Jul, IN THE SUPREME COURT OF OHIO. STATE OF OHIO, ex rel. JOHN MANLEY. Case No

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1 ^ IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel. JOHN MANLEY Case No Plaintiff-Appellant, V. SHERRI BEVAN WALSH, et al. Defendants-Appellees. On Appeal from the Summit County Court of Appeals Ninth Appellate District Court of Appeals Case CA APPENDIX TO AI'PEAL BRIEF OF APPELLANT JOHN MANLEY TIMOTHY N. TOMA (# ) (Counsel of Record) gal..com STEPHEN S. ELLSESSER (# ) TONIA & ASSOCIATES, L.P.A., INC Chardon Road #100 Willoughby Hills, Ohio (440) x 215 Fax: (440) Counsel for Appellant John Manley MARVIN D. EVANS (# )(Coun.sel of Record) Assistant Prosecuting Attorney Summit County, Ohio SHERRI BEVAN WALSH (# ) Prosecuting Attorney $ 53 University Avenue, 61h Floor Akron, Ohio (330) Fax: (330) j ^s ;2 }S:..S.3S.V r': fj U U %^'^% 4?VIRE{yEE ^.i001% ^^' OHI3 Summit County Prosecutor and Summit County ^s^y ^ -^ a. ^1 Jul, `; 0 s^ ^ i8 p 3B e':.d

2 IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel. JOHN MANLEY Case No. 1 0 AZ" Plaintiff-Appellant, V. SHERRI BEVAN WALSH, et al. Defendants-Appellees. On Appeal from the Summit County Court of Appeals Ninth Appellate District Court of Appeals Case CA NOTICE OF APPEAL OF APPELLANT JOHN MANLEY TIMOTHY N. TOMA (# )(Counsel of Record) toma@tomalegal.com STEPHEN S. ELLSESSER (# ) sellsesserotomalegal.com TOMA & ASSOCIATES, L.P.A., INC Chardon Road #100 Willoughby Hills, Ohio (440) x 215 Fax: (440) Counsel for Appellant John Manley ^ MARVIN D. EVANS (# )(Counsel of Record) Assistant Prosecuting Attorney Summit County, Ohio SHERRI BEVAN WALSH (# ) Prosecuting Attorney 53 University Avenue, 6th Floor Akron, Ohio Street (330) Fax: (330) mevansftrosecutor.sum.mitoh.net ^,AY 3 1 wtri-ff s Summit County Prosecutor and Summit County MAY APPENDIX A 1,^^^^ ^ ' ('L' af t^c^jkf SUPREdViE. COUR a OF OH(D CLERK OF COURT SUPREME CUURI OF t

3 Notice of Appeal of Appellant John Manley Appellant John Manley gives notice of appeal to the Supreme Court of Ohio f7rom the fournal Entry of the Summit County Court of Appeals, Ninth Appellate District, entered in State of Olzio ex el. Manley v. Walsh, et al., Court of Appeals Case CA , on May 22, 2013, a copy of which is attached. This case is an Appeal of Right pursuant to S.Ct. Prac. Rule 5.01(A)(3), as it involves a case that originated in the court of appeals. Respectfully submitted, TIMOTHY N. TOMA (# ) toma@tomale g al.com STEPHEN S. ELLSESSER (# ) sellsesser@tomalegal.com Attorneys for Appellant John Manley TOMA & ASSOCIATES, L.P.A., INC Chardon Road #100 Willoughby Hills, Ohio (440) x 215 Fax: (440)

4 CERTIFICATE OF SERVICE A copy of this Notice of Appeal was sent by ordinary U.S. Mail to: MARVIN D. EVANS, Assistant Prosecuting Attorney, Surnmit Count'. _-,-^ 3- _ Prosecutor's ^ Office, 53 Universi Avenue, 6th Floor, Akron, day Ohio this da ^y of May, _ ^. TIMOTHY N. TOMA (# ) Attorney for Appellant 3

5 I STATE OF OHIO I COUNTY OF SUMMIT )ss: 3r ^1! `t^^,ll.ra r~ ': ;913 fl1t1{ 2 G r` 10..^+) IN THE COURT OF APPEALS NINTH JUDICL4L DISTRICT STATE OF OHIO ex 3^Ok^;^,^i MANLEY C.A. No Relator V. SHERRI BEVAN WALSH, et al. Respondents JOURNAL ENTRY J-ohn Manley filed a petition for a writ of mandamus against Summit County Prosecutor Sherri Bevan Walsh and Summit County. This Court set a dispositive I motion schedule, and the matter is now before the Court for consideration of the parties' I respective motions for summary judgment. For the reasons that follow, we graiit Summit County and Prosecutor Walsh's motion for summary judgment and deny Mr. Manley's motion for summary judgment. Prosecutor Walsh hired Mr. Manley as an assistant prosecuting attorney in At that time, and until January 2003, Attorney John Quinn served as Chief Assistant Prosecuting Attorney for the Civil Division. That January, Mr. Quinn took office as Judge of the Summit County Court of Common Pleas, Domestic Relations Division. Mr. Manley expressed interest in the position that he vacated, as did Attomey Sandy Rubino. Prosecutor Walsh promoted both men, giving Mr. Manley supervisory responsibility over the Civil Division and Mr. Riibino supervisory responsibility over the Tax Division. Mr. Manley received a significant wage increase as a result, but later APPENDIX B

6 Journal Entry, C.A. No Page 2 of 6 discovered that Prosecutor Walsh was not paying him as much as Mr. Quinn had earned during his tenure. Mr. Manley filed a petition for a writ of mandamus to compel Prosecutor Walsh to pay him back pay for the period of time from his promotion to the termination of his employment. Specifically, he has argued that he was entitled to be paid at least the minimum amount specified in the Summit County Ordinances for the job classification that Mr. Quinn held. The standard for evaluating a petition for a writ of mandamus is well established: the relator must establish a clear legal right to the relief requested, a corresponding clear legal duty on behalf of the respondent to provide the relief, and lack of an adequate remedy in the ordinary course of the law. State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, at T, 8. For example, courts have determined that mandamus is an appropriate remedy for employees who seek back pay after having established that they were wrongfully excluded from their employment or wrongfully classified under Ohio law. See State ex rel. Chavis v. Sycanaore City Sch. Dist. Bd. of Edn., 71 Oliio St.3d 26 (1994); State ex rel. Ullmann v. Hay, 10th Dist. No. 43A.T'-299, 2044-Ohio In a narrow line of cases, the Ohio Supreme Court has also concluded that a writ of mandamus may issue to compel payment of wages under local ordinances. See, e.g., State ex rel. Mun. Constr. Equip. Operators' LaUor Council, 114 Ohio St.3d 183, Ohio , at T and State ex rel..internatl. Union of Operating Engineer s v. Cleveland, 62 Ohio St.3d 537 (1992) ("the Cleveland cases") (addressing city workers' right to prevailing wages under the city charter in the absence of a collective bargaining

7 Journal Entry, C.A. No Page 3 of 6 agreement, under R.C ). But in every instance, "the right to relief must be clear[.]" State ex rel. Madden v. Windham Exempted Village Sch. Dist., 42 Ohio St.3d 86, 88 (1989). See also State ex rel. Mun. Constr. Equip. Operators' Labor Council, 2007-Ohio-3831, at 80. It is at this point that this case is distinguishable. In the Cleveland cases, a labor union sought a writ of mandamus to compel the City of Cleveland to pay the difference between prevailing wages and their actual wages paid. Id. at ' 1.. The charter provisions at issue defined trade classifications with specificity and established pay rates for the employees "in accordance with the prevailing rates of salary or compensation for such services." Id. at 3. Over time, however, the City stopped paying the prevailing wage. Id. at 4. In an earlier case, the Supreme Court issued a writ of mandamus compelling the City to comply with its charter provision requiring prevailing wages because the employees at issue were not represented by a labor organization. Id. at 7. In a series of cases that followed, the parties litigated a web of issues related to whether the union was the employees' representative and, if so, whether it could negotiate lower wage rates; whether under R.C. Chapter 4117, the employees' exclusive remedy fell within the jurisdiction of the State Employment Relations Board; and when the union was certified as the employees' exclusive representative for purposes of collective bargairiing. See e.g. Id. at After reviewing the history of the case, the Supreme Court narrowed the issue before it to a consideration of whether the employees were entitled to be paid the prevailing wage, as provided by the charter, in the years before the parties ultimately negotiated a collective bargaining agreernent. Id. at In so doing, the Court noted its decision in an earlier case that if the employees "prevail[ed] before SERB on

8 Journal Entry, C.A. No Page 4 of 6 ^their claim that their wages did not result from collective bargaining, then the city charter controls." Id., quoting Consolo v. Cleveland, 103 Ohio St.3d 362, 2004-Ohio- 5389, 22. The composition of the prevailing wage rates was not disputed. Id. at T -52. It was in this context that the Supreme Court concluded that the relators had a clear legal right to be awarded back pay commensurate with prevailing wages, as provided by the charter. Id, at 69. That result is consistent with the principle that mandamus is "a writ to compel action by, not to give [a] remedy against, the individual officer, for injury resulting from an imperfect or improper action." State ex rel. Libbey-Owens-Ford Glass Co. v. Indus. Comm. Of Ohio, 162 Ohio St. 30, 307 (1954). It follows that in every instance, "the right to relief * * * must be clear and the burden of establishing such right is on the relator. State ex a el. McGas-vey v. Zeigler, 62 Ohio St.2d 320 (1980). "Mandamus and prohibition are extraordinary remedies, to be issued with great caution and discretion and only when the way is clear[] * * * to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station." (intemal citations omitted.) State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 166 (1977). A court cannot create the legal duty that the relator seeks to enforce in mandamus. Davis v. State ex rel..pecsok, 130 Ohio St. 411 (1936), paragraph one of the syllabus Because mandamus is an extraordinary writ, Mr. Manley bore the burden, in this case, of demonstrating both a duty on the part of Prosecutor Walsh and a right on his part that is clear. Mr. Manley argues that Prosecutor Walsh improperly classified him, that his job duties were the equivalent of a higher-classified employee, and that had her actions regarding his employment not been imperfect or improper, he would have fallen

9 Journal Entry, C.A. No Page 5 of 6 within :a higher pay classification. Thus, Mr. Manley does not seek to compel the exercise of a clear legal duty, as in the Cleveland cases, but to obtain "[a] remedy against" Prosecutor Walsh "for injury resulting from an imperfect or improper action." Libbey-Owens-Ford Glass Co, 162 Ohio St. at 307. In other words, Mr. Manley is! employing mandamus as the means of establishing a legal duty, as opposed to compelling the enforcement of an already existing duty. Mandamus may be the appropriate remedy for a public employee to claim entitlement to wages granted by statute or ordinance if the right to relief is clear and the amount established with certainty. State ex rel. Madden v. Windham Exempted Village School Dist. Bd. OfEduc., 42 Ohio St.3d 86, 88 (1989). Where the right to relief is not clear, declaratory judganent, for example, may provide a remedy for an employee to ask a.court to declare the rights of the parties. After the right is established, mandamus would provide a remedy, if necessary. "The ministerial act of making payment of money due a public employee may be compelled by mandamus where the public employee has a clear legal right to payment of the compensation, and the respondent public officer has a clear legal duty to perform the ministerial task of making such payment." State ex rel. Fenske v. McGoveM, 1 J. Ohio St.3d 129, 132 (1984). Here, Mr. Manley has not established that he had a clear right to be paid in accordance with his complaint, and that Prosecutor Walsh had a clear, corresponding duty. Accordingly, he has not carried his burden. Albeit for different reasons, we agree with Prosecutor Walsh that there is no genuine issue of material fact and that, even viewing the facts in the light most favorable to Mr. Manley, he cannot prevail on summary judgment. Mr. Manley's

10 Journal Entry, C.A. No Page 6 of 6 motion for summary judgment is, therefore, denied, and Summit County and Prosecutor Walsh's motion for summary judgment is granted. Judgment is entered in favor of Summit County and Prosecutor Walsh, and Mr. Manley's petition for a writ of mandamus is denied. All other outstanding motions are also denied. Costs are taxed to Mr. Manley. The clerk of courts is hereby directed to serve I upon all parties not in default notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B). Judge Concur: Moore, J. Whitmore, J.

11 Respectfully submitted, (# ) STEI'FJLNX. ELLSESSER (# ) sellsesser0tom.alegal. com Attorneys for Appellant John Manley TOMA & ASSOCIATES, L.P.A., INC Chardon Road #100 Willoughby Hills, Ohio (440) x 215 Fax: (440) CERTIFICATE OF SERVICE A copy of this Appeal Brief of Appellant John Manley was sent by ordinary U.S. Mail to: MARVIN D. EVANS, Assistant Prosecuting Attorney, Summit County Prosecutor's Office, 53 University Avenue, 6t Floor, Akron, Ohio this day of July, ^ 1:: -- (# ) Attorfey f^r Appellant 2