To the extent that the majority opinion holds that the Court of Claims has no jurisdiction to entertain injunctive and declaratory relief in the Court of Claims in reliance uponRacing Guild of Ohio, Local 304 v. State Racing Comm. (1986),28 Ohio St. 3d 317, 28 OBR 386, 503 N.E.2d 1025, I must respectfully dissent since such determination is inconsistent, not only with numerous prior judgments of this court but, also, with judgments of the Supreme Court and the statute itself.
Paragraph one of the syllabus of Racing Guild reads as follows:
"An action for injunctive relief may be brought against the state, as defined in R.C. 2743.01(A), in a court of common pleas. (Brownfield v. State [1980], 63 Ohio St. 2d 282 [17 O.O.3d 181, 407 N.E.2d 1365], overruled in part.)" *Page 837
Confusion had been created by the Brownfield case, partly overruled by Racing Guild, from a statement at 283-284, 17 O.O.3d at 182, 407 N.E.2d at 1366, of the per curiam opinion:
"* * * Appellants have not referred this court to any statute, nor has independent research disclosed one, authorizing the maintenance of an injunctive action directly against the state of Ohio in a Court of Common Pleas. We do not believe that the state has consented to such a suit in that forum. For this reason, we hereby dismiss the state of Ohio as a party to this cause." (Emphasis added; footnotes omitted.)
Both the Brownfield and Racing Guild decisions are reconcilable if the provisions of prior case law and the present statute are analyzed and properly applied. In this regard, we must note that Racing Guild overruled Brownfield only to the extent that there was an inconsistency without elucidating as to the nature of the inconsistency. In waiving the state's immunity to suit and consenting to actions being brought in the Court of Claims against the state, R.C. 2743.02(A) states that "* * * [t]o the extent that the state has previously consented to be sued, this chapter has no applicability." The difficulty arises from the definition of "state" in R.C. 2743.01(A) as follows:
"`State' means the state of Ohio, including, without limitation, its departments, boards, offices, commissions, agencies, institutions, and other instrumentalities. It does not include political subdivisions."
Under case law prior to the adoption of R.C. Chapter 2743, a distinction was sometimes made between state officers and the state itself. This distinction is well set forth in State exrel. Williams v. Glander (1947), 148 Ohio St. 188, 35 Ohio Op. 192,74 N.E.2d 82, relied upon in Brownfield and Am. Life Acc. Ins.Co. v. Jones (1949), 152 Ohio St. 287, 40 Ohio Op. 326,89 N.E.2d 301, relied upon in Racing Guild. In the opinion ofWilliams, 148 Ohio St. at 193, 35 O.O. at 194-195,74 N.E.2d at 85, it is stated:
"In 49 American Jurisprudence, 304, Section 92, it is said:
"`While a suit against state officials is not necessarily a suit against the state, within the rule of immunity of the state from suit without its consent, that rule cannot be evaded by bringing an action nominally against a state officer or a state board, commission, or department in his or its official capacity when the real claim is against the state itself, and the state is the party vitally interested. If the rights of the state would be directly and adversely affected by the judgment or decree sought, the state is a necessary party defendant, and if it cannot be made a party, that is, if it has not consented to be sued, the suit is not maintainable. * * *'" *Page 838
The fourth paragraph of the syllabus of Am. Life Acc. Ins.Co. reads as follows:
"An action against the administrator of a state bureau for a declaratory judgment pronouncing the rights, status or other legal relations of the plaintiff with reference to a statute is not an action against the state, even though other incidental relief is granted."
Accordingly, the syllabus of Racing Guild must be read in light of the prior court decisions. Prior decisions authorized "or consented" to suits against state officers and agencies in declaratory judgment and injunction, but not against the state itself. Thus, the opinion of Racing Guild holds that, to the extent that prior case law permitted suits against the state as defined by R.C. 2743.01(A) in a court of common pleas, they still could be maintained in that court. Such suits, however, were permitted against the "state" as so defined only if no relief was sought directly against the state.
This court has repeatedly attempted to make this distinction commencing with State ex rel. Ferguson v. Shoemaker (1975),45 Ohio App. 2d 83, 74 O.O.2d 109, 341 N.E.2d 311, wherein we held at 96, 74 O.O.2d at 116, 341 N.E.2d at 319:
"A direct action on a contract with the state, seeking monetary relief from the state, must be commenced and prosecuted in the Court of Claims and cannot be brought in the Court of Common Pleas. However, where appropriate, injunctive relief may be sought against a state officer, even though it involves a state contract, and the action for such relief may be brought in the Court of Common Pleas. * * *"
We noted that not all cases against state officers are actions against the state itself barred by the former doctrine of sovereign immunity noting in particular that mandamus will lie and is not considered an action against the state, citingState ex rel. Nichols v. Gregory (1935), 130 Ohio St. 165, 4 Ohio Op. 59, 198 N.E. 182. We also stated in 45 Ohio App.2d at 91, 74 O.O.2d at 113, 341 N.E.2d at 316:
"Although the action in the Court of Common Pleas sought to be prohibited is in injunction rather than mandamus, the same principles apply. An action brought in a Court of Common Pleas for an injunction against a state officer is not per se precluded by R.C. Chapter 2743, creating and vesting jurisdiction in the Court of Claims; such an action may be proper irrespective of the doctrine of sovereign immunity. * * *"
On the other hand, in A.F.S.C.M.E. v. Blue Cross of CentralOhio (1979), 64 Ohio App. 2d 262, 18 O.O.3d 227, 414 N.E.2d 435, we expressly held that the Court of Claims has jurisdiction to render a declaratory judgment as well as to *Page 839 afford equitable relief, such as injunction. In the course of the opinion at 265, 18 O.O.3d at 229, 414 N.E.2d at 438, we stated:
"Defendants argue that plaintiffs' complaint is an action against officers of the state rather than the state of Ohio. The cases cited by defendants are all cases in which employees or officers of the state, not the state of Ohio, were the parties. They are cases involving actions to enjoin an employee or officer of the state from performing some act or to require him to perform an act. The fact that the state consented to permit its officers and employees to be sued in the Court of Common Pleas in those cases does not mean the state consented to itself be sued in those cases. * * *"
We considered this same issue in Plastic Surgery Associates,Inc. v. Ratchford (1982), 7 Ohio App. 3d 118, 7 OBR 151,454 N.E.2d 567, with respect to the jurisdiction of the Court of Claims. Our decision therein is consistent with the decision of the Supreme Court in Racing Guild, stating at 121, 7 OBR at 154,454 N.E.2d at 571:
"Prior to the consent of the state itself to be sued, it was generally recognized that state officers and agencies were subject to actions in injunction, mandatory injunction, mandamus and declaratory judgment so long as direct relief was not sought against the state but, instead, the remedy sought was to compel the officer or agency to perform a duty enjoined by law. Thus, declaratory judgment actions could be brought against state agencies, but the state itself could not be a party to such action. * * *"
We further expressly found, however, where direct relief is sought against the state itself, rather than merely against a state officer or agency, the Court of Claims does have jurisdiction of an action for declaratory and injunctive relief predicated upon action or inaction of a state officer or agency. This conclusion is consistent with Racing Guild, since RacingGuild found merely that, to the extent an action was previously authorized against the "state" as defined by R.C. 2743.01(A), an action for injunction or declaratory judgment could be brought in the court of common pleas.
Racing Guild did not purport to determine the jurisdiction of the Court of Claims and, consistent with Racing Guild, to the extent that prior case law did not permit an action in declaratory judgment or injunction to be brought against the "state" as defined in R.C. 2743.01(A), it must necessarily be concluded that such action may be maintained in the Court of Claims.
We further attempted to clarify the issue in State ex rel.Polaroid Corp. v. Denihan (1986), 34 Ohio App. 3d 204,517 N.E.2d 1021 (also consistent with Racing Guild), and we stated at 211,517 N.E.2d at 1029: *Page 840
"* * * We know of no case holding that an action in injunction may not be brought in a common pleas court to prevent a state officer from committing an illegal act. Under such circumstances, the state's interests are advanced by the person bringing the action rather than the state official. There is no reason to bring the action against the state itself since the state officer, by attempting to perform an illegal act, is acting contrary to the state's interests. Only when the real party in interest is the state itself, rather than the state officer, is an action brought against a state officer, whether in injunction or declaratory judgment, deemed to be an action against the state and, thus, required to be brought in the Court of Claims. See West Park Shopping Center v. Masheter (1966),6 Ohio St. 2d 142, 35 O.O.2d 216, 216 N.E.2d 761. * * *"
In Polaroid, we distinguished Friedman v. Johnson (1985),18 Ohio St. 3d 85, 18 OBR 122, 480 N.E.2d 82, which found exclusive jurisdiction in the Court of Claims of an action which sought declaratory and injunctive relief against the state. At 87, 18 OBR at 123-124, 480 N.E.2d at 83-84, of the per curiam opinion, it is stated in part:
"In the present case appellees sought injunctive, declaratory, and other necessary and proper relief. Further, the court of appeals remanded the cause for determination of damages. We must determine whether the court of common pleas has concurrent jurisdiction over this case, or whether the Court of Claims has exclusive subject matter jurisdiction.
"To begin, it is beyond dispute that this is a suit against the state. R.C. 2743.01(A) defines `state' as including its `agencies'; DMRDD is a state agency. Although the named defendants are certain DMRDD officials, the conduct in question concerns agency policy. * * *
"It is also clear that had appellees sued solely for declaratory relief the court of common pleas would have jurisdiction. The state had consented to declaratory judgment suits prior to 1975. * * * However, appellees attached a prayer for injunctive relief as well and, further, the cause has been remanded for a determination of damages. Standing alone, each of the latter two requests is within the exclusive, original jurisdiction of the Court of Claims." (Citations omitted.)
The issue is compounded by the dual definition of "state" in R.C. 2743.01(A) which necessarily includes some actions which were not considered actions against the state under prior case law and some actions which were considered actions against the state and, thus, precluded by the prior doctrine of sovereign immunity. Under prior case law, where an action for relief, whether in mandamus or injunction, was brought against a state officer and agency seeking to enforce the interests of the state by having the state officer *Page 841 or agency be compelled to follow state law, the action was not deemed one against the state since it is in the state's interest to have its law followed by its officers and agencies. On the other hand, where the relief sought was adverse to the interests of the state, whether in declaratory judgment, injunction or damages, no action against the state could be maintained. The state arguably "consented" to suit in the former instance, but did not in the latter. Thus, with respect to the latter type of claim against the state, there has been no prior consent and, necessarily, an action in the Court of Claims against the state is appropriate even though founded in declaratory judgment or injunction. We expressly held in Plastic Surgery, supra, that no direct or indirect ancillary request for damages need be the basis for the Court of Claims' jurisdiction in order for a claim in declaratory judgment or injunction directly against the state and against the state's interest be maintained in the Court of Claims. As noted, such determination is consistent withRacing Guild, which determined only when an action against the "state" could be maintained in the court of common pleas, but did not determine when and to what extent an action in declaratory judgment or injunction could be maintained in the Court of Claims directly against the state itself.
Since I find that the Court of Claims has jurisdiction over the claims for declaratory judgment and injunction, it necessarily follows that the judgment should be reversed and the cause remanded to that court for further consideration. We reached a similar conclusion in Richard v. Ohio Dept. of LiquorControl (1986), 29 Ohio App. 3d 133, 29 OBR 149, 504 N.E.2d 724. Accordingly, I dissent.