Union Camp Corp., Harchem Division v. Whitman

• Decision Date: 03 May 1978
• Docket Number: No. 77-77,77-77
• Citation: 8 O.O.3d 155,375 N.E.2d 417,54 Ohio St.2d 159
• Parties: , 8 O.O.3d 155 UNION CAMP CORP., HARCHEM DIVISION, Appellant, v. WHITMAN, Dir. of Environmental Protection, Appellee.
• Court: Ohio Supreme Court

Page 159

54 Ohio St.2d 159

375 N.E.2d 417, 8 O.O.3d 155

UNION CAMP CORP., HARCHEM DIVISION, Appellant, v. WHITMAN, Dir. of Environmental Protection, Appellee.

No. 77-77.

Supreme Court of Ohio.

May 3, 1978.

Syllabus by the Court

The denial of a motion for a hearing de novo by the Environmental Board of Review issued upon appeal of the rule-making actions of the Director of Environmental Protection is an order affecting a substantial right in a special proceeding and thus is a final order appealable, pursuant to R.C. 3745.06, to the Court of Appeals for Franklin County.

On January 21, 1974, the Director of Environmental Protection (director) adopted, without an adjudicatory hearing, certain regulations involving air quality standards and emission controls.

Pursuant to R.C. 3745.04, Union Camp Corporation, Harchem Division (Union Camp), appealed the actions of the director to the Environmental Board of Review (board). Union Camp's motion for a de novo hearing in accordance with R.C. 3745.05 was denied by the board. The board then ordered the parties to appear for a hearing based upon the materials certified to the board by the director.

An appeal of this denial of a de novo hearing to the Court of Appeals for Franklin County was taken by Union Camp. The director asserted that it was an interlocutory appeal and thus not a final reviewable order. Stating that Fortner v. Thomas (1970), 22 Ohio St.2d 13, 257 N.E.2d 371, precluded the Court of Appeals' consideration of any appeal from the board concerning the reasonableness and lawfulness of regulations promulgated by the director, the Court of Appeals dismissed the appeal.

In Union Camp Corp. v. Whitman (1975), 42 Ohio St.2d 441, 329 N.E.2d 690, the court found that Fortner, supra, did not preclude consideration of this appeal by the Court of Appeals and, therefore, reversed the judgment of the Court of Appeals and remanded the cause.

Upon remand, the Court of Appeals, without the benefit of briefs or a hearing, dismissed the appeal. The reasoning of the Court of Appeals was twofold:

" * * * (1) The denial of a de novo hearing cannot be a final order, being only interlocutory in nature. * * * (2) The ruling of the Board of Review * * * was made during the course of a quasi-legislative proceeding, so that such ruling, even if a 'final order' were entered, would not fall within the appellate jurisdiction of this court which is limited to review of final orders * * * entered in quasi-judicial proceedings * * *."

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

Reed, Smith, Shaw & McClay and Robert W. Thomson, Pittsburgh, Pa., for appellant.

William J. Brown, Atty. Gen., and David E. Northrop, Columbus, for appellee.

LOCHER, Justice.

An appeal from an order of the board to the Court of Appeals for Franklin County is authorized by R.C. 3745.06, which provides, in part:

"Any party adversely affected by an order of the environmental board of review may appeal to the court of appeals of Franklin county * * *."

The General Assembly's assignment of jurisdiction in R.C. 3745.06, however, may not exceed the parameters set forth within Section 3(B)(2) of Article IV of the Ohio Constitution. Section 3(B)(2), as herein relevant, reads:

"Courts of appeals shall have * * * such appellate jurisdiction as may be provided by law to review and affirm, modify, or reverse final orders or actions of administrative officers or agencies." (Emphasis added.)

It is apparent, therefore, that the orders of the board made appealable by R.C. 3745.06 must be "final orders or actions." Thus, whether Union Camp may appeal from the board's denial of its motion for a hearing de novo, is dependent upon whether the denial was a final order.

As herein relevant, R.C. 2505.02 defines a "final order" as ^* "(a)n order affecting a substantial right * * * made in a special proceeding * * *." Thus crucial to the propriety of this appeal is the determination of whether a "substantial right" of Union Camp has been affected by the denial of its motion for a hearing de novo. Ohio case law has been consistent in its definition of a "substantial right":

" * * * A substantial right involves the idea of a legal right, one which is protected by law. * * * " Armstrong v. Herancourt Brewing Co. (1895), 53 Ohio St. 467, 480, 42 N.E. 425, 427. See, also, William Watson & Co. v. Sullivan (1855), 5 Ohio St. 42; North v. Smith (1906), 73 Ohio St. 247, 76 N.E. 619; In re Estate of Wyckoff (1957), 166 Ohio St. 354, 142 N.E.2d 660; and State v. Collins (1970), 24 Ohio St.2d 107, 265 N.E.2d 261.

In resolving the question of whether an order suppressing evidence was an "order affecting a substantial right," Justice Herbert, 24 Ohio St.2d at pages 109 and 110, 265 N.E.2d at page 263, in State v. Collins, supra, reasoned:

" * * * The record herein leaves no doubt that this was such an order. The appellant represented in oral argument that the deprivation of the use of the evidence suppressed below rendered it virtually impossible for the state to obtain a conviction, and that without that evidence the prosecution would be terminated. Society has a most substantial right to the diligent prosecution of those accused of crime, and where prosecution is irretrievably foreclosed through the suppression of evidence, that right is clearly and adversely affected."

As in State v. Collins, supra, there is no doubt that the board's denial of a hearing de novo in the present cause was an "order affecting a substantial right." The existence of Union Camp's legal right to a hearing de novo before the board, pursuant to R.C. 3745.05, was clearly established by the court's prior decision in this extended controversy. Union Corp. v. Whitman, supra, 42 Ohio St.2d 441, 329 N.E.2d 690. The deprivation of a hearing de novo in contravention of R.C. 3745.05 foreclosed Union Camp's only opportunity to refute the director's case in support of his regulations by presenting witnesses and other evidence and by cross-examining the director's witnesses. The right to a hearing generally is a basic right and, where it is withheld, that right is clearly and substantially affected. Nor is that right any less affected as urged by the director because of the existence of an adequate appellate remedy at...