State ex rel. Ohio Dept. of Health v. Nadel - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Ohio Dept. of Health v. Nadel, 98 Ohio St.3d 405, 2003-Ohio-1632.]

THE STATE EX REL. OHIO DEPARTMENT OF MENTAL HEALTH ET AL.,
APPELLEES, v. NADEL, JUDGE, ET AL., APPELLANTS.
[Cite as State ex rel. Ohio Dept. of Mental Health v. Nadel, 98 Ohio St.3d 405,
2003-Ohio-1632.]
Prohibition -- Writ prohibiting judge of common pleas court and magistrate of
common pleas court from exercising jurisdiction over an application to
vacate an arbitration award -- Court of appeals' grant of writ affirmed.
(No. 2002-1770 -- Submitted February 11, 2003 -- Decided April 16, 2003.)
APPEAL from the Court of Appeals for Hamilton County, No. C-020255, 2002-
Ohio-4449.
__________________

Per Curiam.
{¶1} Stewart M. Harris Jr., M.D., is a psychiatrist who was employed by
the Pauline Warfield Lewis Center, an institution located in Cincinnati, Ohio, and
operated by appellee Ohio Department of Mental Health ("ODMH"). Dr. Harris
was a member of a collective-bargaining unit represented by District 1199, the
Health Care and Social Service Union, Service Employees International Union,
AFL-CIO. Effective December 29, 1998, the center terminated Dr. Harris's
employment after several female coworkers made allegations of sexual
harassment against him.
{¶2} Under the collective-bargaining agreement between the state of
Ohio and the union, Dr. Harris filed a grievance challenging his termination, and
the matter was ultimately submitted to arbitration. On July 30, 1999, following an
evidentiary hearing, the arbitrator denied Dr. Harris's grievance. The arbitrator
concluded that Dr. Harris was guilty of sexual harassment and insubordination.

SUPREME COURT OF OHIO
{¶3} In August 1999, Dr. Harris filed an unfair-labor-practice charge
against the union with the State Employment Relations Board ("SERB"). Dr.
Harris contended that the union had failed to fairly and adequately represent him
at the arbitration hearing and had thereby violated R.C. 4117.11(B)(1) and (6).
More specifically, Dr. Harris claimed that the union attorney (1) removed several
of Dr. Harris's witnesses from the list of those who would testify, (2) did not
cross-examine certain key state witnesses and would not permit Dr. Harris to
testify in his own behalf, (3) did not prepare Dr. Harris's witnesses for the hearing
and did not review the written statements of either his witnesses or the state's
witnesses, and (4) refused to agree to the arbitrator's offer to extend the hearing
by one day to hear all of Dr. Harris's witnesses because the attorney was
concerned about starting her vacation on time. The union also refused to hire his
personal attorney at union expense.
{¶4} In October 1999, SERB dismissed Dr. Harris's unfair-labor-
practice charge. In February 2000, SERB denied Dr. Harris's motion for
reconsideration.
{¶5} Dr. Harris did not file a complaint for a writ of mandamus to
challenge SERB's dismissal of his unfair-labor-practice charge. See State ex rel.
Portage Lakes Edn. Assn., OEA/NEA v. State Emp. Relations Bd., 95 Ohio St.3d
533, 2002-Ohio-2839, 769 N.E.2d 853, ¶ 35, quoting State ex rel. Serv. Emp.
Internatl. Union, Dist. 925 v. State Emp. Relations Bd. (1998), 81 Ohio St.3d 173,
689 N.E.2d 962, syllabus (" `An action in mandamus is the appropriate remedy to
obtain judicial review of orders by the State Employment Relations Board
dismissing unfair labor practice charges for lack of probable cause' "). Instead, in
October 1999, Dr. Harris filed an application in the Hamilton County Court of
Common Pleas to vacate the arbitration award pursuant to R.C. 2711.10. Dr.
Harris alleged that the arbitrator "exceeded the scope of his powers and so
imperfectly executed his powers that a mutual, final, indefinite [sic] award upon
2

January Term, 2003
the subject matter submitted was not made," "failed to properly consider evidence
pertinent and material to the controversy," and ignored testimony and written
statements.
{¶6} After ODMH moved to dismiss Dr. Harris's application, Dr. Harris
moved to amend his application to allege that the arbitration award had been
procured by fraud and undue means, including the union's unfair representation,
and that the union had breached its duty of fair representation. In the amended
application, Dr. Harris claimed that the union failed to thoroughly investigate,
prepare, and present his claim at arbitration by, inter alia, (1) refusing to request
an additional hearing day because of the vacation plans of the union attorney, (2)
failing to permit Dr. Harris to testify, (3) refusing to permit certain witnesses to
testify, (4) failing to prepare witnesses, and (5) failing to cross-examine several of
the center's witnesses.
{¶7} In his response to ODMH's dismissal motion, Dr. Harris noted that
in his application to vacate the arbitration award, he was "questioning the
arbitrator's failure (because of unfair representation of the Union) to hear
evidence that was pertinent and material to the controversy." In a subsequent
memorandum, Dr. Harris again emphasized that he was attacking the arbitration
award because of the alleged unfair representation provided by his union.
{¶8} In June 2000, appellant Hamilton County Court of Common Pleas
Judge Norbert A. Nadel denied ODMH's dismissal motion. Judge Nadel
determined that Dr. Harris had standing to vacate the arbitration award because he
had alleged that the union breached its duty of fair representation.
{¶9} ODMH then moved for summary judgment. In his response, Dr.
Harris reiterated that "much of the impropriety at [the arbitration] hearing was
caused by the Union's unfair representation" and that his "theory is that the unfair
representation so tainted the grievance and arbitration procedure that a separate
lawsuit against the employer in court is permitted." In another response, Dr.
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SUPREME COURT OF OHIO
Harris again emphasized that the union "breached its obligation to represent him
fairly in the proceedings against him."
{¶10} In February 2002, appellant Richard A. Bernat, a magistrate for the
common pleas court, denied ODMH's motion for summary judgment. In March
2002, Judge Nadel adopted the magistrate's decision.
{¶11} In April 2002, appellees, ODMH and its director, filed a complaint
in the Court of Appeals for Hamilton County for a writ of prohibition to prevent
Judge Nadel and Magistrate Bernat from proceeding in the underlying case.
Appellees also named Dr. Harris as a respondent. Judge Nadel and Magistrate
Bernat moved to dismiss and, upon court order deferring consideration of their
motion, filed an answer. Dr. Harris filed an answer in which he specified that
because his amended application to vacate the arbitration award "sounds in unfair
representation, the [common pleas] court is empowered to hear his claims."
(Emphasis added.)
{¶12} In August 2002, the court of appeals denied the motion to dismiss
and granted appellees a writ of prohibition to prevent Judge Nadel and Magistrate
Bernat from exercising further jurisdiction over Dr. Harris's application to vacate
the arbitration award. In its opinion, the court of appeals noted that Dr. Harris had
"conceded at oral argument that his claims concerning the arbitrator's
`misconduct' are premised on the union's failure to properly represent him at the
arbitration hearing."
{¶13} This cause is now before the court upon Judge Nadel and
Magistrate Bernat's appeal as of right.1
Laches

1 Although Dr. Harris also filed a notice of appeal, he failed to file a
timely merit brief, and his appeal was dismissed for want of
prosecution. S.Ct.Prac.R. VI(7).
4

January Term, 2003
{¶14} Judge Nadel and Magistrate Bernat assert that laches warrants
denial of the writ because ODMH and its director delayed almost two and a half
years before commencing their action for a writ of prohibition to prevent the
judge and the magistrate from exercising jurisdiction over Dr. Harris's application
to vacate the arbitration award. Appellants rely on State ex rel. Fuller v. Medina
Cty. Bd. of Elections, 97 Ohio St.3d 221, 2002-Ohio-5922, 778 N.E.2d 37, ¶ 7-12,
in support of their assertion.
{¶15} Appellants' contention lacks merit. Unlike Fuller, this is not an
election case. "Relators in election cases must exercise the utmost diligence," and
"if they fail to do so, laches may bar the action." Id. at ¶ 7. Conversely, "[i]n
nonelection cases, laches is an affirmative defense which must be raised or else it
is waived." State ex rel. Spencer v. E. Liverpool Planning Comm. (1997), 80
Ohio St.3d 297, 299, 685 N.E.2d 1251. Appellants did raise this issue in their
motion to dismiss.
{¶16} Nevertheless, appellants did not establish laches here. "[T]he
elements of laches are (1) unreasonable delay or lapse of time in asserting a right,
(2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of
the injury or wrong, and (4) prejudice to the other party." State ex rel. Mallory v.
Pub. Emp. Retirement Bd. (1998), 82 Ohio St.3d 235, 244, 694 N.E.2d 1356.
Appellants, including Dr. Harris, failed to introduce any argument or evidence of
prejudice, including prejudice to Dr. Harris's ability to defend against the
jurisdictional claims of ODMH and its director. Id.
{¶17} Therefore, laches did not bar the prohibition claim.
Prohibition
{¶18} Judge Nadel and Magistrate Bernat next assert that the court of
appeals erred in granting the writ of prohibition because they do not patently and
unambiguously lack jurisdiction over Dr. Harris's application to vacate the
arbitration award.
5

SUPREME COURT OF OHIO
{¶19} If a lower court patently and unambiguously lacks jurisdiction over
the cause, prohibition will issue to prevent the future unauthorized exercise of
jurisdiction and to correct the results of previous jurisdictionally unauthorized
actions. State ex rel. Sartini v. Yost, 96 Ohio St.3d 37, 2002-Ohio-3317, 770
N.E.2d 584, ¶ 24.
{¶20} Judge Nadel and Magistrate Bernat claim that they do not patently
and unambiguously lack jurisdiction over Dr. Harris's application because the
allegations of the application sufficiently state grounds upon which common pleas
courts exercise jurisdiction under R.C. 2711.10 to vacate arbitration awards.2
{¶21} The mere fact that Dr. Harris couched the allegations of his
application and amended application in language comparable to that found in R.C.
2711.10 is insufficient to vest jurisdiction in the common pleas court. Cf., e.g.,

2 {¶a}
R.C. 2711.10 provides:

{¶b} "In any of the following cases, the court of common pleas
shall make an order vacating the award upon the application of any
party to the arbitration if:

{¶c} "(A) The award was procured by corruption, fraud, or
undue means.

{¶d} "(B) There was evident partiality or corruption on the part
of the arbitrators, or any of them.

{¶e} "(C) The arbitrators were guilty of misconduct in refusing
to postpone the hearing, upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the controversy; or of any
other misbehavior by which the rights of any party have been
prejudiced.

{¶f} "(D) The arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final, and definite award
upon the subject matter submitted was not made."

6

January Term, 2003
State ex rel. Illum. Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio St.3d
69, 2002-Ohio-5312, 776 N.E.2d 92, ¶ 21, quoting Higgins v. Columbia Gas of
Ohio, Inc. (2000), 136 Ohio App.3d 198, 202, 736 N.E.2d 92 (" `Casting the
allegations in the [common pleas court] complaint to sound in tort or contract is
not sufficient to confer jurisdiction upon a trial court' when the basic claim is one
that the commission has exclusive jurisdiction to resolve"); Whitman v. Hamilton
Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 9
(court looks beyond the allegations of a mandamus claim to discern the manifest
objective of the claim).
{¶22} In this case, the court of appeals did not need to analyze Dr.
Harris's allegations in his initial and amended applications. Dr. Harris admitted at
oral argument and in his answer that his common pleas court case was premised
upon his claim that the union breached its duty of fair representation. By so
conceding, Dr. Harris invited any possible error by the court of appeals in
determining that this was his sole claim in the underlying action. See State ex rel.
Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27
("Under [the invited-error] doctrine, a party is not entitled to take advantage of an
error that he himself invited or induced the court to make").
{¶23} SERB, not the common pleas court, had exclusive jurisdiction to
resolve Dr. Harris's claim of unfair representation pursuant to R.C. Chapter 4117.
Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City
Lodge No. 9 (1991), 59 Ohio St.3d 167, 572 N.E.2d 87, paragraph one of the
syllabus. Exclusive jurisdiction to resolve unfair labor practice charges is vested
in SERB in two general areas: (1) where one of the parties filed charges with
SERB alleging an unfair labor practice under R.C. 4117.11 and (2) where a
complaint brought before the common pleas court alleges conduct that constitutes
an unfair labor practice specifically enumerated in R.C. 4117.11. E. Cleveland v.
7

SUPREME COURT OF OHIO
E. Cleveland Firefighters Local 500, I.A.F.F. (1994), 70 Ohio St.3d 125, 127-128,
637 N.E.2d 878.
{¶24} R.C. 4117.11(B)(6) specifies that it is an unfair labor practice for
an employee organization to "[f]ail to fairly represent all public employees in a
bargaining unit." Consequently, the claimed breach of this duty of fair
representation falls solely within the exclusive jurisdiction of SERB. See, e.g.,
State ex rel. Cleveland City School Dist. Bd. of Edn. v. Pokorny (1995), 105 Ohio
App.3d 108, 110, 663 N.E.2d 719; Gallant v. Toledo Pub. Schools (1992), 84
Ohio App.3d 378, 385, 616 N.E.2d 1156; Shamrock v. Trumbull Cty. Commrs.
(1990), 71 Ohio App.3d 54, 57-59, 593 N.E.2d 28.
{¶25} Therefore, Judge Nadel and Magistrate Bernat patently and
unambiguously lack jurisdiction over Dr. Harris's claims, and the court of appeals
correctly granted a writ of prohibition to prevent their continued exercise of
jurisdiction. See State ex rel. Fraternal Order of Police, Ohio Labor Council,
Inc. v. Franklin Cty. Court of Common Pleas (1996), 76 Ohio St.3d 287, 667
N.E.2d 929.
{¶26} Based on the foregoing, we affirm the judgment of the court of
appeals.
Judgment affirmed.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK, LUNDBERG
STRATTON and O'CONNOR, JJ., concur.
__________________

Jim Petro, Attorney General, Jack W. Decker and Christina M. Wendell,
Assistant Attorneys General, for appellees.

Michael K. Allen, Hamilton County Prosecuting Attorney, and Christian J.
Schaefer, Assistant Prosecuting Attorney, for appellants Norbert A. Nadel and
Richard A. Bernat.
8

January Term, 2003

Hunter, Carnahan & Shoub and Robert R. Byard, urging affirmance for
amicus curiae SEIU District 1199, the Health Care and Social Service Union,
SEIU, AFL-CIO.

Mark E. Linder, Associate General Counsel, urging affirmance for amicus
curiae Ohio Civil Service Employees Association, Local 11, AFL-CIO.
__________________
9