January 15, 2014
Extraordinary Writs

by Justice Paul E. Pfeifer

On November 6, 2007, Anthony P. Capretta was elected to a four-year term as city council member for the city of Brunswick, Ohio for Ward 4. He began serving that term on January 1, 2008.

In May 2010, Capretta contacted the city service director about reimbursing one of his constituents for the replacement cost of a mailbox destroyed by a city snowplow. At first glance, that might seem to be a harmless request by a city councilperson on behalf of a constituent. But that request ran afoul of the city charter.

What had Capretta done wrong? Section 3.05(b) of the Brunswick Charter states: “Except for the purpose of inquiries and investigations under Article VI, Section 6, the Council or its members shall deal with City officers and employees who are subject to the direction and supervision of the City Manager solely through the City Manager or his/her designee(s), and neither the Council nor its members shall give orders to any such officer or employee either publicly or privately.”

As a result of Capretta’s contact with the city service director, the city manager and the city service director filed complaints against Capretta with the Brunswick Board of Ethics. Following an evidentiary hearing, the board of ethics determined that the service director’s complaint had merit. The board concluded that Capretta had violated Section 3.05(b) of the Brunswick Charter.

On September 27, 2010, following another evidentiary hearing, the remaining members of the city council removed Capretta from office for violating the charter. On October 18, Lisa J. Zamiska was appointed to fill the vacancy created by Capretta’s removal.

A week later, on October 26, 2010, Capretta filed an administrative appeal of the council’s decision to remove him from his elective position. Almost a year later, on September 1, 2011, the Medina County Court of Common Pleas affirmed the city council’s decision.

In response, Capretta appealed that judgment. On October 22, 2012 – a little more than a year after the common pleas court ruling – the court of appeals dismissed Capretta’s appeal, declaring it moot because the term of office for which Capretta sought reinstatement had expired in 2011. Furthermore, he was subsequently reelected to that office.

But in August 2011, a few weeks before the common pleas court decided his administrative appeal, Capretta had also filed a petition for a writ of quo warranto in the court of appeals. A writ of quo warranto is an old English practice that is designed to test whether a person exercising power is legally entitled to do so. It is considered “an extraordinary writ.”

In his August 2011 appeal, Capretta requested that Zamiska be ousted and that he be restored to office. Capretta also requested that the city and the city council be required to pay his lost wages and provide him with service credit for the time he was out of office so that those two years could be applied to his public employee retirement system credit.

In response to his appeal, Zamiska and the city council filed an answer and a motion asking for summary judgment – meaning they asked the court to rule without a trial. Capretta filed a response opposing the motion for summary judgment. But, the court of appeals granted the motion for summary judgment and, in effect, denied Capretta’s writ.

After that, his case came before us – the Supreme Court of Ohio – for a final review.

The court of appeals, in reaching its decision, had determined that Capretta’s administrative appeal constituted an adequate remedy in the ordinary course of law, which precluded his claimed entitlement to a writ of quo warranto.  We agreed with that decision.

It has been established that extraordinary writs – such as a writ of quo warranto – provide extraordinary remedies, not alternative remedies. That’s important because where there is an adequate remedy in the ordinary course of the law, an extraordinary writ will not be granted.

Previous case law has recognized that an administrative appeal constitutes an adequate remedy in the ordinary course of law that precludes extraordinary relief in quo warranto.

On appeal, Capretta did not dispute this general proposition or suggest that the city council did not exercise quasi-judicial power in removing him from office. That’s important because Ohio law provides for administrative appeals only from quasi-judicial proceedings.

Instead, Capretta claimed that his appeal did not constitute an adequate remedy, because he could not get back pay and retirement-system credit in an administrative appeal. But he could obtain these remedies if he were to be granted a writ of quo warranto.

Capretta, however, waived this claim by failing to raise it as an issue in the court of appeals in response to Zamiska and the council’s motion for summary judgment – in which they claimed that Capretta’s administrative appeal provided him with an adequate remedy in the ordinary court of law.

In addition, Capretta cited no case in support of his claim that the law does not authorize an award of back pay and benefits in the context of an administrative appeal. He did not meet his burden of demonstrating reversible error under these circumstances.

Finally, in comparable cases involving the issue of writs, our court has determined that the mere fact that the tribunal hearing a civil-service appeal from the removal of a classified employee from a position is not authorized to award back pay does not warrant the conclusion that the administrative appeal is inadequate and may be bypassed by an action for extraordinary relief.

Therefore, by a six-to-one vote, we concluded that Capretta failed to establish that the court of appeals erred in denying the extraordinary relief in quo warranto. We thus affirmed the judgment of the court of appeals.

EDITOR'S NOTE: The case referred to is State ex rel. Capretta v. Zamiska, 135 Ohio St.3d 177, 2012-Ohio-69. Case No. 2012-1287. Decided January 16, 2013. Opinion Per Curiam.