COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75303 STATE OF OHIO, EX REL. CITY : ORIGINAL ACTION OF CLEVELAND, ET AL. : : Relator : : JOURNAL ENTRY v. : AND : OPINION JUDGE JUDITH KILBANE-KOCH : : : Respondent : DATE OF JOURNALIZATION: DECEMBER 8, 1998 CHARACTER OF PROCEEDING: WRIT OF PROHIBITION JUDGMENT: Motion No. 00406 for Summary Judgment is Granted; Writ Dismissed. APPEARANCES: For Relator: For Respondent: MICHAEL J. ANGELO STEPHANIE TUBBS JONES, ESQ. THOMAS L. COLALUCA Cuyahoga County Prosecutor JOHNSON AND ANGELO 3600 Terminal Tower CAROL SHOCKLEY Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, J.: On October 1, 1998, the relators, the City of Cleveland and William Denihan, the City's Director of Public Safety, commenced this writ of prohibition action against the respondent, the Court of Common Pleas Cuyahoga County, Judge Judith Kilbane-Koch, to prohibit the respondent from proceeding further in the underlying case, State ex rel. Edward Lentz v. City of Cleveland, et al., Cuyahoga Common Pleas Court Case No. 366598. The relators also sought an alternative writ, which this court denied on October 1, 1998. On November 2, 1998, the respondent, through the Cuyahoga County Prosecutor, moved to dismiss or in the alternative for summary judgment. The relators never filed a response. For the following reasons, this court grants the respondent's dispositive motion and dismisses this writ action. FACTUAL BACKGROUND The underlying case concerns the appointment of Edward Lentz to the position of Patrol Officer with the City of Cleveland, specifically his immediate entry into the current class in the Cleveland Police Training Academy. On August 17, 1998, Mr. Denihan offered Mr. Lentz the position of Patrol Officer, conditioned on Mr. Lentz successfully completing the remaining selection procedures, including physical and psychological examinations. On September 15, 1998, Mr. Denihan removed Mr. Lentz from the eligibility list because he failed the psychological examination. On September 28, the Cleveland Civil Service Commission -3- reconsidered its earlier action and returned Mr. Lentz to the eligibility list. Nevertheless, Mr. Denihan refused to reappoint Mr. Lentz to the police academy. On September 29, 1998, Mr. Lentz commenced the underlying mandamus action to secure his police appointment. The respondent issued an alternative writ on September 30th to place Edward P. Lentz for immediate entry in the current class in the Cleveland Police Training Academy, which commenced on September 28, 1998, ***. (Sept. 30, 1998 entry in underlying case.) The respondent set the matter for hearing on October 2, 1998. The city and Mr. Denihan then filed this prohibition action. They argued that, pursuant to its Charter, the City of Cleveland vested sole and exclusive appointing authority in the Director of Public Safety for employment in the city police department; thus the respondent exceeded her judicial authority by usurping the director's exclusive authority. On October 1, 1998, this court, noting that the court of common pleas has jurisdiction in mandamus, denied the application for an alternative writ of prohibition. On October 2, 1998, the respondent in the underlying case granted the writ of mandamus. She ruled that it was patently clear the Relator, Edward Lentz, has a clear and apparent right to the appointment as a Patrol Officer with the City of Cleveland and that there is a clear duty on the part of the Safety Director to perform his ministerial duty to execute and sign the appointment letter. Respondent Safety Director has no valid legal excuse not to execute the letter of appointment. -4- DISCUSSION OF LAW The principles governing prohibition are well established. Its requisites are (1) the respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at law. State ex rel. Largent v. Fisher (1989), 43 Ohio St.3d 160, 540 N.E.2d 239. Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause which it is attempting to adjudicate or that the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe (1941), 138 Ohio St. 417, 35 N.E.2d 571, paragraph three of the syllabus. The writ will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction. State ex rel. Sparto v. Juvenile Court of Darke County (1950), 153 Ohio St. 64, 65, 90 N.E.2d 598. Furthermore, it should be used with great caution and not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas (1940), 137 Ohio St. 273, 28 N.E.2d 273; Reiss v. Columbus Municipal Court (App. 1956), 76 Ohio Law Abs. 141, 145 N.E.2d 447. Nevertheless, when a court is patently and unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel. Tilford v. Crush (1988), 39 Ohio St.3d 174, 529 N.E.2d 1245 and State ex rel. Csank v. Jaffe (1995), 107 Ohio App.3d 387. Absent such a patent and unambiguous lack of jurisdiction, however, a court having general jurisdiction -5- of the subject matter of an action has authority to determine its own jurisdiction. A party challenging the court's jurisdiction has an adequate remedy at law via appeal from the court's holding that it has jurisdiction. State ex rel. Rootstown Local School District Board of Education v. Portage County Court of Common Pleas (1997), 78 Ohio St.3d 489, 678 N.E.2d 1365 and State ex rel. Bradford v. Trumbull County Court (1992), 64 Ohio St.3d 502, 597 N.E.2d 116. An appellate court has discretion, moreover, in issuing the writ of prohibition. State ex rel. Gilligan v. Hoddinott (1973), 36 Ohio St.2d 127, 304 N.E.2d 382. The relators argue that the respondent exceeded her jurisdiction by usurping the exclusive authority of Mr. Denihan to make appointments to the police department. This contention is not persuasive. The respondent has jurisdiction in mandamus. R.C. 2731.02. Furthermore, a court may issue a writ of mandamus to correct an abuse of administrative discretion. State ex rel. Evans v. Columbus Department of Law (1998), 83 Ohio St.3d 174, 699 N.E.2d 60; State ex rel. Alben v. State Employment Relations Board (1996), 76 Ohio St.3d 133, 666 N.E.2d 1119; State ex rel. Great Lakes College, Inc. v. State Medical Board (1972), 29 Ohio St.2d 198, 280 N.E.2d 900; State ex rel. Gilder v. Industrial Commission of Ohio (1919), 100 Ohio St. 500, 127 N.E. 595; and State ex rel. Swartzlander v. State Teachers Retirement Board (1996), 117 Ohio App.3d 131, 690 N.E.2d 36. It is apparent that the claims in the underlying case assert either that the relators had a ministerial duty to appoint Mr. -6- Lentz to the police force or that the relators abused their discretion in not appointing Mr. Lentz. Either of these claims are remediable in mandamus, over which the respondent has jurisdiction. At the very least, the issue of abuse of administrative discretion was sufficiently before the trial court so that the respondent had authority to determine her own jurisdiction. Any error in determining jurisdiction or in the merits of the case has an adequate remedy at law through appeal. Prohibition, therefore, is not appropriate. The cases upon which the relators rely, moreover, are distinguishable and unpersuasive. State ex rel. Gilligan v. Hoddinott (1973), 36 Ohio St.2d 127, 304 N.E.2d 382, is probably the relators' strongest case. However, in that case the Supreme Court of Ohio reaffirmed the principle that mandamus could issue to correct an abuse of discretion by an administrative authority. The relators in Gilligan presented sufficient facts to establish that the governor did not abuse his discretion in closing the relevant parks. In the present case the relators did not establish such facts; indeed they did not even respond to the respondent's motion for summary judgment. Generally, in the other cases, e.g., Meyers v. City of Columbus (1995), 71 Ohio St.3d 603, 646 N.E.2d 173; State ex rel. Canada v. Phillips (1958), 168 Ohio St. 191, 151 N.E.2d 722; and Local 330 Akron Fire Fighters Association v. AFL- CIO V. Romanoski (1994), 68 Ohio St.3d 596, 629 N.E.2d 1044, the courts decided the cases on their merits rather than on whether the trial court had the raw jurisdiction to decide the case. Thus -7- these cases indicate that the relators have an adequate remedy at law through appeal. Finally, the respondent in her motion for summary judgment argued that a writ of prohibition should not issue in this case, because the respondent has jurisdiction in mandamus and the authority to determine her own jurisdiction, because appeal offers an adequate remedy and because a writ of prohibition should issue only in extraordinary circumstances and never in a doubtful case. The relators never disputed these arguments. Accordingly, the respondent's motion (No. 00406) for summary judgment is granted, and this case is dismissed. Relators to pay costs. JOSEPH J. NAHRA, P.J., and LEO M. SPELLACY, J., CONCUR. .