Court of Appeals of Ohio, Eighth District, Cuyahoga
STATE OF OHIO, EX REL. S.P., ET AL. RELATORS
THE CITY OF CLEVELAND, ET AL. RESPONDENTS
of Mandamus Motion No. 508923 Order No. 517146
ATTORNEYS FOR RELATORS Abigail C. Staudt Maria A. Smith Eric
S. Zell Legal Aid Society of Cleveland, Rebecca Maurer Maurer
ATTORNEYS FOR RESPONDENTS Barbara A. Langhenry Director of
Law City of Cleveland By: Elizabeth M. Crook Shirley A.
Tomasello Assistant Directors of Law
JOURNAL ENTRY AND OPINION
The relators, S.P., M.P., and N.P. (the "parents"
of S.P.), have filed a complaint for a writ of mandamus. The
relators allege that the respondents, that consist of the
city of Cleveland, Mayor Frank G. Jackson, and Merle Gordon,
director of the Cleveland Department of Public Health, have
violated duties and procedures regarding lead inspection,
abatement, and enforcement procedures imposed by R.C. Chapter
3742 and Ohio Adm.Code 3701-30-01, et seq. The respondents
have filed a motion for summary judgment. We grant the
respondents' motion for summary judgment in part and deny
the motion for summary judgment in part.
The facts that are pertinent to this original action for a
writ of mandamus are gleaned from the respondents' motion
for summary judgment, the briefs, the affidavits, and the
exhibits filed by the parties.
In October 2016, S.P. was tested for lead poisoning in blood
levels at the age of 18 months, and found to have elevated
lead blood levels. On November 11, 2016, S.P.'s elevated
blood levels triggered a lead level investigation of the
residence, a rental property, where S.P. resided. The lead
level investigation test results of S.P. were received by the
respondents on November 23, 2016, and a lead risk assessment
report was completed on December 7, 2016.
On March 14, 2017, the respondents sent a lead hazard control
order, by certified mail, to the owner of the residence where
S.P. had resided prior to the determination of her elevated
lead blood levels. On April 24, 2017, the United States Post
Office returned the March 14, 2017 lead hazard control order
to the respondents as undelivered. On March 18, 2017, the
relators filed a complaint for a writ of mandamus. On April
24, 2017, the respondents resent the lead hazard control
order, by regular mail, to the owner of the residence where
S.P. had resided prior to the determination of elevated lead
blood levels. The owner received the lead hazard control
order on April 29, 2017.
On June 1, 2017, S.P. and her parents vacated the lead
contaminated residence. On October 25, 2017, and November 6,
2017, the owner of the lead contaminated residence requested
two extensions of time in which to comply with the lead
hazard control order and effect lead abatement. On January
29, 2018, the respondents determined that the owner of the
lead contaminated residence had failed to effect lead
abatement that resulted in the issuance of a notice of
noncompliance, an order to vacate the lead contaminated
residence, and the placement of lead warning hazard signs at
the front and back of the residence.
Pursuant to an order issued by this court on January 9, 2018,
the parties were ordered to certify the status of the
original action for a writ of mandamus. On February 2, 2018,
the parties filed their respective status certifications. On
March 5, 2018, the relators filed a supplemental
certification of the status of their complaint for a writ of
Standards for Issuing a Writ of Mandamus
In order for this court to issue a writ of mandamus, the
relators are required to establish: (1) the relators possess
a clear legal right to the requested relief, (2) the
respondents possess a clear duty to perform the requested
relief, and (3) there must exist no other adequate remedy in
the ordinary course of the law. State ex rel Ney v.
Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).
Furthermore, if the relators possess or possessed an adequate
remedy, regardless of whether it was used, relief in mandamus
is precluded. State ex rel. Tran v. McGrath , 78
Ohio St.3d 45, 676 N.E.2d 108 (1997).
Moreover, mandamus is an extraordinary remedy that is to be
exercised with great caution and issued only when the right
and duty is absolutely clear. Mandamus will not issue in
doubtful cases. State ex rel. Taylor v. Glasser, 50
Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer
v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14
(1953); State ex rel. Connole v. Cleveland Bd. of
Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (1993);
State ex rel. Dayton-Oakwood Press v. Dissinger, 32
Ohio Law Abs. 308, 1940 Ohio App. LEXIS 1173 (1940). The
Supreme Court of Ohio has also established that the facts
submitted in support of the complaint for mandamus and the
proof produced must be plain, clear, and convincing before a
court is justified in using the "strong arm of the
law" and granting a writ of mandamus. State ex rel.
Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141,
161, 228 N.E.2d 631 (1967).
In addition to the aforesaid basic requirements that must be
established by the relators, the following principles of law
guide this court's determination as to whether a writ of
mandamus should be issued on behalf of the relators:
A) Mandamus lies only to enforce the performance of a
ministerial duty or act. A ministerial duty or act has been
defined as one that a person performs in a given state of
facts in a prescribed manner in the obedience to the mandate
of legal authority, without regard to, or the exercise of,
his or her own judgment upon the propriety of the act being
done. The duty to be enforced must be specific and definite,
clear and concise, must be specifically enjoined by law, must
be incident to the office, trust, or station that the
respondent holds, and it may not be one of a general
character that is left to the respondent's discretion.
State ex rel. Neal, Jr. v. Moyer, 3d Dist. Allen No.
1-84-44, 1985 Ohio App. LEXIS 5380 (Jan. 9, 1985). The object
of a writ of mandamus is to compel an officer to do a
specific act required by law, and not to compel the general
enforcement of the mandate of the law.
[A]nd while a court might well hold that the general course
of conduct contended for by the relator, and which he seeks
to have the plaintiff commanded to follow, is the course of
conduct which the law requires, and, therefore, the course
which the [respondent] is in duty bound to pursue, yet a
court will not employ the extraordinary writ of mandamus to
supplant every other form of remedy, for if it be employed to
compel the observance of law generally, the court would
thereby constitute itself the public conscience, and all
others would become its agents through which the court would,
within the law, exercise its will. The function of a court is
to render judgment in actual controversies between adverse
litigants, to ...