[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Schroeder v. Cleveland, Slip Opinion No. 2016-Ohio-8105.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-8105
   THE STATE EX REL. SCHROEDER ET AL. v. THE CITY OF CLEVELAND ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as State ex rel. Schroeder v. Cleveland, Slip Opinion No.
                                     2016-Ohio-8105.]
Mandamus—Relators had adequate remedy in ordinary course of law by way of
        intervention in declaratory-judgment case—Cause dismissed.
  (No. 2015-1831—Submitted August 30, 2016—Decided December 14, 2016.)
                                       IN MANDAMUS.
                                 _____________________
        Per Curiam.
        {¶ 1} Relators, 11 captains and 1 battalion chief in the Cleveland Fire
Department, filed this action in mandamus against respondents, the city of
Cleveland and its mayor, seeking immediate cessation of the noncompetitive
examination process that the city is currently using for promotion within the fire
department. The firefighters’ union challenged that process on the same grounds
in a declaratory-injunction action in the Cuyahoga County Court of Common Pleas.
                                SUPREME COURT OF OHIO




Relators filed a motion to intervene in that action but withdrew the motion after the
judge failed to rule on it.
        {¶ 2} The declaratory-judgment complaint requested relief almost identical
to the relief requested here. Relators therefore had an adequate remedy at law by
way of intervening in the declaratory judgment-case, precluding a writ of
mandamus here. We therefore dismiss relators’ action.
                              Facts and Procedural History
Background
        {¶ 3} Relators allege that each of them is eligible for promotion in the
Cleveland Fire Department but was deprived of the opportunity to take a
competitive promotional examination. Relators assert that a competitive exam
designed to test for merit and fitness for promotion is required by Article XV,
Section 10 of the Ohio Constitution, R.C. Chapter 124, Cleveland City Charter
Sections 126 and 128, and Cleveland Civil Service Commission Rules 4.60 and
4.70.
        {¶ 4} According to relators’ complaint, rather than comply with these
provisions, in March 2014, Cleveland created a noncompetitive examination
process, which relators describe as “highly unorthodox.” The process consisted of
the submission of an applicant’s resume and an interview by panel members who
varied in number depending on the day. Relators assert that they were denied
promotions to battalion chief or assistant chief after applying through this process.
Assn. of Cleveland Firefighters, Local 93 I.A.F.F. v. Cleveland
        {¶ 5} On March 20, 2014, the Association of Cleveland Firefighters, Union
Local 93 I.A.F.F., filed a complaint and a motion for a temporary restraining order
and preliminary injunction in the Cuyahoga County Court of Common Pleas,
seeking to stop the city from using the noncompetitive examination process for
promotion in the fire department.




                                           2
                                 January Term, 2016




        {¶ 6} After holding a hearing on the union’s motion, the trial court
dismissed the union’s claims sua sponte, concluding that the court lacked
jurisdiction in light of the union’s failure to exhaust its remedies under a collective-
bargaining agreement. The union appealed, and Cleveland cross-appealed. On
April 23, 2015, the Eighth District Court of Appeals reversed and remanded. Assn.
of Cleveland Firefighters, Local 93 I.A.F.F. v. Cleveland, 2015-Ohio-1538, 31
N.E.3d 1285 (8th Dist.).
        {¶ 7} In the meantime, between January and March 2015, Cleveland
promoted six fire captains to fill battalion-chief positions. These newly promoted
battalion chiefs never passed a competitive promotional exam, which relators assert
is required by law.
        {¶ 8} Following a hearing held upon remand from the court of appeals, the
trial court granted the union’s requested preliminary injunction and prohibited
Cleveland from administering its noncompetitive examination process for
promotion in the fire department. Between June 26 and September 15, 2015,
several interested parties filed motions to intervene in the case that the trial court
ultimately granted.
        {¶ 9} In the meantime, on September 8, 2015, relators filed their own
motion to intervene, and Cleveland filed a response in opposition. After the trial
court failed to rule on their motion, relators withdrew it on November 12, 2015.
        {¶ 10} In March 2016, the union and Cleveland each filed a motion for
summary judgment. After the parties had submitted briefs and evidence in this
case, on September 12, 2016, the trial court issued a judgment entry and opinion in
Assn. of Cleveland Firefighters dismissing the action.
The mandamus action
        {¶ 11} On November 13, 2015, one day after withdrawing their motion to
intervene in Assn. of Cleveland Firefighters, relators filed in this court a complaint
for a writ of mandamus. Relators assert in their complaint that they have a clear




                                           3
                              SUPREME COURT OF OHIO




legal right to require that Cleveland choose battalion chiefs and assistant chiefs
from among the three highest scores in a competitive promotional exam, that they
have no adequate remedy in the ordinary course of the law, and that Cleveland has
no lawful reason for refusing to offer a competitive exam or for filling the positions
with firefighters who do not rank among the top three scores in a competitive exam.
Relators request that this court order Cleveland to immediately offer a competitive
promotional exam to all firefighters who were eligible to sit for such a test when
the noncompetitive examination process was announced in March 2014, fill all
battalion-chief and assistant-chief positions available since March 2014 with
firefighters who rank in the top three of that competitive test, make those
promotions retroactive to the date each would have been effective if Cleveland had
complied with the law, and provide back pay and benefits to the firefighters
promoted under the new competitive process.
       {¶ 12} Cleveland filed a motion to dismiss, and relators filed a
memorandum in opposition. We denied the motion to dismiss and issued an
alternative writ. 145 Ohio St.3d 1454, 2016-Ohio-2807, 49 N.E.3d 317. The
parties have submitted evidence and briefs.
                                       Analysis
Mandamus
        {¶ 13} To be entitled to extraordinary relief in mandamus, relators must
establish a clear legal right to the requested relief, a clear legal duty on the part of
Cleveland to provide it, and the lack of an adequate 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. Relators must prove that they are entitled to the writ by clear and
convincing evidence. Id. at ¶ 13.
Adequate remedy at law
        {¶ 14} Cleveland argues that relators’ claims are similar to those asserted
by the firefighters’ union in Assn. of Cleveland Firefighters, the declaratory-




                                           4
                                January Term, 2016




judgment action that it filed in the common pleas court, and that intervention in that
case constituted an adequate remedy at law.
       {¶ 15} Relators here did move to intervene in Assn. of Cleveland
Firefighters. Their motion was not ruled on for more than two months, even though
other parties’ motions to intervene were filed after theirs and were granted.
Relators claim that their interests were not represented in the declaratory-injunction
action and that the trial court had “no intention of ruling on” their motion to
intervene. They also claim that Cleveland opposed their attempts to intervene at
every juncture in that case and that they lacked an adequate remedy by way of
intervention.
       {¶ 16} Relators argue that the trial court’s failures to rule on their motion to
intervene and to allow their counsel to participate in a status conference regarding
the possibility of mediation were not appealable. Relators further argue that they
would not have been allowed to participate in mediation, scheduled for November
19, 2015, and that their interests would not have been protected if the mediation
had proceeded without them. Relators therefore withdrew their motion to intervene
in Assn. of Cleveland Firefighters and filed this action instead.
       {¶ 17} Cleveland emphasizes that relators had a right to intervene in Assn.
of Cleveland Firefighters but did not choose to “join in [ ] the complaint filed by
their Union” and withdrew the motion to intervene that they had filed.
       {¶ 18} The general rule is that a pending declaratory-judgment action may
bar a mandamus action but only when intervention in the pending action is an
adequate remedy in the ordinary course of the law. State ex rel. Gilmour Realty,
Inc. v. Mayfield Hts., 119 Ohio St.3d 11, 2008-Ohio-3181, 891 N.E.2d 320, ¶ 16.
An alternative remedy is adequate only if it is “complete, beneficial, and speedy.”
State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009,
835 N.E.2d 1222, ¶ 41, citing State ex rel. Smith v. Cuyahoga Cty. Court of
Common Pleas, 106 Ohio St.3d 151, 2005-Ohio-4103, 832 N.E.2d 1206, ¶ 19.




                                          5
                                 SUPREME COURT OF OHIO




Even though an incomplete remedy by itself, a declaratory judgment may be an
adequate remedy if it is coupled with ancillary relief in the form of a mandatory
injunction. Id. at ¶ 42, citing State ex rel. Webb v. Bliss, 99 Ohio St.3d 166, 2003-
Ohio-3049, 789 N.E.2d 1102, ¶ 23.
        {¶ 19} The question here, therefore, is whether intervention in Assn. of
Cleveland Firefighters was an adequate remedy in the ordinary course of the law.
The complaint in that case shows that the union asked not only for declaratory and
injunctive relief but also for relief in mandamus.
        {¶ 20} More specifically, the union in Assn. of Cleveland Firefighters
challenged the noncompetitive examination process used by Cleveland as violating
Article XV, Section 10 of the Ohio Constitution, R.C. Chapter 124, sections 126
and 128 of the Cleveland Charter, and Cleveland Civil Service Commission Rules
4.60 and 4.70. The union requested a declaratory judgment that all vacancies in the
promoted ranks created since the expiration of the last civil-service-eligibility list,
as well as all future vacancies, be filled by a competitive examination process and
that the noncompetitive process is unconstitutional and in violation of the law. The
union requested preliminary and permanent injunctions prohibiting the
administration of the noncompetitive process for promotions and that the status quo
be maintained by prohibiting any future promotions from taking place without a
competitive exam.        And the union requested a writ of mandamus ordering
Cleveland to immediately administer competitive exams, certify eligibility lists to
restore the promotional cycle, and fill all promotional vacancies from that list.1



1
  The request for a writ of mandamus appears in the amended complaint; the original complaint,
filed in March 2014, was not submitted as evidence in this case. Although the trial court did not
grant leave to amend the complaint until December 10, 2015 (nearly one month after relators filed
their complaint in this case), the union in Assn. of Cleveland Firefighters had already filed on
September 10, 2015, a copy of its proposed complaint as an attachment to its motion to amend the
original complaint.




                                               6
                                January Term, 2016




       {¶ 21} Relators challenge the noncompetitive examination process on the
same grounds as the union did in Assn. of Cleveland Firefighters and, like the union
in that case, seek the immediate return of the competitive examination process.
Relators cite the same constitutional, statutory, and local-regulatory provisions of
the law in support of their position as the union did in Assn. of Cleveland
Firefighters. The only relief requested here that was not specifically requested in
the common pleas case is back pay and benefits to firefighters who were eligible to
be promoted under the competitive exams but who were not promoted under the
noncompetitive scheme. However, a party wishing to intervene is required to
provide “a pleading, as defined in Civ.R. 7(A), setting forth the claim or defense
for which intervention is sought.” Civ.R. 24(C). Relators here could have asserted
in a complaint accompanying their motion to intervene in Assn. of Cleveland
Firefighters any additional claims they wished to assert in that case, including a
claim for back pay and benefits. Thus, relators could have intervened in the Assn.
of Cleveland Firefighters declaratory-judgment action and, if successful, obtained
all the relief they seek here. Assn. of Cleveland Firefighters therefore provided
complete relief; intervention in that case would have constituted an adequate
remedy in the ordinary course of the law, precluding a writ of mandamus here.
       {¶ 22} Relators assert that Cleveland has attempted to thwart every effort
they made to intervene in that case. They emphasize that the trial court did not rule
on their motion to intervene and had scheduled mediation without having allowed
their intervention.
       {¶ 23} But relators could have filed an action in procedendo to force the
trial court to grant or deny their motion to intervene. If, as they assert, they had a
substantial right that was not otherwise represented in the litigation and that “in
effect determine[d] the action and prevent[ed] a judgment” on their claims, a denial
of the motion to intervene would have been an appealable order.                  R.C.




                                          7
                             SUPREME COURT OF OHIO




2505.02(B)(1); Southside Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209,
2007-Ohio-6665, 878 N.E.2d 1048, ¶ 7-8.
        {¶ 24} Moreover, the fact that the union’s claims in Assn. of Cleveland
Firefighters have been dismissed is immaterial.         If an adequate remedy was
available but the party failed to take advantage of it or is time-barred from using it,
mandamus will not lie to substitute for that remedy. State ex rel. Johnson v.
Cleveland Hts./Univ. Hts. School Dist. Bd. of Edn., 73 Ohio St.3d 189, 193, 652
N.E.2d 750 (1995).
                                     Conclusion
        {¶ 25} Relators had an adequate remedy in the ordinary course of the law
by way of intervention in Assn. of Cleveland Firefighters. We therefore dismiss
this action on that basis.
                                                                    Cause dismissed.
        O’CONNOR, C.J., and PFEIFER, LANZINGER, and O’NEILL, JJ., concur.
        O’DONNELL, J., dissents, with an opinion joined by KENNEDY and FRENCH,
JJ.
                                _________________
        O’DONNELL, J., dissenting.
        {¶ 26} Respectfully, I dissent.
        {¶ 27} In this case, 11 captains and 1 battalion chief in the Cleveland Fire
Department seek a writ of mandamus to compel the city of Cleveland to determine
their eligibility for promotion in the fire department through competitive
promotional examinations.
        {¶ 28} The threshold question in this case is whether relators had an
adequate remedy at law precluding us from issuing a writ of mandamus. The
majority concludes that an adequate remedy existed, because relators had moved to
intervene in a declaratory judgment action brought by the Association of Cleveland
Firefighters, Union Local 93 I.A.F.F., which raised similar claims in the Cuyahoga




                                          8
                               January Term, 2016




County Common Pleas Court. It further notes that even though the trial court failed
to rule on that motion, relators nonetheless had an adequate remedy because they
could have sought a writ of procedendo to compel the trial court to grant or deny
intervention.
       {¶ 29} Filing a motion to intervene in the union’s declaratory judgment
action did not provide an adequate remedy at law.
       {¶ 30} First, the trial court never ruled on the motion to intervene, and
although relators could have sought a writ of procedendo, a great writ is an
extraordinary remedy that will lie only if there is no adequate remedy in the
ordinary course of the law, State ex rel. St. Sava Serbian Orthodox Church of
Cleveland v. Riley, 36 Ohio St.2d 171, 174, 305 N.E.2d 808 (1973); State ex rel.
Gopp v. Wiest, 141 Ohio St.3d 88, 2014-Ohio-4557, 21 N.E.3d 1052, ¶ 3. And,
while the majority relies on Southside Community Dev. Corp. v. Levin, 116 Ohio
St.3d 1209, 2007-Ohio-6665, 878 N.E.2d 1048, for the proposition that denial of
the motion to intervene would have been an appealable order, Southside is not
applicable because the trial court failed to rule on the motion to intervene, and
therefore no order ever existed from which to appeal.
       {¶ 31} Second, the union’s declaratory judgment action—which relators
were never parties to—was not an adequate remedy barring mandamus relief. As
this court explained in State ex rel. Gen. Motors Corp. v. Indus. Comm., 117 Ohio
St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, “[s]tanding alone, a declaratory
judgment cannot compel a government official to perform a specific legal duty,”
and therefore “a declaratory judgment must be accompanied with injunctive relief
in the form of a mandatory injunction in order to successfully compel the
government to act.” Id. at ¶ 10.
       {¶ 32} Contrary to the assertion in the majority’s opinion, the union’s
complaint did not seek a mandatory injunction compelling official action. Rather,
it sought a declaratory judgment that all vacancies in the promoted ranks created




                                        9
                              SUPREME COURT OF OHIO




since the expiration of the last civil-service-eligibility list and all future vacancies
must be filled by a competitive examination process and, in addition, a declaration
that the noncompetitive process violates the Ohio Constitution, R.C. Chapter 124,
city ordinances, and civil service rules. It also sought a preliminary and permanent
injunction to prohibit the city from giving promotions without administering
competitive examinations and ranking candidates for promotion by their scores.
       {¶ 33} A mandatory injunction is “an extraordinary remedy that compels
the defendant to restore a party’s rights through an affirmative action.” State ex rel.
Gen. Motors Corp. at ¶ 12.        But here, the union requested preliminary and
permanent injunctions, which are prohibitory injunctions that “enjoin[ ] a defendant
from performing the challenged acts in the future,” id. Thus, the majority blurs the
distinction between a prohibitory and a mandatory injunction: “a prohibitory
injunction is used to prevent a future injury, but a mandatory injunction is used to
remedy past injuries,” id.
       {¶ 34} As we explained in State ex rel. Gilmour Realty, Inc. v. Mayfield
Hts., 119 Ohio St.3d 11, 2008-Ohio-3181, 891 N.E.2d 320, ¶ 16, a pending
declaratory judgment action does not preclude a mandamus action “when—as
here—the pending declaratory judgment action does not provide an adequate
remedy.” In the circumstances of this case, a declaratory judgment action would
not be a complete remedy unless coupled with ancillary relief in the nature of a
mandatory injunction. Because the union’s declaratory judgment action did not
seek a mandatory injunction, it was not a complete remedy, and therefore it cannot
“constitute an adequate remedy so as to preclude the requested extraordinary relief
in mandamus,” id. at ¶ 14.
       {¶ 35} At the time relators filed their action in this court, the union’s
complaint apparently had not yet been amended to add the count seeking a writ of
mandamus to compel action by the city. Yet the majority asserts that relators’
motion to intervene was nonetheless an adequate remedy in the ordinary course of




                                          10
                                January Term, 2016




law, because the claims presented in the subsequently amended complaint would
have afforded an adequate remedy. Whether or not that hypothesis is true, the
reality is that relators were never made parties to the common pleas court action
and never sought to intervene after the union subsequently sought a writ of
mandamus because they became litigants in this original action, and neither the
majority nor the city points to any authority for the proposition that relators were
required to intervene in the union’s action seeking a writ of mandamus in order to
protect their rights.
        {¶ 36} In addition, filing a motion to intervene in an action seeking a writ
of mandamus is not an adequate remedy in the ordinary course of law, because a
great writ is an extraordinary remedy, not an ordinary one. State ex rel. Taylor v.
Glasser, 50 Ohio St.2d 165, 166, 364 N.E.2d 1 (1977). As we explained in State
ex rel. Pressley v. Indus. Commission, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967),


        The extraordinary remedies of statutory mandamus and statutory
        mandatory injunction are not plain and adequate remedies in the
        ordinary course of the law and the availability of these extraordinary
        remedies in the Common Pleas Court is not a ground upon which
        the Supreme Court can adopt or adhere to a rule that it is error for
        the Supreme Court or the Court of Appeals to exercise jurisdiction
        in a mandamus action filed originally therein.


Id. at paragraph six of the syllabus.
        {¶ 37} If relators’ right to file a mandamus action in the common pleas court
does not preclude them from bringing a mandamus action in this court, then the
right to seek intervention in a third party’s action when the claimant has sought but
not yet been granted leave to amend the complaint to add a claim for mandamus
relief is likewise not an adequate remedy in the ordinary course of law.




                                         11
                              SUPREME COURT OF OHIO




        {¶ 38} For these reasons, relators’ motion to intervene in the union’s
declaratory judgment action was not an adequate remedy in the ordinary course of
law and does not preclude them from seeking mandamus relief in this court. But
to establish entitlement to the requested writ of mandamus, relators also needed to
establish a clear legal right to the relief requested and a clear legal duty on the part
of the city to provide it. State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-
Ohio-4563, 31 N.E.3d 608, ¶ 18. Relators met that burden.
        {¶ 39} Article XV, Section 10 of the Ohio Constitution requires promotions
in the city’s civil service to be “made according to merit and fitness,” which is “to
be ascertained, as far as practicable, by competitive examinations,” and it mandates
the passage of laws “providing for the enforcement of this provision.” Pursuant to
this authority, the General Assembly enacted R.C. 124.45, which requires that
“[v]acancies in positions above the rank of regular fire fighter in a fire department
shall be filled by competitive promotional examinations.” The legislature’s use of
the word “shall” is understood to mean a mandatory obligation, and it is not left to
the discretion of the city to decide the manner in which promotions in the fire
department should be made.
        {¶ 40} And the city’s own civil service rules provide that noncompetitive
examinations may be used only for positions requiring “peculiar and exceptional
qualifications of a scientific, managerial, professional, or educational character.”
Cleveland Civil Service Rule 4.60. The positions of assistant chief and battalion
chief do not fall within those categories. Nor does the position of fire chief, because
the city’s assistant public safety director, Edward Eckart Jr., admitted that the city
planned to fill the position of fire chief through a competitive examination.
        {¶ 41} The noncompetitive process adopted by the city to make promotions
to the positions of assistant chief and battalion chief is contrary to the Ohio
Constitution, violates R.C. 124.45 and Cleveland Civil Service Rule 4.60, and
therefore is not the vehicle to be used to fill vacancies in these positions.




                                          12
                                January Term, 2016




        {¶ 42} Accordingly, relators did not have an adequate remedy in the
ordinary course of law by intervening in the common pleas court action, and the
Ohio Constitution, R.C. 124.45, and the city’s civil services rules required the city
to determine eligibility for promotion in the Cleveland Fire Department through
competitive promotional examinations.
        {¶ 43} Therefore, I would grant the requested writ of mandamus.
        KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
                               _________________
        The Lefton Group, L.L.C., Karen C. Lefton, and Timothy D. Smith, for
relators.
        Barbara A. Langhenry, Cleveland Director of Law, and Annette G. Butler
and Aikaterini Houston, Assistant Directors of Law, for respondents.
                               _________________




                                         13
