Holmes v. Union Gospel Press

• Decision Date: 23 December 1980
• Docket Number: No. 80-481,80-481
• Citation: 414 N.E.2d 415,64 Ohio St.2d 187
• Parties: , 18 O.O.3d 405 HOLMES, Appellant, v. UNION GOSPEL PRESS et al., Appellees.
• Court: Ohio Supreme Court

Page 187

64 Ohio St.2d 187

414 N.E.2d 415, 18 O.O.3d 405

HOLMES, Appellant, v. UNION GOSPEL PRESS et al., Appellees.

No. 80-481.

Supreme Court of Ohio.

Dec. 23, 1980.

Oberholtzer, Filous & Chase and John C. Oberholtzer, Medina, for appellant.

William J. Brown, Atty. Gen., and Eugene P. Nevada, Asst. Atty. Gen., for appellee Bureau of Employment Services.

Ronald Stanford Kahn and Lester J. Farber, Cleveland, for appellee Union Gospel Press.

PER CURIAM.

The sole issue raised by this appeal is whether R.C. 4141.28(H) is unconstitutional on its face. This section gives any interested party the right to appeal an administrator's decision on reconsideration to the board of review within 14 calendar days after the decision on reconsideration was mailed to the last known post office address of the appellant.

Appellant argues that the statute is unconstitutional because it denies him due process of law by barring his appeal when he does not file it within the time required by the statute. He argues that the statute should be interpreted to create only a rebuttable presumption.

The United States Supreme Court, in the case of Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, stated the test to be applied in determining whether a statute providing for notice is constitutional. The court stated, at page 314, 70 S.Ct. at 657, that the notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." We have consistently held that where a statute confers a right of appeal, as in the instant case, strict adherence to the statutory conditions is essential for the enjoyment of the right to appeal. American Restaurant & Lunch Co. v. Glander (1946), 147 Ohio St. 147, 70 N.E.2d 93; Zier v. Bureau of Unemployment Compensation (1949), 151 Ohio St. 123, 84 N.E.2d 746; Todd v. Garnes (1975), 44 Ohio St.2d 56, 337 N.E.2d 790.

In the recent case of In re Foreclosure of Liens (1980), 62 Ohio St.2d 333, 405 N.E.2d 1030, we rejected an argument similar to appellant's argument in this case. In that case, the constitutionality of R.C. 5721.18(B) was attacked on the ground that it provided only for a copy of a notice of the filing of a foreclosure action to be mailed by ordinary mail to the address of the person set forth in the complaint. At page 336, 405 N.E.2d 1030, we stated the law as follows:

"The constitutionality of a notice mechanism is dependent upon the likelihood of its ultimate success in notifying an interested party of a pending action. The precise test was articulated by the United States Supreme Court in Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, wherein the court held, at page 314, 70 S.Ct. at 657, that a method for providing notice must be 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' "

We held that the notice mechanism provided in R.C. 5721.18(B) was reasonably calculated to give interested parties notice of a pending action.

There is no significant distinction between the effect of the notice requirement in R.C. 4141.28(H) and 5721.18(B). The requirement of R.C. 4141.28(H), that the administrator's decision on reconsideration be mailed "to the last known post office address of the appellant," contemplates that the administrator will mail the copy of the decision to the most current address available in the records of the bureau. That requirement is reasonably calculated to apprise the appellant of the decision and to afford him an opportunity to appeal within rule. R.C. 4141.28(H) meets the test of Mullane, supra, and In re Foreclosure of Liens, supra, and is therefore not unconstitutional on its face.

Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

CELEBREZZE, C. J., and WILLIAM B. BROWN, PAUL W. BROWN, SWEENEY, HOLMES and MOYER, JJ., concur.

LOCHER, J., dissents.

MOYER, J., of the Tenth Appellate District, sitting for DOWD, J.

LOCHER, Justice, dissenting.

I dissent from the majority opinion which, in effect, creates an irrebuttable presumption denying the claimant a right to appeal from the failure to file an appeal within 14 days, where the claimant did not receive notice of the adverse decision within that same 14-day period.

Reliance on Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, is misdirected in that the test of notice of "reasonably calculated, under all the circumstances" is expressly limited to those situations in which there are "practicalities and peculiarities."

The United States Supreme Court, in Mullane, supra at pages 314-315, 70 S.Ct. at 657, stated:

"* * * But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. * * *

" * * * The reasonableness and hence the...