Hartman, In re, 82-19

• Decision Date: 05 January 1983
• Docket Number: No. 82-19,82-19
• Citation: 443 N.E.2d 516,2 Ohio St.3d 154
• Parties: , 2 O.B.R. 699 In re HARTMAN, Alleged Juvenile Traffic Offender.
• Court: Ohio Supreme Court

Page 154

2 Ohio St.3d 154

443 N.E.2d 516, 2 O.B.R. 699

In re HARTMAN, Alleged Juvenile Traffic Offender.

No. 82-19.

Supreme Court of Ohio.

Jan. 5, 1983.

Syllabus by the Court

R.C. 2501.02 grants the courts of appeals jurisdiction over appeals from juvenile court judgments and final orders rendered in juvenile traffic offender proceedings.

On July 5, 1981, appellant, Michael W. Hartman, was cited as a juvenile for operating a motor vehicle while under the influence of alcohol, a violation of R.C. 4511.19. On October 15, 1981, the Juvenile Court of Van Wert County adjudged appellant to be a juvenile traffic offender. Appellant was sentenced November 16, 1981.

That same day, appellant, through his counsel, filed a notice of appeal from the judgment with the court of appeals. On November 19, 1981, the appellate court, sua sponte, dismissed the appeal for want of jurisdiction, asserting that R.C. 2501.02 does not provide for the appeal of juvenile court judgments relating to juvenile traffic offenders.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Stephen P. Gehres, Van Wert, for appellant.

Stephen E. Keister, Pros. Atty., and Charles F. Koch, Van Wert, for appellee.

LOCHER, Justice.

We are presented with the following question for review: Does R.C. 2501.02 proscribe the appeal of juvenile court judgments and final orders rendered in juvenile traffic offender proceedings? In particular, this court must determine the import of the word "including" as used in the statute, for the disposition of the instant matter is clearly contingent upon the meaning herein ascribed to that term.

R.C. 2501.02(A) provides that the courts of appeals shall have jurisdiction:

"Upon an appeal upon questions of law to review, affirm, modify, set aside, or reverse judgments or final orders of courts of record inferior to the court of appeals within the district, including the finding, order or judgment of a juvenile court that a child is delinquent, neglected, abused, or dependent, for prejudicial error committed by such lower court."

The court of appeals, in the case at bar, ruled that only the classifications of juvenile court judgments specifically enumerated following the term "including" in R.C. 2501.02(A) are appealable. Appellant contends, however, that these classifications are merely examples of appealable juvenile court judgments. After carefully scrutinizing the disputed provision, we are convinced that appellant states the better case.

In discerning the meaning of "including" as the General Assembly intended to employ the term in R.C. 2501.02, the dictates of the codified rules of statutory construction and, in particular, R.C. 1.42, must be followed. R.C. 1.42 states, in relevant part, that: "Words and phrases shall be read in context and construed according to the rules of grammar and common usage. * * * "

To ascertain the common usage of the word "including," it is appropriate to consult Webster's Third New International Dictionary. Therein, "include" of which "including" is a participle is defined as meaning:

"[T]o place, list, or rate as a part or component of a whole or of a larger group, class, or aggregate. * * * To take in, enfold, or comprise as a discrete or subordinate part or item of a larger aggregate group or principle. * * * "

In short, "including" implies that that which follows is a partial, not an exhaustive listing of all that is subsumed within the stated category. "Including" is a word of expansion rather than one of limitation or restriction. Indeed, the United States Supreme Court, defining "including" within the context of Section 26 of the Federal Farm Loan Act of 1916, stated that "the term 'including' is not one of all-embracing definition, but connotes simply an illustrative application of the general principle." Federal Land Bank of St. Paul v. Bismarck Lumber Co. (1941), 314 U.S. 95, at 100, 62 S.Ct. 1 at 4, 86 L.Ed. 65. See, also, Phelps Dodge Corp. v. NLRB (1941), 313 U.S. 177, 189, 61 S.Ct. 845, 850, 85 L.Ed. 1271, where "including" was similarly defined in relation to Section 10(c) of the National Labor Relations Act.

The use of the word "including" in R.C. 2501.02 can only be said to enumerate some, but not all, of the classes of juvenile court judgments subject to appeal. The employment of the term in no way denies those adjudged juvenile traffic offenders the right of appeal. Had the General Assembly intended to except juvenile court adjudications involving such offenders from the treatment accorded adjudications relating to delinquent, neglected, abused or dependent children, it could easily have done so by adopting the necessary exclusionary language. This, it chose not to do. Consequently, the court of appeals has jurisdiction over the subject judgment just as it does, pursuant to R.C. 2501.02, over other final judgments rendered by inferior courts of record. For us to hold otherwise would be to construe "including" as a term of limitation and exclusion, in direct contravention of clear legislative intent and common word usage.

The case at bar offers what is for this court a novel legal question. The United States Fifth Circuit Court of Appeals, however, previously addressed virtually the same issue when it was asked to define "including," as the word was used in a federal statute delineating the jurisdiction of the Customs Court. Argosy Limited v. Hennigan (1968), 404 F.2d 14. In holding that the term was to be read within the context of Section 1583, Title 28, U.S.Code ¹ in an expansive rather than restrictive manner, the court stated that "including" "conveys the conclusion that there are other items includable, though not specifically enumerated by the statutes." Id. at 20. We can but agree with the logic expressed in Argosy and follow it in reaching our decision today. See, also, United States v. Huber (C.A.2, 1979), 603 F.2d 387.

Finally, this court finds R.C. 2151.01 to compel the herein ruling. This statute provides, in pertinent part:

"The sections in Chapter 2151 of the Revised Code, with the exception of those sections providing for the criminal prosecution of adults, shall be liberally interpreted and construed so as to effectuate the following purposes:

" * * *

"(D) To provide judicial procedures through which Chapter 2151 of the Revised Code is executed and enforced, and in which the parties are assured of a fair hearing, and their constitutional and other legal rights are recognized and enforced."

For us to hold that juvenile court judgments relating to juvenile traffic offender proceedings are not appealable would scarcely constitute the liberal construction mandated by R.C. 2151.01. Absent explicit authorizing language, the juvenile courts may not wield unilateral, non-reviewable power to adjudicate juvenile traffic offender complaints. This court cannot award to juvenile courts by judicial fiat that which was not endowed by statute.

Accordingly, the appellate court's judgment dismissing, sua sponte, appellant's appeal for lack of jurisdiction is reversed, and the cause is remanded to the court of appeals for further proceedings as are consistent with this opinion.

Judgment reversed and cause remanded.

WILLIAM B. BROWN, SWEENEY and CLIFFORD F. BROWN, JJ., concur.

FRANK D. CELEBREZZE, C.J., and HOLMES and KRUPANSKY, JJ., dissent.

FRANK D. CELEBREZZE, Chief Justice, dissenting.

Because I would affirm the court of appeals, I must respectfully dissent.

In my view, the majority incorrectly reads into R.C. 2501.02 the right to appeal a finding of a juvenile court that a child is a juvenile traffic offender. As a result, I feel that the court of appeals below correctly dismissed the instant appeal for lack of jurisdiction.

R.C. 2501.02(A) grants the courts of appeals jurisdiction only over an "order or judgment of a juvenile court that a child is delinquent, neglected, abused, or dependent." Plainly absent is a grant of jurisdiction to the court of appeals over an order of a juvenile court that a child is a juvenile traffic offender.

The majority seizes upon the word "including" as used in R.C. 2501.02(A) to justify its determination that such a right to appeal exists. While I have no quarrel with the majority's extensive treatment of the definition of "including," I am convinced that the word's placement in the statute does not lead to the result reached by the majority. "Including" in R.C. 2501.02 clearly modifies "judgments or final orders of courts of record inferior to the court of appeals within the district." It does not modify, as the majority reasons, "judgment of a juvenile court." Consequently, it is a strained interpretation of R.C. 2501.02(A) that would hold that the list of appealable juvenile court orders in the above statute is non-exclusive.

Moreover, as I stated in In re Becker (1974), 39 Ohio St.2d 84, 314 N.E.2d 158 , a case interpreting R.C. 2501.02(A), " * * * specifically, absent a finding that a child is delinquent, neglected, or dependent, no appeal is available." Id. at 86, 314 N.E.2d 158.

At the time of the decision in Becker, supra, R.C. 2501.02(A) only listed "delinquent, neglected, or dependent." The statute has since been amended to include "abused" children cases. Thus, a majority of this court has previously expressed its opinion that the list of juvenile court judgments which are appealable under R.C. 2501.02(A) is exclusive.

The majority states, " * * * [t]his court cannot award to juvenile courts by judicial fiat that which was not endowed by statute." Ironically, the majority disregards its own admonition by awarding appellate jurisdiction to the courts of appeals over matters specifically excluded from the grant of jurisdiction by the General Assembly. Often we walk a fine line between judicial interpretation and judicial legislation. In the cause sub judice, the majority has wandered across that line into the realm of the General Assembly to...