TBC Westlake, Inc. v. Hamilton County Bd. of Revision

• Decision Date: 11 February 1998
• Docket Number: No. 97-646,97-646
• Citation: 689 N.E.2d 32,81 Ohio St.3d 58
• Parties: TBC WESTLAKE, INC., Appellee, v. HAMILTON COUNTY BOARD OF REVISION; Rhodes, Hamilton County Auditor et al., Appellants.
• Court: Ohio Supreme Court

Page 58

81 Ohio St.3d 58

689 N.E.2d 32

TBC WESTLAKE, INC., Appellee, v. HAMILTON COUNTY BOARD OF REVISION; Rhodes, Hamilton County Auditor et al., Appellants.

No. 97-646.

Supreme Court of Ohio.

Submitted Sept. 30, 1997.

Decided Feb. 11, 1998.

Wayne E. Petkovic, Columbus, for appellee.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Thomas J. Scheve, Assistant Prosecuting Attorney, for appellant Hamilton County Auditor.

Klaine, Wiley, Hoffman & Minutolo, and Franklin A. Klaine, Jr., Cincinnati, for appellant Sycamore Community School District Board of Education.

PER CURIAM.

We reverse the portion of the BTA's decision that did not value the separate bank building and remand the case for it to value such building. We affirm the remainder of the BTA's decision.

In proposition of law No. 1, appellants contend that the BTA should have distributed the attorney-examiner's report to the parties. They essentially claim that Ohio's open meeting and public records laws require this.

R.C. 5717.01 authorizes the BTA to hear appeals of valuation complaints, "[to] cause its examiners to conduct such hearing and to report to it their findings for affirmation or rejection."

Appellants do not claim that R.C. 119.09 requires the BTA to serve its examiners' reports on the appellants. Indeed, R.C. 119.01, in defining "agency," does not identify the BTA as one of the agencies specifically subject to this chapter. Appellants, however, contend that R.C. 121.22, the Sunshine Law, and R.C. 149.43, the Public Records Law, apply. We conclude, to the contrary, that the Sunshine Law does not apply to adjudication proceedings at the BTA and that the attorney-examiner report is exempt from the Public Records Law under the "judicial mental process" privilege.

"Ohio's 'Sunshine Law,' R.C. 121.22, requires that public officials, when meeting to consider official business, conduct those meetings in public." State ex rel. Cincinnati Post v. Cincinnati (1996), 76 Ohio St.3d 540, 542, 668 N.E.2d 903, 905. R.C. 121.22(C) provides:

"All meetings of any public body are declared to be public meetings open to the public at all times. * * *

"The minutes of a regular or special meeting of any public body shall be promptly prepared, filed, and maintained and shall be open to public inspection. * * * "

In Westerville v. Hahn (1988), 52 Ohio App.3d 8, 556 N.E.2d 200, the Franklin County Board of Commissioners, in an annexation proceeding, had consulted privately with its staff attorney on the validity of petition signatures. The Court of Appeals for Franklin County rejected the contention that this meeting violated the Sunshine Law and refused to invalidate the board's order approving the annexation. Judge McCormac, writing for the unanimous court, noted that this court, in Matheny v. Frontier Local Bd. of Edn. (1980), 62 Ohio St.2d 362, 16 O.O.3d 411, 405 N.E.2d 1041, had held that the term "meeting" in the Sunshine Law had a different meaning than "hearing" in a former version of the law. According to the Westerville court, "[t]he term 'hearing' was used to refer to situations where a formal hearing was statutorily mandated. Therefore, even though a public body must open all its meetings to the public, there is a category of gatherings, called 'hearings,' which do not have to be public." Westerville at 12, 556 N.E.2d at 205.

The Westerville court concluded that the annexation proceeding in that case was a quasi-judicial proceeding because the board needed to provide notice, hearing, and an opportunity to introduce evidence. The court further concluded that the hearing fell "into the category of gatherings which are not meetings and, hence, [do] not fall under the Sunshine Law. The fact that the board was deciding a dispute between two outside groups adds force to the conclusion that the proceeding was quasi-judicial." Id.

In Zangerle v. Evatt (1942), 139 Ohio St. 563, 571, 23 O.O. 52, 55, 41 N.E.2d 369, 373, we held that the BTA is a quasi-judicial body when discharging its adjudication duties. In this task, the BTA conducts hearings in the nature of legal proceedings, providing notice and an opportunity to introduce testimony through witnesses. A litigant may appeal to the courts only those administrative agency decisions resulting from quasi-judicial proceedings. Fortner v. Thomas (1970), 22 Ohio St.2d 13, 51 O.O.2d 35, 257 N.E.2d 371; M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150, 61 O.O.2d 394, 290 N.E.2d 562. In Rossford Exempted Village School Dist. v. State Bd. of Edn. (1989), 45 Ohio St.3d 356, 359, 544 N.E.2d 651, 654, we stated:

"Permitting appeal from a quasi-judicial proceeding is based on the premise that an adjudication has been made by the agency which determines the rights or duties of parties with conflicting interests--in other words, there is a justiciable dispute requiring evaluation and resolution. Implicit in this concept is the exercise of discretion. In Englewood v. Daily (1965), 158 Colo. 356, 361, 407 P.2d 325, 327, the court stated that in deciding whether an act by an administrative agency is quasi-judicial, the ' * * * most common test is to determine whether the function under consideration involves the exercise of discretion and requires notice and hearing,' all elements being required to constitute a quasi-judicial act. See, also, Gross v. Kenton Structural & Ornamental Ironworks, Inc. (S.D.Ohio 1984), 581 F.Supp. 390."

The BTA's adjudication is a quasi-judicial proceeding that settles a "justiciable dispute requiring evaluation and resolution." Rossford; Zangerle. Although the BTA opens its hearings to the public under Ohio Adm. Code 5717-1-15(D), it, like all judicial bodies, requires privacy to deliberate, i.e., to evaluate and resolve, the disputes. This privacy frees the BTA from the open pressure of the litigants as it contemplates the case. Privacy provides an opportunity for candid discussion between board members and staff on the legal issues and the facts so the BTA can reach a sound decision. See Nasrallah v. Missouri State Bd. of Chiropractic Examiners (Nov. 26, 1996), Mo.App. No. WD 51663, unreported, 1996 WL 678640. For these reasons, the Sunshine Law does not apply to adjudications of disputes in quasi-judicial proceedings, such as at the BTA. See, also, Angerman v. State Med. Bd. (1990), 70 Ohio App.3d 346, 591 N.E.2d 3.

Moreover, the hearing examiner's report to the BTA is not a public record. R.C. 149.43(A)(1)(o) defines "public record" as "any record that is kept by any public office * * * except * * * [r]ecords the release of which is prohibited by state or federal law." In State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 249, 643 N.E.2d 126, 130, we ruled that common-law privileges, such as the attorney-client privilege, are state laws that prohibit release of public records. See, also, Woodman v. Lakewood (1988), 44 Ohio App.3d 118, 541 N.E.2d 1084.

In State ex rel. Steffen v. Kraft (1993), 67 Ohio St.3d 439, 440, 619 N.E.2d 688, 689, we denied permission to a litigant to review a judge's personal trial notes because, inter alia, this "would intrude upon a judge's subjective thoughts and deliberations, threatening the orderly administration of justice. If notes were available, counsel could presumably ask the court to explain the notes, such as why the court recorded some events and not others, or why the trial court characterized certain events in a certain manner." This statement describes the "judicial mental process" privilege.

United States v. Morgan (1941), 313 U.S. 409, 421-422, 61 S.Ct. 999, 1004-1005, 85 L.Ed. 1429, 1435-1436, provides an early discussion of this privilege as it pertains to administrative agencies:

" * * * But, finally, a matter not touching the validity of the order requires consideration. Over the Government's objections, the district court authorized the market agencies to take the deposition of the Secretary [of Agriculture]. The Secretary thereupon appeared in person at the trial. He was questioned at length regarding the process by which he reached the conclusions of his order, including the manner and extent of his study of the record and his consultation with subordinates. His testimony shows that he dealt with the enormous record in a manner not unlike the practice of judges in similar situations, and that he held various conferences with the examiner who heard the evidence. Much was made of his disregard of a memorandum from one of his officials who, on reading the proposed order, urged considerations favorable to the market agencies. But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary 'has a quality resembling that of a judicial proceeding.' Morgan v. United States, 298 U.S. 468, 480 [56 S.Ct. 906, 911, 80 L.Ed. 1288, 1294]. Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that 'it was not the function of the court to probe the mental processes of the Secretary.' 304 U.S. 1, 18 [58 S.Ct. 773, 776, 82 L.Ed. 1129, 1132]. Just as a judge cannot be subjected to such a scrutiny, compare Fayerweather v. Ritch 195 U.S. 276, 306-07 [25 S.Ct. 58, 67, 49 L.Ed. 193, 214], so the integrity of the administrative process must be equally respected. See Chicago, B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 593 [27 S.Ct. 326, 327, 51 L.Ed. 636, 638]. It will bear repeating that although the administrative process has had a different development and pursues somewhat different ways from those of courts, they are to be deemed collaborative instruments of justice and the appropriate independence of each should be respected by the other. United States v. Morgan, 307 U.S. 183, 191 [59 S.Ct. 795, 799, 83 L.Ed. 1211, 1217]."

As one of the steps to concluding in State ex rel. Ormet Corp. v. Indus. Comm. (1990), 54 Ohio St.3d 102, 107, 561 N.E.2d 920, 925, "[...