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Ruling Requires Both State Agency and Appellant to Strictly Comply With Statutory Procedures

2006-0107. Hughes v. Ohio Dept. of Commerce, 2007-Ohio-2877.
Franklin App. No. 04AP-1386, 2005-Ohio-6368. Judgment reversed and cause dismissed.
Moyer, C.J., Lundberg Stratton, O'Connor and Lanzinger, JJ., concur.
Pfeifer, J., concurs in part and dissents in part.
O'Donnell and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2007/2007-Ohio-2877.pdf

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(June 27, 2007) In a 4-3 decision, the Supreme Court of Ohio held today that an administrative agency of state government must strictly comply with the requirements of R.C. 119.09 for serving a final order of adjudication upon a party affected by that adjudication before the 15-day appeal period provided by R.C. 119.12 begins to run. The Court held further that a party aggrieved by an administrative agency's order must file its original notice of appeal with the agency and a copy with the court of a common pleas in order to perfect an appeal of the agency order.

The majority opinion was authored by Justice Judith Ann Lanzinger.

The case involves a July 2003 order of the Ohio Department of Commerce, Division of Financial Institutions (DFI), removing Natalie A. Hughes from the board of directors of the United Telephone Credit Union. Hughes filed a notice of appeal in the Franklin County Court of Common Pleas and a time-stamped copy of that notice with DFI. DFI moved for dismissal of Hughes' appeal, asserting that she had not complied with a statutory requirement that the original of her appeal notice must be filed with DFI and a copy of that notice filed with the court.

The trial court initially granted DFI's motion to dismiss, but later granted a motion for reconsideration. The court subsequently vacated its dismissal and remanded the case to DFI for further proceedings, ruling that 1) R.C. 119.12 does not specify that the “original” of an appeal notice must be filed with the agency; and 2) the administrative order removing Hughes from her directorship was itself invalid.

DFI appealed the trial court's ruling. The 10th District Court of Appeals determined that the validity of the removal order was not raised in the assignments of error, vacated the common pleas court's remand order, and directed the common pleas court to dismiss Hughes' appeal on the jurisdictional basis that it had not been timely filed in the proper form—i.e. by filing an original appeal notice with DFI and a copy with the common pleas court within the 15-day appeal period. Hughes sought and was granted Supreme Court review of the case.

In today's decision, the Supreme Court reversed the 10th District and dismissed the case. Writing for the majority, Justice Lanzinger held that DFI's order did not strictly comply with the statutory requirement in R.C. 119.09 that a certified copy of the order be served to the affected party. She also noted, however, that if a new removal order is issued by DFI in the proper form, Hughes may only enforce her right to appeal by complying with the statutory requirements of R.C. 119.12 by filing the original of her appeal notice with DFI and a copy of that notice with the common pleas court within the specified 15-day time limit.

“Just as we require an agency to strictly comply with the requirements of R.C. 119.09, a party adversely affected by an agency decision must likewise strictly comply with R.C. 119.12 in order to perfect an appeal,” wrote Justice Lanzinger. “As the proverb states, what is good for the goose is good for the gander.”

Justice Lanzinger's opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton and Maureen O'Connor.

Justice Paul E. Pfeifer entered an opinion concurring in the majority's judgment and its holding that state agencies must strictly comply with statutory notice requirements. He dissented however, from the majority's holding that the filing of a copy rather than an original of an administrative appeal notice with a state agency is an error sufficient to invalidate an appellant's appeal. In rejecting the majority ruling on the latter issue, Justice Pfeifer wrote that in his view it “elevate(s) procedure over substance.... Further, the word ‘original' does not appear in R.C. 119.12, though it has been inserted into the statute by a majority of this court in contravention of the most basic precept of statutory construction.”

Justice Terrence O'Donnell entered a dissenting opinion, joined by Justice Robert R. Cupp, stating that he would affirm the decision of the 10th District ordering the trial court to dismiss Hughes' appeal for lack of jurisdiction. “Regardless of whether or not the agency has complied with R.C. 119.09 in removing Hughes from her position as a director of the... credit union, courts cannot exercise jurisdiction unless procedural requisites are satisfied,” wrote Justice O'Donnell. “The legislature has prescribed the manner of filing a R.C. 119.12 appeal.... I believe the appellate court correctly adjudicated the issue consistent with its own precedent and rulings from this court. The trial court never obtained jurisdiction over these parties because Hughes filed the notice of appeal with the court instead of the agency and filed a copy with the agency instead of the court.”

Fordham E. Huffman, 614.469.3939, for Natalie E. Hughes.

Stephen P. Carney, 614.466.8980, for the Ohio Dept. Of Commerce, Division of Financial Institutions.