Hughes v. Ohio Dept. of Commerce
| Decision Date | 27 June 2007 |
| Docket Number | No. 2006-0107.,2006-0107. |
| Parties | HUGHES, Appellant, v. OHIO DEPARTMENT OF COMMERCE, Division of Financial Institutions, Appellee. |
| Court | Ohio Supreme Court |
Jones Day and Fordham E. Huffman; and Sidley Austin L.L.P., Scott Mendeloff, and Gabriel Aizenberg, for appellant.
Marc Dann, Attorney General, and Stephen Carney, Senior Deputy Solicitor; and Porter Wright Morris & Arthur, Kathleen Trafford, and Polly Harris, Columbus, for appellee.
{¶ 1} This case poses two questions concerning jurisdictional requirements for appeal of an agency's final adjudication order. First, must an agency strictly comply with the requirements of R.C. 119.09 before the 15-day appeal period prescribed in R.C. 119.12 commences; and second, must the original notice of appeal be filed with the agency rather than the common pleas court. Answering both questions in the affirmative, we reverse and dismiss this case.
{¶ 2} Natalie Hughes, a director of the United Telephone Credit Union in Rocky River, Ohio, appeals from a decision by the Tenth District Court of Appeals that failure to file the original notice of appeal with the agency required dismissal for lack of jurisdiction. On May 28, 2003, the Ohio Department of Commerce, Division of Financial Institutions ("the agency"), had issued a notice of intent to remove Hughes as a director. She did not request a hearing,1 and the agency issued a final order removing her from office and prohibiting her further participation ("removal order") on July 23, 2003. The removal order contained a "Notice of Appeal Rights," which explained that Hughes had a right to appeal by filing a notice of appeal with the agency and a copy with the Franklin County Court of Common Pleas within 15 days from the mailing of the removal order.
{¶ 3} Hughes filed her original notice of appeal with the Court of Common Pleas of Franklin County and a photocopy of the notice of appeal with the agency. The agency filed a motion to dismiss on grounds that R.C. 119.12 requires that the original notice of appeal be filed with the agency rather than the court of common pleas. Hughes responded with several arguments: first, that the removal order was void because it was not signed by the superintendent as required by R.C. 1733.181; second, that the agency invited any alleged error in filing the notice when it rejected the tender of an original notice of appeal;2 third, that the agency failed to comply with R.C. 119.09 because it did not send her a certified copy of the removal order; and fourth, that the removal order failed to correctly state the method for perfecting an appeal.
{¶ 4} The common pleas court initially granted the motion to dismiss on the ground that the original notice of appeal was not filed with the agency. On reconsideration, however, the court determined that R.C. 119.12 does not specify that the original notice of appeal must be filed with the agency. Nevertheless, because the order was not signed by the superintendent, and thus was not final or appealable, the common pleas court remanded the matter to the agency for issuance of a final, appealable order.
{¶ 5} The agency appealed to the Tenth District Court of Appeals and argued that because Hughes had not properly filed the original notice of appeal with the agency, the common pleas court lacked jurisdiction over the administrative appeal. Hughes disputed the agency's claim that the failure to file an original with the agency was a jurisdictional defect and once again raised issues of deficiencies in the notice of appeal rights, as well as the remainder of the removal order.
{¶ 6} The Tenth District determined that compliance with R.C. 119.09 was not raised in the assignments of error and was not germane to its review. Hughes v. Ohio Dept. of Commerce, Div. of Fin. Institutions, Franklin App. No. 04AP-1386, 2005-Ohio-6368, 2005 WL 3220219, ¶ 7. Observing that parties must strictly adhere to the filing requirements of R.C. 119.12 to properly perfect an administrative appeal and to invoke the jurisdiction of a common pleas court, the court of appeals held that Hughes's filing of a copy of her notice of appeal with the agency was a jurisdictional defect because the filing did not strictly comply with R.C. 119.12. Id. at ¶ 12, 15. The court of appeals reversed and instructed the common pleas court to dismiss the case for lack of jurisdiction. Id. at ¶ 16.
{¶ 7} We accepted Hughes's discretionary appeal. Both parties argue that the common pleas court lacked jurisdiction over the administrative appeal, but for different reasons. Hughes contends that there was no final, appealable order from which to appeal because the agency failed to strictly comply with R.C. 119.09. The agency asserts that Hughes failed to properly perfect her appeal under R.C. 119.12; by filing the original notice of appeal with the agency, the common pleas court did not have jurisdiction to consider whether the removal order complied with R.C. 119.09. There are two statutes to address.
{¶ 8} Adjudication hearings for certain state agencies, including appellee, are governed by R.C. 119.09. The last paragraph of R.C. 119.09 explains how an agency must notify a party affected by an administrative order:
{¶ 9} The rights of a party who wishes to appeal from an administrative order are found in R.C. 119.12:
{¶ 10} We have already addressed whether an agency must fully comply with the procedural requirements of R.C. 119.09 before the time for appeal in R.C. 119.12 begins to run. Sun Refining & Marketing Co. v. Brennan (1987), 31 Ohio St.3d 306, 31 OBR 584, 511 N.E.2d 112. In Sun Refining, the board of building appeals upheld an order to shut down an unfired pressure vessel. The board never sent a copy of the order to the company but sent an uncertified rather than certified copy of the order to the company's attorney. The common pleas court denied both the board's motion to dismiss, which was based on the company's failure to perfect the appeal within the time allowed, and the company's motion to dismiss, which was based on the board's failure to comply with R.C. 119.09. The court of appeals held that the common pleas court did not have jurisdiction over the appeal because the company had failed to file a notice of appeal with the board within the 15-day period set forth in R.C. 119.12. We reversed and dismissed the case, holding that the procedural requirements of R.C. 119.09 are a condition precedent to the running of the 15-day appeal period. We stated, "The fifteen-day appeal period provided in R.C. 119.12 does not commence to run until the agency whose order is being appealed fully complies with the procedural requirements set forth in R.C. 119.09." Sun Refining, 31 Ohio St.3d 306, 31 OBR 584, 511 N.E.2d 112, syllabus.
{¶ 11} The agency argues that Sun Refining does not apply, because the same due process concerns do not exist since the agency did send a copy of its decision to Hughes. A similar issue was presented to us in Cleveland Elec. Illum. Co. v. Lake Cty. Bd. of Revision, 96 Ohio St.3d 165, 2002-Ohio-4033, 772 N.E.2d 1160. In Cleveland Elec. Illum., a certified copy was sent to the aggrieved party, but the board of revision did not certify notice of its action to the tax commissioner, as required by R.C. 5715.20. We stated that compliance with the statutory requirement for the board to certify notice of its action to the tax commissioner was mandatory. Cleveland Elec. Illum. at ¶ 13. We also held that "as long as R.C. 5715.20 requires a board of revision to certify notice of its action to the Tax Commissioner, notices must be mailed to the Tax Commissioner before the R.C. 5717.01 appeal time will begin to run." Id. at ¶ 18.
{¶ 12} We see no reason to depart from Sun Refining's holding that the time for appeal does not begin to run until the agency complies with R.C. 119.09. The plain language of the statute informs an agency what it must do when it issues a final order. We will, therefore, examine whether the agency strictly complied so as to trigger Hughes's time for appeal.3
{¶ 13} R.C. 119.09 requires an agency to serve, by certified mail, return receipt requested, a certified copy of the order upon the affected party. The order must include a statement of the time for appeal and the method for perfecting an appeal. Hughes contends that the agency failed to send her a certified copy of its decision and also failed to inform her of the correct method for perfecting an appeal because it did not state that R.C. 119.12 requires the original notice of appeal to be filed with the agency. Certification of the administrative order and the content of the notice of appeal rights are two separate issues.
{¶ 14} R.C. 119.01, the definitional section for the chapter on administrative procedure, does not define the term "certified copy." Unless words are otherwise defined or a contrary intent is clearly expressed, we give words in a statute their plain and ordinary meaning. Ohio Assn. of Pub. School Emps., Chapter No. 672 v. Twin Valley Local School Dist. Bd....
To continue reading
Request your trial
-
Welsh Dev. Co. v. Warren County Reg'l Planning Comm'n
...the notice of appeal to be filed with the agency and, thereafter, a copy of the notice filed with court. See Hughes v. Ohio Dept. of Commerce, 114 Ohio St.3d 47, 2007-Ohio-2877, 868 N.E.2d 246, ¶ Guysinger, 66 Ohio App.3d 353, 584 N.E.2d 48, and its progeny additionally wish to inject a R.C......
-
Brisker v. Ohio Dep't of Ins.
...manner provided in this section shall invalidate any order entered pursuant to the hearing." We observe that in Hughes v. Ohio Department of Commerce, 114 Ohio St. 3d 47, 2007-Ohio-2877, 868 N.E.2d 246, the Supreme Court of Ohio found that there must be strict compliance with Chapter 119 in......
-
Colonial Village v. Bd. of Rev.
...822 N.E.2d 424, ¶ 13. {¶ 15} Finally, this case differs from the situation we recently confronted in Hughes v. Ohio Dept. of Commerce, 114 Ohio St.3d 47, 2007-Ohio-2877, 868 N.E.2d 246. In that case, the state agency failed to serve notice of its decision as required by R.C. 119.09, with th......
- Karvo Cos. v. Ohio Dep't of Transp.
-
How lethal injection reform constitutes impermissible research on prisoners.
...tennessee-resumes-lethal-injection.php. (199.) See infra app. 1. (200.) See, e.g., Hughes v. Ohio Dep't of Commerce, 868 N.E.2d 246, 250 (Ohio 2007); Matter of Sales Tax Refund Applications of Black Hills Power & Light Co., 298 N.W.2d 799, 802 (S.D. 1980); Malloy v. Zoning Bd. of Adjust......