State ex rel. Ohio Council 8 v. Spellacy , 17 Ohio St. 3d 112 ( 1985 )

Wright, J.

It is well-settled that in order for a writ of mandamus to issue the relator must demonstrate “(1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law.” State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St. 3d 28, 29, citing State, ex rel. Harris, v. Rhodes (1978), 54 Ohio St. 2d 41, 42 [8 O.O. 3d 36]; State, ex rel. Heller, v. Miller (1980), 61 Ohio St. 2d 6 [15 O.O. 3d 3], paragraph one of the syllabus; State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St. 2d 42 [15 O.O. 3d 53], paragraph one of the syllabus. Relators have failed to satisfy any of the stated requirements necessary for the issuance of this high peremptory writ.

Initially, relators have not proven that they have a clear legal right to the relief prayed for. Relators claim they are legally entitled to require respondents to sign and honor a new statement of policy. In effect, relators are seeking to implement and enforce the functional equivalent of a collective bargaining agreement. The facts presented, however, do not clearly establish relators’ contention that any new agreement was entered into prior to respondents’ notice of termination. Simply stated, relators have failed to conclusively prove the existence of a legally enforceable contract or collective bargaining agreement.

Secondly, and more importantly, relators have not demonstrated that respondents were under a clear legal duty to enter into a collective bargaining agreement. During the course of negotiations commencing November 22, 1982, the respondents lacked the authority to collectively bargain with court employees. Malone v. Court of Common Pleas (1976), 45 Ohio St. 2d 245 [74 O.O.2d 413]. Cf. F.O.P. v. Dayton (1978), 60 Ohio App. 2d 259 [14 O.O.3d 238]; American Federation of Employees v. Polta (1977), 59 Ohio App. 2d 283 [13 O.O.3d 284]. All statements of policy entered into prior to this time were merely statements of understanding between the relators and the respondents.

In the period between the expiration of the statement of policy ending on January 31, 1983, and the breakdown in negotiations on February 28, 1984, the Ohio General Assembly enacted the Public Employees Collective Bargaining Act which extended collective bargaining rights to public employees. Officers and employees of the courts were specifically excluded from the purview of this legislation, however,¹ unless the court, as employer, expressly elected to engage in collective bargaining.² R.C. 4117.01(C)(8) and 4117.03(C). Thus, the decision to recognize collective bargaining is strictly a matter of judicial discretion. R.C. 2731.03 states that:

“The writ of mandamus may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion. ” (Emphasis added.)

In sum, prior to the enactment of the Public Employees Collective Bargaining Act, R.C. 4117.01 et seq., respondents, as officers of a court of common pleas, had no authority to enter into collective bargaining agreements with employees of the court. Subsequent to the enactment of the collective bargaining Act, the determination to recognize collective bargaining within the courts became a matter of judicial discretion. As such, there is no absolute legal duty which would warrant granting the extraordinary remedy of mandamus in the present case.

Finally, relators have failed to prove that they have no plain and adequate remedy in the ordinary course of the law. This case involves essentially whether a contractual obligation exists between the relators and the respondents. The proper vehicle for resolving this issue is through the filing of a declaratory judgment action in the court of common pleas. Cf. State, ex rel. Square, v. Planning Comm. (1980), 64 Ohio St. 2d 128 [18 O.O.3d 362]; State, ex rel. McGarvey, v. Zeigler (1980), 62 Ohio St. 2d 320 [16 O.O.3d 363]; State, ex rel. Buian, v. Kadlec (1978), 56 Ohio St. 2d 116 [10 O.O.3d 307],

Relators claim that a declaratory judgment action would be inappropriate because it must be filed with the Court of Common Pleas of Cuyahoga County and because it would involve a matter between that court and its employees. We nevertheless believe that a declaratory judgment proceeding would provide a plain and adequate remedy. The Chief Justice of this court, pursuant to the Rules of Superintendence for Courts of Common Pleas and upon request of the administrative judge of the common pleas court, may assign a visiting judge to hear the declaratory judgment action.

For all of the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Celebrezze, C.J., Locher, Holmes and C. Brown, JJ., concur. Celebrezze, C.J., and C. Brown, J., concur separately. Sweeney and Douglas, JJ., dissent.

1 R.C. 4117.01(C)(8) provides:

“ ‘Public employee’ means any person holding a position by appointment or employment in the service of a public employer, including any person working pursuant to a contract between a public employer and a private employer and over whom the national labor relations board has declined jurisdiction on the basis that the involved employees are employees of a public employer, except:

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“(8) Employees and officers of the courts, assistants to the attorney general, assistant prosecuting attorneys, and employees of the clerks of courts who perform a judicial function;

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2 R.C. 4117.03(C) states:

“Nothing in Chapter 4117. of the Revised Code prohibits public employers from electing to engage in collective bargaining, meet and confer, discussions, or any other form of collective negotiations with public employees who are not subject to Chapter 4117. of the Revised Code pursuant to division (C) of section 4117.01 of the Revised Code.”