Summary
In Rankin-Thoman v. Caldwell (1975), 42 Ohio St.2d 436, paragraph two of the syllabus, this court held R.C. 119.11 unconstitutional, since it contemplated judicial review only of quasi-legislative proceedings, thereby violating Section 4(B), Article IV of the Ohio Constitution.
Summary of this case from Bd. of Edn. of Marion v. Bd. of Edn. of ElginOpinion
Nos. 74-441 and 74-471
Decided June 11, 1975.
Administrative procedure — Adoption of regulations — Appeal — Quasi-legislative determinations not appealable — R.C. 119.11 invalid — Declaratory judgment available remedy.
1. The review of proceedings of administrative officers and agencies, authorized by Section 4(B), Article IV of the Ohio Constitution, contemplates quasi-judicial proceedings only. (Paragraph one of the syllabus in Fortner v. Thomas, 22 Ohio St.2d 13, approved and followed.)
2. R.C. 119.11, which provides for an appeal to the Court of Common Pleas from the quasi-legislative proceedings of administrative officers and agencies, is unconstitutional, in violation of Section 4(B), Article IV of the Ohio Constitution.
APPEALS from the Court of Appeals for Franklin County.
The issues raised by these appeals are identical.
The facts in case No. 74-441 are:
On February 27, 1973, the State Fire Marshall of Ohio adopted the rules and regulations which comprise the Ohio Fire Code. Section 14.6 of that Code requires the installation of a household fire warning system in all dwellings of more than one unit, from and after the effective date of the regulation.
On March 9, 1973, appellant, Rankin-Thoman, Inc., an Ohio corporation, filed two actions in the Court of Common Pleas of Franklin County. The first, a declaratory judgment action, is not before this court. The second, an appeal pursuant to R.C. 119.11 from the adoption of the regulations, was dismissed by the Court of Common Pleas for lack of jurisdiction. The Court of Appeals affirmed the judgment dismissing the appeal.
The facts in case No. 74-471 are:
On May 8, 1973, the Chief of the Division of Forestry and Reclamation adopted rules and regulations pertaining to stripmining and the reclamation of mined land.
On May 22, 1973, appellants, American Electric Power Company and others, filed an appeal pursuant to R.C. 119.11 from the adoption of the regulations, alleging that they were unreasonable and unlawful. The Court of Common Pleas of Franklin County dismissed the appeal for lack of jurisdiction. The Court of Appeals affirmed the judgment dismissing the appeal.
The causes are now before this court pursuant to the allowance of motions to certify the records.
Messrs. Topper, Alloway, Goodman, DeLeone Duffey, Mr. John J. Duffey and Mr. Clifford M. St. Clair, for appellant in case No. 74-441.
Messrs. Lane, Alton Horst, Mr. John W. Edwards, Messrs. Freifield, Wehr, Moreland England, Mr. William W. Wehr, Messrs. Graham Graham, Mr. James F. Graham, Mr. Neal S. Tostenson, Messrs. Weinman, Downer, Quinn, Adulewicz Kerr and Mr. William M. Downer, for appellants in case No. 74-471.
Mr. William J. Brown, attorney general, Mr. Gary E. Brown and Mr. Jay McKirahan, for appellees.
In Zangerle v. Evatt (1942), 139 Ohio St. 563, Fortner v. Thomas (1970), 22 Ohio St.2d 13, M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150, Burger Brewing Co. v. Liquor Control Comm. (1973), 34 Ohio St.2d 93, and DeLong v. Board of Edn. (1973), 36 Ohio St.2d 62, this court held that the review of proceedings of administrative officers and agencies, authorized by Section 4(B), Article IV of the Ohio Constitution, contemplates quasi-judicial proceedings only. In Fortner, supra, and Burger Brewing Co., supra, we declared that R.C. 119.11 could not be employed to obtain judicial review of quasi-legislative proceedings of administrative officers and agencies. Those unequivocal judicial pronouncements foreclose the attempt by each appellant herein to appeal a quasi-legislative determination pursuant to R.C. 119.11.
However, these appeals present a broader question for determination, namely whether any situation exists, other than the review of quasi-legislative proceedings, to which R.C. 119.11 would be relevant. We conclude that the sole purpose and effect of R.C. 119.11 is to provide judicial review by the Court of Common Pleas of quasi-legislative proceedings, and therefore hold that section to be unconstitutional, in violation of Section 4(B), Article IV of the Ohio Constitution.
The distinction between quasi-legislative and quasi-judicial proceedings has sometimes been predicated upon procedural differences. Quasi-judicial proceedings require notice, hearing and the opportunity for introduction of evidence. Kelley, supra; DeLong, supra. Quasi-legislative proceedings do not. More frequently, however, courts have examined the nature of the proceedings themselves, to ascertain whether they involve the making or revising of rules, rather than the application of rules in an adjudicatory manner. Thus, in Zangerle, supra, this court determined the adoption of a rule by the Tax Commissioner to be quasi-legislative in character, and stated that "[c]ourts will not aid in making or revising rules of administrative officers, boards or commissions, being confined to deciding whether such rules are reasonable and lawful as applied to the facts of a particular justiciable case." In Fortner, supra, and Burger Brewing Co., supra, we declined to hear appeals filed pursuant to R.C. 119.11, because in each case the appellant sought judicial review in the Court of Common Pleas of a regulation, not a determination of its application in an administrative adjudication.
Paragraph one of R.C. 119.11 provides that:
"Any person adversely affected by an order of an agency in adopting, amending, or rescinding a rule or in adopting, re-adopting, or continuing a rule, amendment, or rescission previously adopted as an emergency rule as provided in Section 119.03 of the Revised Code, may appeal to the Court of Common Pleas of Franklin County on the ground that said agency failed to comply with the law in adopting, amending, rescinding, publishing, or distributing said rule, or that the rule as adopted or amended by the agency is unreasonable or unlawful, or that the rescission of the rule was unreasonable or unlawful. * * *"
In explicit language, R.C. 119.11 provides for an appeal to the Court of Common Pleas from the making, revising, or rescinding of administrative rules, not from the application thereof in an adjudicatory proceeding. The language of the statute is clear and precise, and speaks to the " adopting, amending, or rescinding a rule," and to the failure "to comply with the law in adopting, amending, rescinding, publishing, or distributing said rule." (Emphasis added.) On its face, the section provides for appeals from quasi-legislative proceedings, not from quasi-judicial proceedings.
This construction is buttressed by the existence of other, specific provisions which provide for appeals from quasi-judicial determinations. R.C. 119.12 specifically provides for an appeal from the quasi-judicial determinations of state administrative agencies. R.C. 2506.01 specifically provides for an appeal from the quasi-judicial determinations of state political subdivisions. The language employed in both those sections is significantly different from the language of R.C. 119.11.
R.C. 2506.01, for example, provides for an appeal from "every final order, adjudication or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state * * *." It excludes appeals from any order "which does not constitute a determination of the rights, duties, privileges, benefits, or legal relationships of a specific person * * *."
R.C. 119.12 provides for an appeal by "any party adversely affected by an order of an agency issued pursuant to an adjudication denying an applicant admission to an examination, or denying the issuance or renewal of a license, registration of a license, or revoking or suspending a license * * *." It provides further for an appeal by "any party adversely affected by any order of an agency issued pursuant to any other adjudication * * *."
To affirm the validity of R.C. 119.11 because it might be construed to provide for appeals from quasi-judicial proceedings implies that R.C. 119.12 is redundant and repetitive in doing so.
R.C. 119.11 also provides:
"* * * but no person affected thereby shall be precluded from attacking at any time the reasonableness or legality of any rule in its application to a particular set of facts or circumstances."
As Justice Duncan stated in Fortner v. Thomas, supra ( 22 Ohio St.2d 13), at page 21:
"Using this language, the General Assembly attempts to give an opportunity for a second review of a rule as regards a particular set of facts. This provision takes on meaning only if the rule were intended to be reviewed without a particular set of facts in the first instance. By this attempt to grant a review of quasi-legislative matters * * * the constitutional limitation has been offended."
The invalidity of R.C. 119.11, however, does not render prospective relief from the enforcement of an administrative rule impossible. In paragraph one of the syllabus in Burger Brewing Co. v. Liquor Control Comm., supra ( 34 Ohio St.2d 93), this court held:
"An action for a declaratory judgment to determine the validity of an administrative agency regulation may be entertained by a court, in the exercise of its sound discretion, where the action is within the spirit of the Declaratory Judgment Act, a justiciable controversy exists between adverse parties, and speedy relief is necessary to the preservation of rights which may otherwise be impaired or lost."
Although initiation of a declaratory judgment action will not automatically stay the effective date of an agency rule, as was the case with an appeal pursuant to R.C. 119.11, the power to grant injunctive relief exists in the trial court, and should be exercised when essential to prevent irreparable harm to a contesting party.
The judgments of the Court of Appeals, affirming the judgments of the Court of Common Pleas, are affirmed.
Judgments affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and W. BROWN, JJ., concur.