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State ex rel. S.P. v. City of Cleveland

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 23, 2018

STATE OF OHIO, EX REL. S.P., ET AL. RELATORS
v.
THE CITY OF CLEVELAND, ET AL. RESPONDENTS

          Writ 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 Law LLC

          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

          EILEEN KILBANE, P.J.

         {¶1} 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.[1] We grant the respondents' motion for summary judgment in part and deny the motion for summary judgment in part.

         I. Facts

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 mandamus.

         II. Standards for Issuing a Writ of Mandamus

         {¶7} 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).

         {¶8} 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).

         {¶9} 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 ...

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