0"IO'AfAl CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO CASE NO State of Ohio, ex rel. Johnny Holloway, Jr.

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1 0"IO'AfAl IN THE SUPREME COURT OF OHIO State of Ohio, ex rel. Johnny Holloway, Jr. V. Appellee, Personnel Appeals Board, City of Huber Heights CASE NO On Appeal from the Montgomery County Court of Appeals, Second Appellate Judicial District (Court of Appeals Case No ) Appellants. MEMORANDUM OF APPELLEE JOHNNY HOLLOWAY, JR., IN OPPOSITION TO JURISDICTION Richard D. Schuster ( ) (COUNSEL OF RECORD) Michael. J. Hendershot ( ) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio Tel: (614) Fax: (614) and Henry A. Arnett ( ) (COUNSEL OF RECORD) Livorno and Arnett Co., LPA 1335 Dublin Road, Suite 108-B Columbus, Ohio Tel: (614) Fax: (614) andarnett. com COUNSEL FOR APPELLEE, STATE OF OHIO, ex rel. JOIINNY HOLLOWAY, JR Matthew D. Stokely ( ) Julie C. Hammond ( ) PICKREL, SCHAEFFER & EBELING, L.P.A Kettering Tower Dayton, Ohio Tel: (937) COUNSEL FOR APPELLANTS, PERSONNEL APPEALS BOARD, CITY OF HUBER HEIGHTS CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS THIS IS NOT A CASE OF PUBLIC INTEREST...I STATEMENT OF FACTS AND PROCEDURAL HISTORY...2 ARGUMENT...4 APPELLANTS' PROPOSITION OF LAW HAS NO APPLICATION TO THIS CASE CONCLUSION...6 CERTIFICATE OF SERVICE...7

3 THIS IS NOT A CASE OF PUBLIC INTEREST Appellants would have this Court believe that the floodgates have been opened and that Ohio courts are now going to be inundated with trivial and meritless mandamus cases. There is absolutely no basis for such claim. This case involves Johnny Holloway, Jr., one employee of the City of Huber Heights. Holloway was terminated from his position as a battalion chief with the Huber Heights Fire Department. He sought to appeal the termination to the city's civil service commission, called the Personnel Appeals Board. Holloway claimed he had the right to file such an appeal to the Board under the Huber Heights City Charter and that, also under the Charter, the Board was obligated to hear his appeal. ' Instead of fulfilling its obligation to hear the appeal, the Board took absolutely no action on the appeal. No hearing was scheduled or held, and no decision or order was ever made or entered by the Board. At no point did the Board deny or dismiss the appeal; it simply ignored the appeal, taking no action whatsoever in connection with that appeal. Faced with the total inaction by the Board, Holloway pursued the only option available to him under Ohio law, i.e., a mandamus action to compel the Board to comply with its obligation to hear his appeal. The only issue raised in the lower courts was whether Holloway, as a battalion chief, was in the non-exempt service and, therefore, entitled to appeal his termination to the Board. The Court of Appeals ruled he was in the non-exempt service and entitled to appeal to the Board. In so doing, the Court broke no new ground; it simply followed and applied very 'The City's rules also provide that if an appeal is filed by a non-exempt employee, "The Board shall make every effort to conduct the appeal hearing for the employee within a reasonable period of time." 1

4 well established precedents in finding that Holloway was protected by the civil service provisions of the Charter. Appellants do not challenge that Court of Appeals ruling here. Instead, Appellants urge this Court to accept this case and rule that a writ of mandamus will not be issued if the relator has an adequate remedy at law through a revised Code Chapter 2506 appeal. Appellants do not advance any new proposition of law or legal theory -- the concept that mandamus is not available if the relator has an adequate remedy at law is not in dispute. But Appellant's proposition has no applicability to this case. Holloway could not appeal because there was no final Board order in his case. The bottom line is that this case affects only Holloway and his attempt to secure his civil service right to an appeal. This case affects no one else, does not change the standards for issuance of a writ of mandamus, and is of no public interest. STATEMENT OF FACTS AND PROCEDURAL HISTORY Briefly summarizing the facts and procedural history, Holloway was, until his termination on November 23, 2008, employed as a Battalion Chief with the City of Huber Heights Fire Division. As a Battalion Chief, he was in a nonexempt position and, pursuant to the City Charter, had the right to appeal any termination of his employment to the Personnel Appeals Board. Holloway filed an appeal of his termination to the Personnel Appeals Board and requested that the Board hold a hearing. However, the Board took no action on his appeal. No hearing was scheduled. No order from the Board was ever entered. No action was taken by the Board to deny the appeal, dismiss, or take any other steps in connection with the appeal.z ZAppellants state in their memorandum, at p. 3, "The Board refused to hear the appeal, and Mr. Holloway was informed of this decision in writing." This statement, to the extent it suggests the Board entered an order or decision in the appeal, is simply wrong. The record shows 2

5 Holloway filed an action for a writ of mandamus compelling Appellants to proceed with a hearing on the appeal filed by him challenging the termination of his employment. Both Holloway and the City Defendants filed motions for summary judgment. The only issue raised in those motions was whether Holloway was entitled to file an appeal with the Board. Holloway contended he had the right to file such an appeal by virtue of the City Charter. The City contended that a 2006 ordinance took away his right to appeal. No claim was made by the City Defendants that Holloway should have filed an appeal from the Board or that he had an adequate remedy at law. The Common Pleas Court agreed with the City, holding that the ordinance transformed Holloway into an "exempt" employee who could not appeal to the Personnel Appeals Board. Holloway appealed to the Court of Appeals. As in the court below, the only issue raised or argued in the Court of Appeals was whether Holloway was entitled to file an appeal with the Board or whether a 2006 ordinance took away that right to appeal. Again, no claim was made by the City Defendants that Holloway could have filed an appeal from the Board or that he had an adequate remedy at law. The Court of Appeals agreed with Holloway, holding that the ordinance could not take away Holloway's right, granted by the Charter, to appeal to the Personnel Appeals Board. Appellants apparently have conceded that Holloway had the right to appeal to the Board. They do not contend in this Court that the Court of Appeals erred in this respect. Instead, Appellants argue only that a writ of mandamus should not be issued when the relator has an that at no time did the Board malce an order or decision and provide written notice of that order or decision to Holloway. 3

6 adequate remedy at law through a R.C appeal. ARGUMENT APPELLANTS' PROPOSITION OF LAW HAS NO APPLICATION TO THIS CASE There is no merit to Appellants' case for two reasons. First, the Board failed to take any action, including entering a final order, so Holloway had no adequate remedy at law. An appeal does not constitute an adequate remedy at law if there is no order from which an appeal can be taken. Second, Appellants have waived any arguments they may have regarding an adequate remedy at law by failing to raise those arguments in the courts below. AN APPEAL PURSUANT TO CHAPTER 2506 DOES NOT CONSTITUTE AN ADEQUATE REMEDY AT LAW WHEN THERE IS NO FINAL ORDER FROM WHICH AN APPEAL CAN BE TAKEN An appeal pursuant to Revised Code Chapters 2505 and 2506 from a board to the common pleas court can be filed "After the entry of a final order of an administrative officer, agency, board, department, tribunal, commission, or other instrumentality." R.C It is obvious that the final order must be in some written form; a final order cannot be entered unless it is in writing. See, e.g., Talbut v. Perrysburg (1991), 72 Ohio App.3d 475, 478, 594 N.E.2d All of the cases cited by Appellants involve orders that were entered by the administrative agency or board. In cases such as State ex rel. Marshall v. Civil Service Commission of Columbus (1968), 14 Ohio St.2d 226, 237 N.E.2d 392, and State ex rel. Kronenberger-Fodor Bldg. Co. v. City of Parma (1973), 34 Ohio St.2d 222, 297 N.E.2d 525, there was a final written order entered by the agency. In these cases, the affected party had something that could be 4

7 appealed.3 In contrast, here Holloway had no final order from the Board and nothing that could be appealed. State ex rel. Rieke v. Hausrod (1979), 59 Ohio St.2d 48, 391 N.E.2d 736, is dispositive of this matter. In that case, this Court held that no administrative appeal, pursuant to R.C , was available to the employee because no quasi-judicial proceeding had been conducted by the local civil service commission. Because no appeal was available, there was no adequate remedy at law. The only difference between this case and State ex rel. Rieke v. Hausrod is that in Rieke the commission entered what arguably could be called a final order. That was not done here. Appellant seeks to distinguish State ex rel. Rieke v. Hausrod by claiming that changes to Ohio law "have reduced the formality of journal entries for local administrative actions." Memorandum in Support of Jurisdiction, p. 5. But a written order still has to be entered by the agency or board, something that was not done here. Since no such order was entered, Holloway had no adequate remedy at law. APPELLANTS DID NOT PRESENT THE ISSUE IN THE COURTS BELOW AND HAVE THEREFORE WAIVED THE ISSUE As noted, Appellants never raised the adequate remedy at law claim in the lower courts. "Reviewing courts do not consider questions that have not been presented to the court whose judgment is sought to be reversed." State ex rel. BSW Development Group v. City of Dayton, 83 Ohio St.3d 338, 345, 1998-Ohio-287, 699 N.E.2d Appellants' argument that Holloway had an adequate remedy at law was never raised, presented to, or argued in the common pleas 'R.C provides that a notice of appeal "shall designate, in the case of an administrative-related appeal, the final order appealed from." It is obvious that a final order cannot be designated if there is in fact no final order. 5

8 court or the court of appeals. Appellants have waived this claim. See State ex rel. Mora v. Wilkinson, 105 Ohio St.3d 272, 2005-Ohio N.E.2d 1000; State ex rel. Hawthorn v. Russell, 107 Ohio St.3d 269, 2005-Ohio-6431, 838 N.E.2d 666; State ex rel. Hilltop Basic Resources, Inc. v. City of Cincinnati, 118 Ohio St.3d 131, 2008-Ohio-1966; State ex rel. Porter v. Cleveland Dept. of Pub. Safety, 84 Ohio St.3d 258, 259, 1998-Ohio-539, 703 N.E.2d 308; and State ex rel. Chagrin Falls v. Geauga Cty. Bd. of Commrs., 96 Ohio St.3d 400, 403, 2002-Ohio-4906, 775 N.E.2d 512. There is no reason to accept jurisdiction in this case just to consider a claim that has been waived. CONCLUSION This Court should decline jurisdiction of the appeal. Respectfully submitted, Henry A. Arr^ett ( ) Livorno and F^mett Co., LPA 1335 Dublin Road, Suite 108-B Columbus, Ohio Tel: (614) Fax: (614) hem-yamettglivornoandarnett.com COUNSEL FOR APPELLEE, STATE OF OHIO, ex rel. JOHNNY HOLLOWAY, JR 6

9 CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing memorandum was served this day of December, 2010, by regular U.S. mail upon the following: Richard D. Schuster Michael J. Hendershot VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio and Matthew D. Stokely Julie C. Hammond PICKREL, SCHAEFFER & EBELING, L.P.A Kettering Tower Dayton, Ohio a. Henry A. A nett ( ) 7