[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Schroeder v. Cleveland, Slip Opinion No. 2016-Ohio-8105.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-8105 

THE STATE EX REL. SCHROEDER ET AL. v. THE CITY OF CLEVELAND ET AL. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Schroeder v. Cleveland, Slip Opinion No. 

2016-Ohio-8105.] 

Mandamus—Relators had adequate remedy in ordinary course of law by way of 

intervention in declaratory-judgment case—Cause dismissed. 

(No. 2015-1831—Submitted August 30, 2016—Decided December 14, 2016.) 

IN MANDAMUS. 

_____________________ 

Per Curiam. 

{¶ 1} Relators, 11 captains and 1 battalion chief in the Cleveland Fire 

Department, filed this action in mandamus against respondents, the city of 

Cleveland and its mayor, seeking immediate cessation of the noncompetitive 

examination process that the city is currently using for promotion within the fire 

department. The firefighters’ union challenged that process on the same grounds 

in a declaratory-injunction action in the Cuyahoga County Court of Common Pleas. 
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Relators filed a motion to intervene in that action but withdrew the motion after the 

judge failed to rule on it. 

{¶ 2} The declaratory-judgment complaint requested relief almost identical 

to the relief requested here. Relators therefore had an adequate remedy at law by 

way of intervening in the declaratory judgment-case, precluding a writ of 

mandamus here. We therefore dismiss relators’ action. 

Facts and Procedural History 

Background 

{¶ 3} Relators allege that each of them is eligible for promotion in the 

Cleveland Fire Department but was deprived of the opportunity to take a 

competitive promotional examination. Relators assert that a competitive exam 

designed to test for merit and fitness for promotion is required by Article XV, 

Section 10 of the Ohio Constitution, R.C. Chapter 124, Cleveland City Charter 

Sections 126 and 128, and Cleveland Civil Service Commission Rules 4.60 and 

4.70. 

{¶ 4} According to relators’ complaint, rather than comply with these 

provisions, in March 2014, Cleveland created a noncompetitive examination 

process, which relators describe as “highly unorthodox.” The process consisted of 

the submission of an applicant’s resume and an interview by panel members who 

varied in number depending on the day. Relators assert that they were denied 

promotions to battalion chief or assistant chief after applying through this process. 

Assn. of Cleveland Firefighters, Local 93 I.A.F.F. v. Cleveland 

{¶ 5} On March 20, 2014, the Association of Cleveland Firefighters, Union 

Local 93 I.A.F.F., filed a complaint and a motion for a temporary restraining order 

and preliminary injunction in the Cuyahoga County Court of Common Pleas, 

seeking to stop the city from using the noncompetitive examination process for 

promotion in the fire department. 
January Term, 2016 

3

{¶ 6} After holding a hearing on the union’s motion, the trial court 

dismissed the union’s claims sua sponte, concluding that the court lacked 

jurisdiction in light of the union’s failure to exhaust its remedies under a collectivebargaining agreement. The union appealed, and Cleveland cross-appealed. On 

April 23, 2015, the Eighth District Court of Appeals reversed and remanded. Assn. 

of Cleveland Firefighters, Local 93 I.A.F.F. v. Cleveland, 2015-Ohio-1538, 31 

N.E.3d 1285 (8th Dist.). 

{¶ 7} In the meantime, between January and March 2015, Cleveland 

promoted six fire captains to fill battalion-chief positions. These newly promoted 

battalion chiefs never passed a competitive promotional exam, which relators assert 

is required by law. 

{¶ 8} Following a hearing held upon remand from the court of appeals, the 

trial court granted the union’s requested preliminary injunction and prohibited 

Cleveland from administering its noncompetitive examination process for 

promotion in the fire department. Between June 26 and September 15, 2015, 

several interested parties filed motions to intervene in the case that the trial court 

ultimately granted. 

{¶ 9} In the meantime, on September 8, 2015, relators filed their own 

motion to intervene, and Cleveland filed a response in opposition. After the trial 

court failed to rule on their motion, relators withdrew it on November 12, 2015. 

{¶ 10} In March 2016, the union and Cleveland each filed a motion for 

summary judgment. After the parties had submitted briefs and evidence in this 

case, on September 12, 2016, the trial court issued a judgment entry and opinion in 

Assn. of Cleveland Firefighters dismissing the action. 

The mandamus action 

{¶ 11} On November 13, 2015, one day after withdrawing their motion to 

intervene in Assn. of Cleveland Firefighters, relators filed in this court a complaint 

for a writ of mandamus. Relators assert in their complaint that they have a clear 
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legal right to require that Cleveland choose battalion chiefs and assistant chiefs 

from among the three highest scores in a competitive promotional exam, that they 

have no adequate remedy in the ordinary course of the law, and that Cleveland has 

no lawful reason for refusing to offer a competitive exam or for filling the positions 

with firefighters who do not rank among the top three scores in a competitive exam. 

Relators request that this court order Cleveland to immediately offer a competitive 

promotional exam to all firefighters who were eligible to sit for such a test when 

the noncompetitive examination process was announced in March 2014, fill all 

battalion-chief and assistant-chief positions available since March 2014 with 

firefighters who rank in the top three of that competitive test, make those 

promotions retroactive to the date each would have been effective if Cleveland had 

complied with the law, and provide back pay and benefits to the firefighters 

promoted under the new competitive process. 

{¶ 12} Cleveland filed a motion to dismiss, and relators filed a 

memorandum in opposition. We denied the motion to dismiss and issued an 

alternative writ. 145 Ohio St.3d 1454, 2016-Ohio-2807, 49 N.E.3d 317. The 

parties have submitted evidence and briefs. 

Analysis 

Mandamus 

{¶ 13} To be entitled to extraordinary relief in mandamus, relators must 

establish a clear legal right to the requested relief, a clear legal duty on the part of 

Cleveland to provide it, and the lack of an adequate remedy in the ordinary course 

of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 

N.E.2d 452, ¶ 6. Relators must prove that they are entitled to the writ by clear and 

convincing evidence. Id. at ¶ 13. 

Adequate remedy at law 

{¶ 14} Cleveland argues that relators’ claims are similar to those asserted 

by the firefighters’ union in Assn. of Cleveland Firefighters, the declaratory-
January Term, 2016 

5

judgment action that it filed in the common pleas court, and that intervention in that 

case constituted an adequate remedy at law. 

{¶ 15} Relators here did move to intervene in Assn. of Cleveland 

Firefighters. Their motion was not ruled on for more than two months, even though 

other parties’ motions to intervene were filed after theirs and were granted. 

Relators claim that their interests were not represented in the declaratory-injunction 

action and that the trial court had “no intention of ruling on” their motion to 

intervene. They also claim that Cleveland opposed their attempts to intervene at 

every juncture in that case and that they lacked an adequate remedy by way of 

intervention. 

{¶ 16} Relators argue that the trial court’s failures to rule on their motion to 

intervene and to allow their counsel to participate in a status conference regarding 

the possibility of mediation were not appealable. Relators further argue that they 

would not have been allowed to participate in mediation, scheduled for November 

19, 2015, and that their interests would not have been protected if the mediation 

had proceeded without them. Relators therefore withdrew their motion to intervene 

in Assn. of Cleveland Firefighters and filed this action instead. 

{¶ 17} Cleveland emphasizes that relators had a right to intervene in Assn. 

of Cleveland Firefighters but did not choose to “join in [ ] the complaint filed by 

their Union” and withdrew the motion to intervene that they had filed. 

{¶ 18} The general rule is that a pending declaratory-judgment action may 

bar a mandamus action but only when intervention in the pending action is an 

adequate remedy in the ordinary course of the law. State ex rel. Gilmour Realty, 

Inc. v. Mayfield Hts., 119 Ohio St.3d 11, 2008-Ohio-3181, 891 N.E.2d 320, ¶ 16. 

An alternative remedy is adequate only if it is “complete, beneficial, and speedy.” 

State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009, 

835 N.E.2d 1222, ¶ 41, citing State ex rel. Smith v. Cuyahoga Cty. Court of 

Common Pleas, 106 Ohio St.3d 151, 2005-Ohio-4103, 832 N.E.2d 1206, ¶ 19. 
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Even though an incomplete remedy by itself, a declaratory judgment may be an 

adequate remedy if it is coupled with ancillary relief in the form of a mandatory 

injunction. Id. at ¶ 42, citing State ex rel. Webb v. Bliss, 99 Ohio St.3d 166, 2003-

Ohio-3049, 789 N.E.2d 1102, ¶ 23. 

{¶ 19} The question here, therefore, is whether intervention in Assn. of 

Cleveland Firefighters was an adequate remedy in the ordinary course of the law. 

The complaint in that case shows that the union asked not only for declaratory and 

injunctive relief but also for relief in mandamus. 

{¶ 20} More specifically, the union in Assn. of Cleveland Firefighters 

challenged the noncompetitive examination process used by Cleveland as violating 

Article XV, Section 10 of the Ohio Constitution, R.C. Chapter 124, sections 126 

and 128 of the Cleveland Charter, and Cleveland Civil Service Commission Rules 

4.60 and 4.70. The union requested a declaratory judgment that all vacancies in the 

promoted ranks created since the expiration of the last civil-service-eligibility list, 

as well as all future vacancies, be filled by a competitive examination process and 

that the noncompetitive process is unconstitutional and in violation of the law. The 

union requested preliminary and permanent injunctions prohibiting the 

administration of the noncompetitive process for promotions and that the status quo 

be maintained by prohibiting any future promotions from taking place without a 

competitive exam. And the union requested a writ of mandamus ordering 

Cleveland to immediately administer competitive exams, certify eligibility lists to 

restore the promotional cycle, and fill all promotional vacancies from that list.1

 

1

 The request for a writ of mandamus appears in the amended complaint; the original complaint, 

filed in March 2014, was not submitted as evidence in this case. Although the trial court did not 

grant leave to amend the complaint until December 10, 2015 (nearly one month after relators filed 

their complaint in this case), the union in Assn. of Cleveland Firefighters had already filed on 

September 10, 2015, a copy of its proposed complaint as an attachment to its motion to amend the 

original complaint. 
January Term, 2016 

7

{¶ 21} Relators challenge the noncompetitive examination process on the 

same grounds as the union did in Assn. of Cleveland Firefighters and, like the union 

in that case, seek the immediate return of the competitive examination process. 

Relators cite the same constitutional, statutory, and local-regulatory provisions of 

the law in support of their position as the union did in Assn. of Cleveland 

Firefighters. The only relief requested here that was not specifically requested in 

the common pleas case is back pay and benefits to firefighters who were eligible to 

be promoted under the competitive exams but who were not promoted under the 

noncompetitive scheme. However, a party wishing to intervene is required to 

provide “a pleading, as defined in Civ.R. 7(A), setting forth the claim or defense 

for which intervention is sought.” Civ.R. 24(C). Relators here could have asserted 

in a complaint accompanying their motion to intervene in Assn. of Cleveland 

Firefighters any additional claims they wished to assert in that case, including a 

claim for back pay and benefits. Thus, relators could have intervened in the Assn. 

of Cleveland Firefighters declaratory-judgment action and, if successful, obtained 

all the relief they seek here. Assn. of Cleveland Firefighters therefore provided 

complete relief; intervention in that case would have constituted an adequate 

remedy in the ordinary course of the law, precluding a writ of mandamus here. 

{¶ 22} Relators assert that Cleveland has attempted to thwart every effort 

they made to intervene in that case. They emphasize that the trial court did not rule 

on their motion to intervene and had scheduled mediation without having allowed 

their intervention. 

{¶ 23} But relators could have filed an action in procedendo to force the 

trial court to grant or deny their motion to intervene. If, as they assert, they had a 

substantial right that was not otherwise represented in the litigation and that “in 

effect determine[d] the action and prevent[ed] a judgment” on their claims, a denial 

of the motion to intervene would have been an appealable order. R.C. 
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8

2505.02(B)(1); Southside Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209, 

2007-Ohio-6665, 878 N.E.2d 1048, ¶ 7-8. 

{¶ 24} Moreover, the fact that the union’s claims in Assn. of Cleveland 

Firefighters have been dismissed is immaterial. If an adequate remedy was 

available but the party failed to take advantage of it or is time-barred from using it, 

mandamus will not lie to substitute for that remedy. State ex rel. Johnson v. 

Cleveland Hts./Univ. Hts. School Dist. Bd. of Edn., 73 Ohio St.3d 189, 193, 652 

N.E.2d 750 (1995). 

Conclusion 

{¶ 25} Relators had an adequate remedy in the ordinary course of the law 

by way of intervention in Assn. of Cleveland Firefighters. We therefore dismiss 

this action on that basis. 

Cause dismissed. 

O’CONNOR, C.J., and PFEIFER, LANZINGER, and O’NEILL, JJ., concur. 

O’DONNELL, J., dissents, with an opinion joined by KENNEDY and FRENCH, 

JJ. 

_________________ 

O’DONNELL, J., dissenting. 

{¶ 26} Respectfully, I dissent. 

{¶ 27} In this case, 11 captains and 1 battalion chief in the Cleveland Fire 

Department seek a writ of mandamus to compel the city of Cleveland to determine 

their eligibility for promotion in the fire department through competitive 

promotional examinations. 

{¶ 28} The threshold question in this case is whether relators had an 

adequate remedy at law precluding us from issuing a writ of mandamus. The 

majority concludes that an adequate remedy existed, because relators had moved to 

intervene in a declaratory judgment action brought by the Association of Cleveland 

Firefighters, Union Local 93 I.A.F.F., which raised similar claims in the Cuyahoga 
January Term, 2016 

9

County Common Pleas Court. It further notes that even though the trial court failed 

to rule on that motion, relators nonetheless had an adequate remedy because they 

could have sought a writ of procedendo to compel the trial court to grant or deny 

intervention. 

{¶ 29} Filing a motion to intervene in the union’s declaratory judgment 

action did not provide an adequate remedy at law. 

{¶ 30} First, the trial court never ruled on the motion to intervene, and 

although relators could have sought a writ of procedendo, a great writ is an 

extraordinary remedy that will lie only if there is no adequate remedy in the 

ordinary course of the law, State ex rel. St. Sava Serbian Orthodox Church of 

Cleveland v. Riley, 36 Ohio St.2d 171, 174, 305 N.E.2d 808 (1973); State ex rel. 

Gopp v. Wiest, 141 Ohio St.3d 88, 2014-Ohio-4557, 21 N.E.3d 1052, ¶ 3. And, 

while the majority relies on Southside Community Dev. Corp. v. Levin, 116 Ohio 

St.3d 1209, 2007-Ohio-6665, 878 N.E.2d 1048, for the proposition that denial of 

the motion to intervene would have been an appealable order, Southside is not 

applicable because the trial court failed to rule on the motion to intervene, and 

therefore no order ever existed from which to appeal. 

{¶ 31} Second, the union’s declaratory judgment action—which relators 

were never parties to—was not an adequate remedy barring mandamus relief. As 

this court explained in State ex rel. Gen. Motors Corp. v. Indus. Comm., 117 Ohio 

St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, “[s]tanding alone, a declaratory 

judgment cannot compel a government official to perform a specific legal duty,” 

and therefore “a declaratory judgment must be accompanied with injunctive relief 

in the form of a mandatory injunction in order to successfully compel the 

government to act.” Id. at ¶ 10. 

{¶ 32} Contrary to the assertion in the majority’s opinion, the union’s 

complaint did not seek a mandatory injunction compelling official action. Rather, 

it sought a declaratory judgment that all vacancies in the promoted ranks created 
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since the expiration of the last civil-service-eligibility list and all future vacancies 

must be filled by a competitive examination process and, in addition, a declaration 

that the noncompetitive process violates the Ohio Constitution, R.C. Chapter 124, 

city ordinances, and civil service rules. It also sought a preliminary and permanent 

injunction to prohibit the city from giving promotions without administering 

competitive examinations and ranking candidates for promotion by their scores. 

{¶ 33} A mandatory injunction is “an extraordinary remedy that compels 

the defendant to restore a party’s rights through an affirmative action.” State ex rel. 

Gen. Motors Corp. at ¶ 12. But here, the union requested preliminary and 

permanent injunctions, which are prohibitory injunctions that “enjoin[ ] a defendant 

from performing the challenged acts in the future,” id. Thus, the majority blurs the 

distinction between a prohibitory and a mandatory injunction: “a prohibitory 

injunction is used to prevent a future injury, but a mandatory injunction is used to 

remedy past injuries,” id.

{¶ 34} As we explained in State ex rel. Gilmour Realty, Inc. v. Mayfield 

Hts., 119 Ohio St.3d 11, 2008-Ohio-3181, 891 N.E.2d 320, ¶ 16, a pending 

declaratory judgment action does not preclude a mandamus action “when—as 

here—the pending declaratory judgment action does not provide an adequate 

remedy.” In the circumstances of this case, a declaratory judgment action would 

not be a complete remedy unless coupled with ancillary relief in the nature of a 

mandatory injunction. Because the union’s declaratory judgment action did not 

seek a mandatory injunction, it was not a complete remedy, and therefore it cannot 

“constitute an adequate remedy so as to preclude the requested extraordinary relief 

in mandamus,” id. at ¶ 14. 

{¶ 35} At the time relators filed their action in this court, the union’s 

complaint apparently had not yet been amended to add the count seeking a writ of 

mandamus to compel action by the city. Yet the majority asserts that relators’ 

motion to intervene was nonetheless an adequate remedy in the ordinary course of 
January Term, 2016 

11 

law, because the claims presented in the subsequently amended complaint would 

have afforded an adequate remedy. Whether or not that hypothesis is true, the 

reality is that relators were never made parties to the common pleas court action 

and never sought to intervene after the union subsequently sought a writ of 

mandamus because they became litigants in this original action, and neither the 

majority nor the city points to any authority for the proposition that relators were 

required to intervene in the union’s action seeking a writ of mandamus in order to 

protect their rights. 

{¶ 36} In addition, filing a motion to intervene in an action seeking a writ 

of mandamus is not an adequate remedy in the ordinary course of law, because a 

great writ is an extraordinary remedy, not an ordinary one. State ex rel. Taylor v. 

Glasser, 50 Ohio St.2d 165, 166, 364 N.E.2d 1 (1977). As we explained in State 

ex rel. Pressley v. Indus. Commission, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), 

The extraordinary remedies of statutory mandamus and statutory 

mandatory injunction are not plain and adequate remedies in the 

ordinary course of the law and the availability of these extraordinary 

remedies in the Common Pleas Court is not a ground upon which 

the Supreme Court can adopt or adhere to a rule that it is error for 

the Supreme Court or the Court of Appeals to exercise jurisdiction 

in a mandamus action filed originally therein. 

Id. at paragraph six of the syllabus. 

{¶ 37} If relators’ right to file a mandamus action in the common pleas court 

does not preclude them from bringing a mandamus action in this court, then the 

right to seek intervention in a third party’s action when the claimant has sought but 

not yet been granted leave to amend the complaint to add a claim for mandamus 

relief is likewise not an adequate remedy in the ordinary course of law. 
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{¶ 38} For these reasons, relators’ motion to intervene in the union’s 

declaratory judgment action was not an adequate remedy in the ordinary course of 

law and does not preclude them from seeking mandamus relief in this court. But 

to establish entitlement to the requested writ of mandamus, relators also needed to 

establish a clear legal right to the relief requested and a clear legal duty on the part 

of the city to provide it. State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-

Ohio-4563, 31 N.E.3d 608, ¶ 18. Relators met that burden. 

{¶ 39} Article XV, Section 10 of the Ohio Constitution requires promotions 

in the city’s civil service to be “made according to merit and fitness,” which is “to 

be ascertained, as far as practicable, by competitive examinations,” and it mandates 

the passage of laws “providing for the enforcement of this provision.” Pursuant to 

this authority, the General Assembly enacted R.C. 124.45, which requires that 

“[v]acancies in positions above the rank of regular fire fighter in a fire department 

shall be filled by competitive promotional examinations.” The legislature’s use of 

the word “shall” is understood to mean a mandatory obligation, and it is not left to 

the discretion of the city to decide the manner in which promotions in the fire 

department should be made. 

{¶ 40} And the city’s own civil service rules provide that noncompetitive 

examinations may be used only for positions requiring “peculiar and exceptional 

qualifications of a scientific, managerial, professional, or educational character.” 

Cleveland Civil Service Rule 4.60. The positions of assistant chief and battalion 

chief do not fall within those categories. Nor does the position of fire chief, because 

the city’s assistant public safety director, Edward Eckart Jr., admitted that the city 

planned to fill the position of fire chief through a competitive examination. 

{¶ 41} The noncompetitive process adopted by the city to make promotions 

to the positions of assistant chief and battalion chief is contrary to the Ohio 

Constitution, violates R.C. 124.45 and Cleveland Civil Service Rule 4.60, and 

therefore is not the vehicle to be used to fill vacancies in these positions. 
January Term, 2016 

13 

{¶ 42} Accordingly, relators did not have an adequate remedy in the 

ordinary course of law by intervening in the common pleas court action, and the 

Ohio Constitution, R.C. 124.45, and the city’s civil services rules required the city 

to determine eligibility for promotion in the Cleveland Fire Department through 

competitive promotional examinations. 

{¶ 43} Therefore, I would grant the requested writ of mandamus. 

 KENNEDY and FRENCH, JJ., concur in the foregoing opinion. 

_________________ 

The Lefton Group, L.L.C., Karen C. Lefton, and Timothy D. Smith, for 

relators. 

Barbara A. Langhenry, Cleveland Director of Law, and Annette G. Butler 

and Aikaterini Houston, Assistant Directors of Law, for respondents. 

_________________