Vos v. State

[Cite as Vos v. State, 2017-Ohio-4005.]

STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

DONALD L. VOS, et al., ) CASE NO. 16 CO 0034

)

PLAINTIFFS-APPELLANTS, )

)

VS. ) OPINION

)

STATE OF OHIO, et al, )

)

DEFENDANTS-APPELLEES. )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common

Pleas of Columbiana County, Ohio

Case No. 2016 CV 00465

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiffs-Appellants: Donald Vos, pro se

39916 Hazel Run Road

Hammondsville, Ohio 43930

Dennis Scott Wallace, pro-se

6607 Carbon Hill Road

East Palestine, Ohio 44413

For Defendants-Appellees: Atty. Peter Jamison

Asst. Attorney General

Executive Agencies Section

30 East Broad Street, 26th Floor

Columbus, Ohio 43215

Atty. Sarah Pierce

Asst. Attorney General

Constitutional Offices Section

30 East Broad Street, 16th Floor

Columbus, Ohio 43215

JUDGES:

Hon. Carol Ann Robb

Hon. Gene Donofrio

Hon. Cheryl L. Waite

Dated: May 25, 2017

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ROBB, P.J.

{¶1} Plaintiffs-Appellants Donald Vos and Dennis Wallace appeal the

decision of Columbiana County Common Pleas Court granting Defendants-Appellees

Governor John Kasich, Attorney General Mike DeWine, the State of Ohio, and the

Ohio Environmental Review Appeals Commission (“Ohio ERAC”) Civ.R. 12(b)(1) and

Civ.R. 12(b)(6) motion to dismiss. For the reasons expressed below, the trial court’s

dismissal based on Civ.R. 12(b)(1) and Civ.R. 12(b)(6) is affirmed.

Statement of the Case

{¶2} Appellants filed a complaint against Appellees and Defendant Ohio

Environmental Protection Agency (“Ohio EPA”) in September 2016. Appellants

sought to have the Negley, Ohio Landfill permanently closed. They alleged blood

and body parts from the victims of the September 11, 2001 terrorist attack in New

York City are interred in the Negley, Ohio Landfill. Appellants alleged debris from the

September 11, 2001 terrorist attack in New York City was transported and dumped in

the Negley, Ohio Landfill, and this debris contains blood and body parts from the

victims of the terrorist attack. Appellants contended various State officials are

covering up these facts and committed a “Misfeasance, a Malfeasance and a

Nonfeasance.” They asserted the Governor’s appointments to Ohio ERAC are to

ensure Ohio EPA was favored in actions taken against it by individuals and

companies. 9/12/16 Complaint. Ohio EPA is alleged to have failed and refused to

abide by its own rules in refusing to inspect the Negley Landfill. 9/12/16 Complaint.

Ohio EPA purportedly knew debris from New York and New Jersey was going to the

Negley Landfill but did not inspect the debris. 9/12/16 Complaint. It is alleged Ohio

ERAC failed to abide by its own rules in appeals brought before them in an effort to

protect the Ohio EPA. 9/12/16 Complaint. Ohio ERAC allegedly denied Appellants

due process of law and equal protection. 9/12/16 Complaint. Appellants claim the

Attorney General allowed prosecutors in his office to work for him and Ohio ERAC at

the same time, which created a conflict of interest. 9/12/16 Complaint.

{¶3} Appellants sought the following relief:

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(1) That the State of Ohio replace the Director of the Ohio

Environmental Protection Agency;

(2) That the State create a new Environmental Review Appeals

Commission and prohibit any person who has worked for the State of

Ohio Attorney Generals [sic] Office from being placed on the

Commission;

(3) That the State of Ohio order all permits granted to the Negley,

Ohio Dump to be null and void;

(4) That the State of Ohio order that because the Ohio

Environmental Protection Agency failed and refused to conduct

inspections as to what the material was that was brought into the

Negley, Ohio dump by railroad car and by truck from New York and

New Jersey, that the State of Ohio order all material be removed from

the dump and that the State of Ohio have an inspection of all material

that is dug out of the dump to inspect for evidence of blood and body

parts from 911 in New York that went into the dump by railroad car or

by truck;

(5) That the State of Ohio order that the Negley, Ohio Dump be

closed and turned into a burial park for those victims of 911 that were

not accounted for after 911;

(6) That the Ohio Environmental Protection Agency be ordered to

create a fund to maintain the burial park forever;

(7) That the State of Ohio pay Donald L. Vos and Dennis Scott

Wallace sum [sic] FIVE MILLION DOLLARS, (5,000,000.00) each, for

its denial of Due Process and the Equal Protection of the Law, as well

as its bias; denial of Due Process of Law; and the Equal Protection of

the Law, towards Donald L. Vos and Dennis Scott Wallace. [sic]

9/12/16 Complaint.

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{¶4} In response, all defendants filed motions to dismiss based on Civ.R.

12(B)(1) and Civ.R. 12(B)(6). 10/17/16 Governor, Attorney General and State of

Ohio Motion to Dismiss; 10/18/16 Ohio EPA Motion to Dismiss; 10/18/16 Ohio ERAC

Motion to Dismiss. They all asserted similar arguments. They contended the

common pleas court lacked subject matter jurisdiction because the monetary claim

for damages was within the exclusive jurisdiction of the Court of Claims. They also

asserted the complaint failed to state a claim upon which relief could be granted. The

Ohio ERAC asserted the claims could potentially be interpreted to be 1983 claims.

However, the 1983 claims were only against individuals, not the state agencies and

thus, any 1983 claim would fail. 10/18/16 Ohio ERAC Motion to Dismiss.

{¶5} Appellants filed a combined response and once again asserted there

was a cover up and body parts from 911 victims are interred in the Negley Landfill.

10/20/16 Combined Reply. As to Ohio ERAC’s position the claim asserted was a

1983 claim, Appellant stated it was not a 1983 claim. 10/20/16 Combined Reply.

{¶6} Appellees Governor, Attorney General, and the State, and Defendant

Ohio EPA filed replies. Appellees Governor, Attorney General, and the State

reasserted Civ.R. 12(B)(1) and Civ.R. 12(B)(6). 11/2/16 Governor, Attorney General,

and State of Ohio Reply. They also asserted this case is a collateral attack; Plaintiffs

had a full opportunity to litigate any alleged bias in the tribunal before the

Commission and on appeal to our court in Wallace v. Nally, 7th Dist. No. 14 CO 32,

2015-Ohio-4146. 11/2/16 Governor, Attorney General, and State of Ohio Reply.

Defendant Ohio EPA replied asserting alleged violations of its actions or inactions

related to the landfill were required by statute to be adjudicated before the Ohio

ERAC. 11/7/16 Ohio EPA Reply. Thus, the common pleas court did not have

jurisdiction over the claims. 11/7/16 Ohio EPA Reply.

{¶7} The trial court granted the motions to dismiss in three separate

judgment entries. It granted Appellee Ohio ERAC’s motion to dismiss holding,

“Plaintiffs’ claims for monetary damages against Defendant are dismissed without

prejudice pursuant to Civil Rules 12(B)(1) and 41(B)(4)(a). Plaintiffs’ other claims are

dismissed with prejudice.” 12/1/16 J.E. Five days later, it granted Defendant Ohio

EPA’s motion to dismiss. 12/6/16 J.E. Two days following that decision, the trial

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court granted Appellees Governor, Attorney General, and State of Ohio’s Motion to

Dismiss holding, “Plaintiffs’ claims for monetary damages against State Defendants

are dismissed without prejudice pursuant to Civil Rules 12(B)(1) and 41(B)(4)(a).

The remainder of Plaintiffs’ claims against the State Defendants are dismissed with

prejudice.” 12/8/16 J.E.

{¶8} Appellants appealed the December 1, 2016 decision granting Ohio

ERAC’s motion to dismiss and the December 8, 2016 decision granting Governor,

Attorney General, and the State of Ohio’s motion to dismiss. 12/7/16 NOA; 12/13/16

NOA. Appellants did not file a notice of appeal from the December 6, 2016 ruling and

did not attach that judgment to either the December 7, 2016 or December 13, 2016

notices of appeal.

Appeal from the December 1, 2016 Order

{¶9} Three assignments of error are raised:

“The Trial Court Judge ERRORED when he decided fact, that were to be

decided by a Jury.” [sic]

“The Judge created an error when he dismissed the Ohio Environmental

Protection Agency from the Civil Action based on issues of an Appeal to the Ohio

Environmental Review Appeals Commission, when they claimed there were no new

facts without the discovery process.” [sic]

“The Judge created an error when he relied of Ohio Environmental Protection

Agency’s statement that the Court in Columbiana County Ohio lacked jurisdiction to

hear the Civil Action.” [sic]

{¶10} At the outset it is noted there are some procedural problems with the

appeal of the December 1, 2016 decision.

{¶11} The appellate brief does not comply with the Appellate Rules;

Appellants failed to comply with App.R. 12(A)(2). They do not cite to any legal

authority in support of their arguments. Furthermore, the arguments are not

developed, and the arguments are unclear. That said, this court, in the interest of

justice, has attempted to decipher the arguments and address them.

{¶12} However, those issues are not the only procedural issues in this appeal.

The assignments of error pertaining to the December 1, 2016 order argue the trial

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court erred in dismissing the claims against Ohio EPA. The December 1, 2016 order,

however, was the trial court’s granting Ohio ERAC’s motion to dismiss. Ohio EPA

was dismissed in the trial court’s December 6, 2016 order. That order was not

appealed. The Appellate Civil Docketing Statements indicated the judgments being

appealed were the December 1, 2016 judgment and the December 8, 2016

judgment. 12/7/16 Civil Docketing Statement; 12/13/16 Civil Docketing Statement.

The December 1, 2016 and the December 8, 2016 orders are the only orders

attached to the notices of appeal. As such, Appellant did not invoke our jurisdiction

to determine if the trial court erred when it dismissed the Ohio EPA from the civil

action. Accordingly, we cannot review whether the trial court’s dismissal of the Ohio

EPA was correct.

{¶13} Furthermore, Appellants’ do not ask this court to overturn the trial

court’s decision to dismiss Ohio ERAC. The appellate brief discusses Ohio EPA

being dismissed from the action; it does not discuss Ohio ERAC. Therefore, as to

Ohio ERAC and the December 1, 2016 order it is within our authority to affirm the trial

court’s decision because there are no arguments presented to us that the dismissal

of Ohio ERAC was incorrect.

{¶14} Despite those deficiencies, this court will address the merits of the

December 1, 2016 order. Ohio ERAC moved to dismiss the claims based on Civ.R.

12(B)(1) and Civ.R. 12(B)(6). It was Ohio ERAC’s position before the trial court and it

is their position on appeal that even taking the factual allegations as true, there was

not a viable civil rights claim and the Court of Claims has exclusive jurisdiction over

claims seeking monetary damages against the state. The trial court agreed and

granted the motion to dismiss.

{¶15} We review the trial court’s decision de novo. Morway v. Durkin, 181

Ohio App.3d 195, 2009–Ohio–932, 908 N.E.2d 510, ¶ 18 (7th Dist.) (Review of Civ.R.

12(B)(1) ruling.); Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362,

814 N.E.2d 44, ¶ 5 (Review of Civ.R. 12(B)(6) ruling.). The standard of review for a

dismissal for lack of subject matter jurisdiction, pursuant to Civ.R. 12(B)(1), is

whether any cause of action cognizable by the forum has been raised in the

complaint. McKinney v. Noble Corr. Inst., 7th Dist. No. 10 NO 370, 2011-Ohio-3174,

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¶ 10, citing State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641

(1989). For a court to dismiss under Civ.R. 12(B)(6), “it must appear beyond doubt

from the complaint that the plaintiff can prove no set of facts entitling him to

recovery.” O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327

N.E.2d 753 (1975), syllabus. A Civ.R. 12(B)(6) motion tests only the legal sufficiency

of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio

St.3d 545, 548, 605 N.E.2d 378 (1992). In ruling on a Civ.R. 12(B)(6) motion, the

court must accept the factual allegations contained in the complaint as true and draw

all reasonable inferences from these facts in favor of the plaintiff. Mitchell v. Lawson

Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). If there is a set of facts

consistent with the complaint that would allow for recovery, the court must not grant

the motion to dismiss. York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144, 573

N.E.2d 1063 (1991).

{¶16} The trial court’s decision was correct. The Court of Claims has

exclusive jurisdiction over the claims. The Court of Claims is a court of limited

jurisdiction that has exclusive, original jurisdiction over claims brought against the

state as a result of the state's waiver of immunity in R.C. 2743.02. R.C. 2743.03

established the court of claims, granting it “exclusive, original jurisdiction of all civil

actions against the state permitted by the waiver of immunity contained in section

2743.02 of the Revised Code.” R.C. 2743.03(A)(1). Thus, claims seeking legal relief

from the state as permitted by the statutory waiver of immunity fall within the

exclusive jurisdiction of the court of claims. Id.; Cirino v. Ohio Bur. of Worker's

Comp., 8th Dist. No. 104102, 2016-Ohio-8323, ¶ 46, citing Measles v. Indus. Comm.

of Ohio, 128 Ohio St.3d 458, 2011-Ohio-1523, 946 N.E.2d 204, ¶ 7 (The court of

claims “has exclusive jurisdiction over civil actions against the state for money

damages that sound in law.”).

{¶17} R.C. Chapter 2743 does not divest other courts of jurisdiction “to hear

and determine a civil action in which the sole relief that the claimant seeks against

the state is a declaratory judgment, injunctive relief, or other equitable relief.” Santos

v. Ohio Bur. of Workers' Comp., 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, ¶

9; R.C. 2743.03(A)(2). Where claims for damages are coupled with claims for

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injunctive, declaratory or other equitable relief, however, all of the claims are within

the exclusive, original jurisdiction of the court of claims. R.C. 2743.03(A)(2).

{¶18} The complaint clearly seeks monetary damages from the state; each

Appellant sought five million dollars in damages. The damages were sought because

Appellants were allegedly denied their right to appeal a decision to Ohio ERAC; the

complaint stated, “The Environmental Review Appeals Commission created a denial

of Due Process of Law, the Equal Protection of the Law towards Appellants, making

an Appeal against the Ohio Environmental Protection Agency.” 9/12/16 Complaint.

The complaint sounded in law and was within the exclusive jurisdiction of the Court of

Claims.

{¶19} Ohio ERAC additionally argues the complaint also raised a civil rights

1983 claim. According to it, a 1983 claim cannot be raised against the state because

a state agency is not a person under 42 U.S.C. 1983. In response to this argument,

Appellants asserted they were not raising a 1983 claim. 10/20/16 Plaintiffs Reply.

However, Appellants did not explain what claim they were raising.

{¶20} Considering Appellants admission, it was not a 1983 claim. That said, it

is unclear what claim was raised and how it would fall outside the Court of Claims

exclusive jurisdiction. The complaint alleged no facts to demonstrate whether or not

any of the defendants, let alone Ohio ERAC, violated their due process rights or

equal protections rights.

{¶21} For these reasons, the trial court’s December 1, 2016 order is affirmed.

Appeal from the December 8, 2016 Order

{¶22} Three assignments of error are raised as follows:

“The Trial Court Judge ERRORED when he decided fact, that were to be

decided by a Jury.” [sic]

“The Judge created an error when he dismissed the Ohio Attorney General;

the State of Ohio and the Governor of the State of Ohio from the Civil Action based

on issues of an Appeal to the Ohio Environmental Review Appeals Commission,

when they claimed there were no new facts without the discovery process.” [sic]

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“The Judge created an error when he relied the State of Ohio; the Governor

and the Ohio Attorney General’s statements that the Court in Columbiana County

Ohio lacked jurisdiction to hear the Civil Action.” [sic]

{¶23} The brief for the appeal of the December 8, 2016 order also fails to

comply with the Appellate Rules. Appellants failed to comply with App.R. 12(A)(2).

They do not cite to any legal authority in support of their arguments. Furthermore,

the arguments are not developed and the arguments are unclear. That said, in the

interest of justice, we will address the decipherable issues.

{¶24} The Governor, Attorney General, and the State of Ohio moved to

dismiss the complaint based on Civ.R. 12(B)(1) and Civ.R. 12(B)(6). Appellees

Governor, Attorney General, and the State of Ohio asserted the Court of Claims has

exclusive jurisdiction over the claims. They also asserted the complaint failed to

state a claim upon which relief could be granted. The relief requested was either

available through an administrative process, was not something Appellees could

give, or Appellants had already attempted to achieve the result through the correct

means but were unsuccessful.

{¶25} The trial court agreed and granted the motion to dismiss.

{¶26} As stated above, we review the trial court’s decision de novo. Morway,

2009–Ohio–932 at ¶ 18; Perrysburg Twp., 2004-Ohio-4362, at ¶ 5.

{¶27} The trial court’s conclusion that it was without jurisdiction to decide the

monetary damages issue was correct. The court of claims “has exclusive jurisdiction

over civil actions against the state for money damages that sound in law.” Measles v.

Indus. Comm. of Ohio, 128 Ohio St.3d 458, 2011-Ohio-1523, 946 N.E.2d 204, ¶ 7.

{¶28} Furthermore, Appellants brought the underlying lawsuit seeking a court

order directing the “State” to replace the director of Ohio EPA, remove all of the

appointees of Ohio ERAC and replace them, and in replacing the appointees prohibit

the Governor from replacing the appointees with people who work for or have worked

for the Attorney General’s Office.

{¶29} As to replacing the director of Ohio EPA, and removing and appointing

new members to Ohio ERAC, a court cannot make such orders. As to Ohio ERAC,

statutory law dictates, the governor appoints the members with the advice and

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consent of the senate. R.C. 3745.02. The governor has the discretion to remove a

member of the commission from office for conflict of interest, malfeasance, or

nonfeasance, if certain notices and hearings are given and a statement is filed in the

Secretary of State’s Office. R.C. 3745.02. The statute states, “The action of the

governor in removing the member from office is final.” R.C. 3745.02.

{¶30} A writ of mandamus could be warranted to make a governor fill a

vacancy on Ohio ERAC. However, it would not be warranted to make the governor

exercise his discretion to fill the vacancy with a certain person or to remove a person

from the position:

Mandamus will not lie to control or limit the actions of the governor

when those actions are dependent upon his judgment or discretion. A

clear legal duty to act must be established before mandamus can

compel performance. While it does not lie to control discretion,

mandamus has been applied by the courts to compel the exercise of

that discretion.

State Ex Rel. Schiering v. Celeste, 10th Dist. No. 83AP-241, 1983 WL 3622. See

also, State ex rel. AFSCME v. Taft, 156 Ohio App.3d 37, 2004-Ohio-493, 804 N.E.2d

88, ¶ 59 (3rd Dist.) (An executive decision on the allocation of funds or budget cuts is

an act that is discretionary in nature and mandamus will not lie in a case where the

Governor makes an executive decision to reduce the allocation of funds to state

departments, agencies, offices, etc. in order to keep the state budget balanced,

unless it could be found that the Governor clearly abused his discretion by neglecting

or refusing to take any action to do so.); State ex rel. Gilligan v. Hoddinott, 36 Ohio

St.2d 127, 127–28, 304 N.E.2d 382, 383 (1973) (“The writ of prohibition will issue to

prevent a court from interfering with the Governor in the exercise of his discretionary

powers as chief executive, absent a clear showing of abuse of that discretion; that

interference being such a usurpation of power that it exceeds the court's

jurisdiction.”).

{¶31} Thus, the relief sought could not be granted.

{¶32} Furthermore, any request for the operating permits of the Negley, Ohio

Landfill to be voided was already adjudicated in Ohio ERAC; the claims in this case

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are merely a collateral attack on that judgment. Appellants appealed Ohio ERAC’s

decision to dismiss their appeal of the Ohio EPA’s decision concerning permits to the

Negley, Ohio Landfill. Wallace v. Nally, 7th Dist. No. 14 CO 32, 2015-Ohio-4146.

We affirmed that decision. Therefore, the issue regarding the permits has been

adjudicated and is final. Appellants cannot collaterally attack the judgment. See

Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 653 N.E.2d 226 (1995). There was

no relief the trial court could grant on that request.

{¶33} For these reasons, the trial court’s December 8, 2016 decision is

correct.

Conclusion

{¶34} Appellants’ assignments of error are without merit. The trial court’s

December 1, 2016 and December 8, 2016 judgments are affirmed.

Donofrio, J., concurs.

Waite, J., concurs.