quoting State ex rel. Wanamaker v. Miller, 164 Ohio St. 176, 177, 128 N.E.2d 110 (1955). In other words, this court, and not the clerk, is authorized to determine our jurisdiction. We determine that we do not have jurisdiction over Winkle's declaratory judgment and prohibitory injunction claims here.

{¶ 11} Winkle correctly points out that this court has jurisdiction to issue a writ of mandamus pursuant to R.C. 2731.02.⁸ However, Winkle has asked this court to do something other than order a respondent to comply with an existing legal duty, which is what a writ of mandamus does. Although he labeled his action as one in mandamus, he asks for a declaratory judgment and a prohibitory injunction. Those are different causes of action. Moreover, a declaratory judgment and prohibitory injunction are not the types of relief that a writ of mandamus can offer. See State ex rel. City of Xenia v. Greene Cty. Bd. of Commrs., 2d Dist. Greene No. 2018CA0021, 2019-Ohio-4801, 2019 WL 6245462, ¶ 11, aff'd 2020-Ohio-3423, 160 Ohio St.3d 495, 159 N.E.3d 262 (2020) (the appropriate relief in mandamus is to order respondent to comply with the particular clear legal duty at issue). Here, we consider the substance of Winkle's requests, not just the label he has affixed to them. See State ex rel. Browning v. Browning, 5th Dist. Muskingum No. CT2011-CA-55, 2012-Ohio-2158, 2012 WL 1684569, ¶ 43 (“Courts of this state have recognized that the name given to a pleading or motion is not controlling. * * * Rather, the substance of the pleading or motion determines the operative effect thereof”). In substance, Winkle has asked for something other than a writ of mandamus that we do not have the authority to provide.

{¶ 12} Winkle also notes that he first submitted his complaint to the Montgomery County Court of Common Pleas, Probate Division, which refused to hear it. He explains that he then went “over the probate judge's head” to this court, because the case would end up here in due time, instead of filing “a writ of Mandamus asking this court to order the probate court to hear the case.” Although the details provided as to the nature of Winkle's previous complaint are few, we perceive this argument to pertain to the second part of Winkle's complaint for removal or forfeiture of office, largely because Winkle refers to a statute that, he argues, “mandates that [the probate court] hear those cases.” We discuss the forfeiture/removal claim below. However, we note that Winkle did not file a mandamus claim asking this court to compel the probate court judge to act, and has not named the probate court judge as a respondent. We decline to exercise jurisdiction over the declaratory judgment and prohibitory injunction claims on the basis of a mandamus claim that was not presented.

{¶ 13} Finally, this jurisdictional finding is not one that respondents are “above the law,” as Winkle cautions, but a determination that this court, in this kind of case, does not have the authority to evaluate the particular claims Winkle has raised. Reviewing claims over which we lack jurisdiction would cause this court to exceed its own constitutional boundaries, which we are not at liberty to do. See Wright v. Ghee, 74 Ohio St.3d 465, 466, 659 N.E.2d 1261 (1996) (Supreme Court affirmed “the court of appeals' dismissal of the complaint for declaratory judgment and injunction, as courts of appeals lack jurisdiction in these causes”).

{¶ 14} In summary, because Winkle expressly seeks a declaratory judgment and a prohibitory injunction, and because we lack the jurisdiction to issue either, we find that this part of his Complaint fails to state a claim in mandamus. We DISMISS the claims to declare the Statewide Mask Order, the City's Mask Ordinance, and certain Ohio statutes unconstitutional. We likewise DISMISS the claim to enjoin their enforcement.

Forfeiture or Removal from Office

{¶ 15} Winkle's “second cause of action” alleges that the Local Officials violated several sections of the Ohio Revised Code and the City of Dayton Charter in enacting a July 1, 2020 ordinance that requires the wearing of masks within the City of Dayton.⁹ See, e.g., R.C. 731.20 (Authentication and recording); R.C. 731.21 (Publication of succinct summary of ordinances and resolutions; notice; copies provided upon request); R.C. 731.22 (Times of publication required); R.C. 731.24 (Certificate of clerk as to publication). Winkle argues that the Mask Ordinance is unenforceable and invalid because of these violations. See R.C 731.26 (Effect of not making publication). He further argues that the Local Officials have exceeded their authority, violated Winkle's constitutional rights, and “have committed numerous misdemeanors” as well as a federal felony, by interfering with, and conspiring with each other to violate, his constitutional rights. See R.C. 2921.45 (Interfering with civil rights); R.C. 2921.44(E) (Dereliction of duty); 18 U.S.C. 242 (Deprivation of rights under color of law). Winkle argues that the Local Officials have committed misfeasance and malfeasance in office and that pursuant to R.C. 733.72(C) and R.C. 3.07, all have forfeited their right to hold public office.¹⁰

{¶ 16} Winkle therefore asks this court to begin the statutory procedure for filing charges against municipal officers outlined in R.C. 733.72, which provides:

When a complaint under oath is filed with the probate judge of the county in which a municipal corporation or the larger part thereof is situated, by any elector of the municipal corporation, signed and approved by four other electors thereof, the judge shall forthwith issue a citation to any person charged in the complaint for his appearance before the judge within ten days from the filing thereof, and shall also furnish the accused and the village solicitor or city director of law with a copy thereof. The complaint shall charge any of the following:

* * *

(C) That a member of the legislative authority or an officer of the municipal corporation has been guilty of misfeasance or malfeasance in office.

R.C. 733.72. Winkle reasons that the Local Officials thereafter must be removed from office:

Any person holding office in this state, or in any municipal corporation, county, or subdivision thereof, coming within the official classification in Section 38 of Article II, Ohio Constitution, who * * * is guilty of * * * misfeasance, malfeasance, or nonfeasance is guilty of misconduct in office. Upon complaint and hearing in the manner provided for in sections 3.07 to 3.10, inclusive, of the Revised Code, such person shall have judgment of forfeiture of said office with all its emoluments entered thereon against him, creating thereby in said office a vacancy to be filled as prescribed by law. * * *

R.C. 3.07. The procedure for such removal is described in the following code sections, including R.C. 3.08:

Proceedings for the removal of public officers on any of the grounds enumerated in section 3.07 of the Revised Code shall be commenced by the filing of a written or printed complaint specifically setting forth the charge and signed by qualified electors of the state or political subdivision whose officer it is sought to remove, not less in number than fifteen per cent of the total vote cast for governor at the most recent election for the office of governor in the state or political subdivision whose officer it is sought to remove, or, if the officer sought to be removed is the sheriff or prosecuting attorney of a county or the mayor of a municipal corporation, the governor may sign and file such written or printed complaint without the signatures of qualified electors. Such complaint shall be filed with the court of common pleas of the county where the officer against whom the complaint is filed resides, except that when the officer against whom the complaint is filed is a judge of the court of common pleas, such complaint shall be filed in the court of appeals of the district where such judge resides, and all complaints against state officers shall be filed with the court of appeals of the district where the officer against whom the complaint is filed resides. The judge or clerk of the court shall cause a copy of such complaint to be served upon the officer, against whom the complaint has been filed, at least ten days before the hearing upon such complaint. Such hearing shall be had within thirty days from the date of the filing of the complaint by said electors, or by the governor. The court may suspend the officer pending the hearing. * * *

R.C. 3.08.

{¶ 17} Nothing in these statutes gives this court of appeals jurisdiction to proceed with or evaluate Winkle's claim for forfeiture of or removal from office. R.C. 733.72 requires a complaint alleging misfeasance or malfeasance in office to be filed with the probate judge.¹¹ R.C. 3.08 requires its removal proceedings to be instituted in “the court of common pleas of the county where the officer against whom the complaint is filed resides,” with exceptions not relevant here. This court of appeals is not the proper place for either of these procedures to commence.¹²

{¶ 18} As we found with Winkle's first cause of action, we lack jurisdiction to hear the statutory removal/forfeiture claim. Our jurisdiction is set by law and this claim is outside of it. We also find, as we did above, that the request in this second cause of action does not state a claim in mandamus, as this court is being asked to take action other than compelling respondents to comply with a clear legal duty. We therefore DISMISS Winkle's claim to begin removal proceedings against the Local Officials.

Conclusion

{¶ 19} We agree with respondents' arguments that this court lacks jurisdiction to hear the claims before us for declaratory judgment and prohibitory injunction, and SUSTAIN the respective motions to dismiss those claims. We also agree with the Local Officials that Winkle fails to state a claim on which mandamus relief can be granted with respect to forfeiture of or removal from office. Civ.R. 12(B)(6). We further find that Winkle “obviously cannot prevail on the facts alleged in the complaint” in this court on the forfeiture/removal claim and so DISMISS that claim as well. State ex rel. Williams v. Trim, 145 Ohio St.3d 204, 2015-Ohio-3372, 48 N.E.3d 501, ¶ 11. The Complaint is accordingly DISMISSED in its entirety. Costs taxed to Winkle.

SO ORDERED.

FOOTNOTES

1.   The two sets of respondents are: Ohio Governor Michael DeWine (the “Governor”), and Ohio Department of Health Interim Director Lance Himes (the “Health Director”); and City of Dayton Mayor/City of Dayton Commissioner Nan Whaley, City of Dayton Commissioners Matt Joseph, Jeffrey Mims, Christopher Shaw, and Darryl Fairchild, and Director of Public Health - Dayton & Montgomery County, Jeffrey Cooper. We refer to the latter group collectively as the “Local Officials.”

2.   “No person shall violate any rule the director of health or department of health adopts or any order the director or department of health issues under this chapter to prevent a threat to the public caused by a pandemic, epidemic, or bioterrorism event.” R.C. 3701.352.

3.   “Whoever violates section 3701.352 * * * of the Revised Code is guilty of a misdemeanor of the second degree.” R.C. 3701.99(C).

4.   “The department of health shall have supervision of all matters relating to the preservation of the life and health of the people and have ultimate authority in matters of quarantine and isolation, which it may declare and enforce, when neither exists, and modify, relax, or abolish, when either has been established. The department may approve methods of immunization against the diseases specified in section 3313.671 of the Revised Code for the purpose of carrying out the provisions of that section and take such actions as are necessary to encourage vaccination against those diseases.The department may make special or standing orders or rules for preventing the use of fluoroscopes for nonmedical purposes that emit doses of radiation likely to be harmful to any person, for preventing the spread of contagious or infectious diseases, for governing the receipt and conveyance of remains of deceased persons, and for such other sanitary matters as are best controlled by a general rule. Whenever possible, the department shall work in cooperation with the health commissioner of a general or city health district. The department may make and enforce orders in local matters or reassign substantive authority for mandatory programs from a general or city health district to another general or city health district when an emergency exists, or when the board of health of a general or city health district has neglected or refused to act with sufficient promptness or efficiency, or when such board has not been established as provided by sections 3709.02, 3709.03, 3709.05, 3709.06, 3709.11, 3709.12, and 3709.14 of the Revised Code. In such cases, the necessary expense incurred shall be paid by the general health district or city for which the services are rendered.The department of health may require general or city health districts to enter into agreements for shared services under section 9.482 of the Revised Code. The department shall prepare and offer to boards of health a model contract and memorandum of understanding that are easily adaptable for use by boards of health when entering into shared services agreements. The department also may offer financial and other technical assistance to boards of health to encourage the sharing of services.As a condition precedent to receiving funding from the department of health, the director of health may require general or city health districts to apply for accreditation by July 1, 2018, and be accredited by July 1, 2020, by an accreditation body approved by the director. The director of health, by July 1, 2016, shall conduct an evaluation of general and city health district preparation for accreditation, including an evaluation of each district's reported public health quality indicators as provided for in section 3701.98 of the Revised Code.The department may make evaluative studies of the nutritional status of Ohio residents, and of the food and nutrition-related programs operating within the state. Every agency of the state, at the request of the department, shall provide information and otherwise assist in the execution of such studies.” R.C. 3701.13.

5.   “Boards of health of a general or city health district, health authorities and officials, officers of state institutions, police officers, sheriffs, constables, and other officers and employees of the state or any county, city, or township, shall enforce quarantine and isolation orders, and the rules the department of health adopts.” R.C. 3701.56.

6.   We observe that the Rock House Fitness case attached to the Complaint was heard in a trial court: the Court of Common Pleas of Lake County, Ohio. Rock House Fitness, Inc. v. Acton, Lake C.P. No. 20CV000631, 2020 WL 3105522, at *6 (May 20, 2020).

7.   The Supreme Court also noted that “constitutional challenges to legislation are normally considered in an action originating in a court of common pleas rather than an extraordinary writ action * * *.” Grendell at 635, 716 N.E.2d 704.

8.   “The writ of mandamus may be allowed by the supreme court, the court of appeals, or the court of common pleas and shall be issued by the clerk of the court in which the application is made. Such writ may issue on the information of the party beneficially interested.” R.C. 2731.02.

9.   City of Dayton Ordinance No. 31821-20 is entitled “AN ORDINANCE Requiring Face Coverings in Any Public Space to Limit the Spread of COVID-19, and Declaring an Emergency.” The Mask Ordinance was passed by the Commission on July 1, 2020, and signed by Mayor Whaley that same day. See Exhibit A to Complaint.

10.   Winkle also cites R.C. 732.32, which does not exist in the Ohio Revised Code. From context, we presume he meant to cite to R.C. 733.72.

11.   With respect to Winkle's allegation that the probate division of the Montgomery County Court of Common Pleas refused to hear his case, we reiterate that the probate judge has not been named as a respondent here, and that Winkle has not stated a mandamus claim to compel that court to consider his petition. We make no determination that the court should or must do so.

12.   We likewise make no determination that these statutes apply to any of the respondents and no determination on the merits of these claims.

PER CURIAM