The opinion
[Cite as Simballa v. Ohio Dept. of Natural Resources, Div. of Oil & Gas Resources Mgt., 2024-Ohio-5888.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Kevin J. Simballa, :
Appellant-Appellant, :
No. 23AP-695
v. : (C.P.C. No. 22CV-989)
Ohio Department of Natural : (REGULAR CALENDAR)
Resources, Division of Oil and Gas
Resources Management et al., :
Appellees-Appellees. :
D E C I S I O N
Rendered on December 17, 2024
On brief: Krugliak, Wilkins, Griffiths & Doughtery Co.,
L.P.A. and Matthew W. Onest, for appellant. Argued:
Matthew W. Onest.
On brief: Dave Yost, Attorney General, Gene Park, and
Brian A. Ball, for appellee State of Ohio. Argued: Brian A.
Ball.
On brief: Vorys, Sater, Seymour and Pease LLP, Gregory D.
Russell, Thomas H. Fusonie, and Christopher A. LaRocco, for
appellee Hilcorp Energy Company. Argued: Thomas H.
Fusonie.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Appellant Kevin J. Simballa appeals the October 31, 2023 decision of the
Franklin County Court of Common Pleas, which affirmed the February 10, 2022 order of
the Ohio Oil and Gas Commission (“Commission”). The Commission’s order dismissed
Simballa’s administrative appeal of the November 30, 2021 Chief’s Order 2021-192
(“Chief’s Order”) to Hilcorp Energy Co. (“Hilcorp”) as untimely.
No. 23AP-695 2
{¶ 2} Simballa owns a 38-acre piece of property in Columbiana County, and also
owns the mineral rights to that property. In 2012, Simballa leased those mineral rights to
Hilcorp’s predecessor-in-interest at a rate of $6,000 per acre plus 20 percent of gross
royalties, and Hilcorp assumed that lease in 2013. But Hilcorp permitted that lease to lapse,
and subsequently refused to renew it. A letter from Simballa to Hilcorp indicated that
Simballa remained willing to lease those rights to Hilcorp “under the same terms as
the lease which Hilcorp had acquired, and which Hilcorp opted to let lapse.”
(Emphasis sic.) (June 15, 2021 Letter, Attached as Ex. B to Simballa’s appeal of the Chief’s
Order.) Instead, Hilcorp responded with a “take-it-or-leave-it” counteroffer stating that it
was willing to agree to an 18 month lease of the mineral rights for “the requested 20%
gross royalty and a onetime consideration of $10,000.00.” (Emphasis sic.)
(June 22, 2021 Letter, Attached as Ex. B to Simballa’s appeal of the Chief’s Order.) Hilcorp
gave Simballa 3 days to accept the offer, and if he failed to accept it by that deadline, Hilcorp
stated it “will pursue the unitization process.” Id.
{¶ 3} Simballa did not accept the counteroffer, and on July 1, 2021 Hilcorp applied
to the Commission to conduct unit operations. Following a hearing on September 29, 2021,
Hilcorp obtained the Chief’s Order, under which Simballa’s mineral rights were forcibly
pooled into the “Elkrun Wertz Northeast Unit” (“Unit”) and Hilcorp was authorized to
conduct drilling operations in that Unit. (Nov. 30, 2021 Order by the Chief No. 2021-192.)
{¶ 4} The Chief’s Order is dated November 30, 2021. It was issued exclusively to
Hilcorp and established that Hilcorp and the other property owners from whom it had
obtained mineral rights were primarily responsible for the costs of operations. It also
provided that “unleased mineral owners” would receive “a monthly cash payment equal to
a one-eighth (1/8) share of the gross proceeds from production * * * based on the unit
participation of each unleased mineral owner’s tract,” id. at ¶ 9c, and that once Hilcorp
recovered 200 percent of the cost of drilling an initial well, “each unleased mineral owner
shall receive a monthly cash payment equal to a seven-eighths (7/8) share of net proceeds
from production (for that well) * * * based on the unit participation of each unleased
mineral owner’s tract.” Id. at ¶ 9d. Simballa was the only identified “unleased mineral
owner” named by the order, id. at Exhibit A, but these terms were apparently unsatisfactory
to him.
No. 23AP-695 3
{¶ 5} It is undisputed that Simballa had a right to appeal the Chief’s Order to the
Oil and Gas Commission under R.C. 1509.36, which states “[t]he appeal shall be filed with
the commission within thirty days after the date upon which the person to whom the order
was issued received the order and, for all other persons adversely affected by the order,
within thirty days after the date of the order complained of.” The Chief’s Order was issued
Tuesday, November 30, 2021, but Simballa did not mail his appeal to the Commission until
December 30, 2021, and it was not delivered to the Commission until at least December 31,
2021, when USPS tracking information suggests it was picked up by an authorized person
at the postal facility. Moreover, the Commission was apparently closed that day, and the
Commission did not actually note the filing of Simballa’s appeal until Monday, January 3,
2022.
{¶ 6} As result, both the appellee and intervenor Hilcorp argued that the appeal
had to be dismissed for lack of jurisdiction, contending that Simballa was not “the person
to whom the order was issued,” but was simply a person “adversely affected by the order.”
For this reason, they argued that Simballa’s appeal was required to be filed no later than
Thursday, December 30, 2021, and the fact that the appeal was not mailed until the
following day meant that the Commission lacked jurisdiction to entertain it. On
February 10, 2022 the Commission agreed:
Hilcorp is the one Order Recipient. Appellant is properly
classed [under R.C. 1509.36] as a person adversely affected by
the Order. As a person adversely affected by the Order,
Appellant has thirty days after the issuance of the order
complained to perfect his appeal to the Commission.
***
It is not contested that the Order was issued on November 30,
2021 and Appellant, who is a person adversely affected by this
Order, received notice of the Order. Thirty days after
November 30, 2021 is December 30, 2021, which is the last
date Appellant could have timely filed his appeal as an
adversely affected person. It is also not contested that
Appellant’s Notice of Appeal was filed on January 3, 2022.
Hence, Appellant’s Notice of Appeal was filed four days
beyond the mandatory time limit imposed by Ohio law. That
means Appellant missed the statutory deadline set out in R.C.
1509.36. Consequently the Commission lacks jurisdiction to
hear this appeal. Since the General Assembly, by statute, has
No. 23AP-695 4
limited the time to file an appeal to thirty days, the Commission
has no discretion to extend that time period or to accept an
appeal filed more than thirty days after issuance of the Chief’s
Order.
Appellants attempts to defend his untimely filing with a claim
that a representative of the Division provided verbal
instructions on the appeal process that he claims now support
a claim of equitable estoppel. The Commission is not
persuaded by this claim. Parties before the Commission are
bound by a uniform set of laws and rules of practice and the
Commission does not possess the authority to expand its
jurisdiction based on the comments of an individual
unaffiliated with the Commission. The Commission also notes
that estoppel does not apply against the state.
Jurisdiction is not a matter of choice; but rather is an
expression of the power and authority of a body to act. If the
Commission’s jurisdiction has not been properly invoked, the
Commission simply is without authority to act. The
Commission finds that Appellant’s Notice of Appeal, is
untimely under O.R.C. §1509.36 and will not invoke this
Commission’s jurisdiction.
(Emphasis sic.) (Ex. K, Order of the Commission at 3-5.)
{¶ 7} On February 16, 2022, Simballa filed a timely appeal of the Commission’s
ruling to the Franklin County Court of Common Pleas in accordance with R.C. 1509.37. The
Commission filed a motion to dismiss, and briefing was completed on May 17, 2022.
Seventeen months later, the court of common pleas issued a decision and affirmed the
order of the Oil and Gas Commission dismissing Simballa’s appeal:
Simballa’s appeal centers on the following three issues as
identified in his merit brief: 1.) whether the terms of R.C.
§1509.36 are so vague that the statute is void for vagueness as
set forth in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct.
2294 (1972); 2.) whether the vagueness of R.C. §1509.36
violates the rights to due process and equal protection
guaranteed by the Ohio and U.S. Constitutions; and 3.)
whether the Oil and Gas Commission erred in dismissing
Simballa’s appeal of Chief’s Order 2021-192 because Simballa
filed the appeal within 30 days of the receipt of the notice.
***
[T]he Court finds Simballa did not perfect his appeal in Appeal
No. 1006 within the time period expressly set forth in R.C.
No. 23AP-695 5
§1509.36 and the Commission’s Order dismissing that appeal
for lack of jurisdiction was lawful and reasonable.
***
[T]he Court finds R.C. §1509.36 is not unconstitutionally
vague. Furthermore, the Court finds Simballa’s challenges to
the statute on due process and equal protection grounds are not
well taken. Finally, as found at the outset, the Commission’s
Order dismissing Appeal No. 1006 was reasonable and lawful.
In light of the foregoing, the Court hereby renders judgment in
favor of Appellee ODNR. The Commission’s Order is hereby
AFFIRMED.
(Emphasis sic.) (Oct. 31, 2023 Decision & Entry at 17-18, 20, 29.)
{¶ 8} Simballa has now appealed to this court, and asserts two assignments of error
with the trial court’s judgment:
FIRST ASSIGNMENT OF ERROR: The trial court erred when
it affirmed the Ohio Oil and Gas Commission’s dismissal of
Appellant’s appeal because Appellant timely filed his appeal.
SECOND ASSIGNMENT OF ERROR: The trial court erred
when it affirmed the Ohio Oil and Gas Commission’s dismissal
of Appellant’s appeal because upholding that dismissal violates
Appellant’s constitutional rights to due process and equal
protection.
{¶ 9} We will begin analysis of both assignments of error by clarifying the proper
standard for our review. Appeals to the Franklin County Court of Common Pleas from the
Oil and Gas Commission are generally governed by R.C. 1509.37, which provides in part:
In the hearing of the appeal the court is confined to the record
as certified to it by the commission. * * *
If the court finds that the order of the commission appealed
from was lawful and reasonable, it shall affirm the order. If the
court finds that the order was unreasonable or unlawful, it shall
vacate the order and make the order that it finds the
commission should have made. The judgment of the court is
final unless reversed, vacated, or modified on appeal.
In Johnson v. Kell, 89 Ohio App.3d 623 (10th Dist.1993), this court examined the scope of
the Common Pleas Court’s review of Commission appeals:
No. 23AP-695 6
The proper standard of review on appeal from the Oil and Gas
Board of Review is whether the board’s order was reasonable
and lawful. Although the board reviews the chief’s order under
R.C. 1509.36 to determine whether the chief’s order was
reasonable and lawful in light of the evidence presented to the
board during the hearing, the focus on appeal to the court of
common pleas is on the board's order, not the chief’s.
***
This court has previously defined “unlawful” and
“unreasonable” * * *. “ ‘Unlawful’ means that which is not in
accordance with law.” “ ‘Unreasonable' means that which is not
in accordance with reason, or that which has no factual
foundation.” [W]e find the above definitions equally applicable
here.
(Citations and quotations omitted.) Id. at 625-26. And in Wehr v. Div. of Oil & Gas
Resources Mgt., 10th Dist. No. 17AP-855, 2018-Ohio-5247, we examined the standard of
review courts of appeals employ in cases such as this:
On further appeal from the common pleas court to this court,
our standard of review is more restrictive. We determine only
whether the common pleas court has abused its discretion. The
term "abuse of discretion" implies not merely an error of
judgment, but perversity of will, passion, prejudice, partiality
or moral delinquency. However, on questions of law, the
common pleas court does not exercise discretion, and this
court's review is plenary.
(Citations and quotations omitted.) Id. at ¶ 14. This case turns in large part on the
Commission’s interpretation of R.C. 1509.36, and specifically its interpretation of the
phrases “the person to whom the order was issued” and “other persons adversely affected
by the order.” Under our decision in Wehr such legal questions are subject to plenary
review, and we observe that Supreme Court of Ohio recently confirmed this view
it is the role of the judiciary, not administrative agencies, to
make the ultimate determination about what the law means.
Thus, the judicial branch is never required to defer to an
agency’s interpretation of the law * * *. [A]n agency
interpretation is simply one consideration a court may
sometimes take into account in rendering the court’s own
independent judgment as to what the law is.
No. 23AP-695 7
TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors,
172 Ohio St.3d 225, 2022-Ohio-4677, ¶ 3. Accordingly, we review the statutory
interpretation questions here, like the constitutional challenges and other pure questions
of law, under a de novo standard of review. But under Johnson and Wehr, if the trial court
did not abuse its discretion in concluding that the Board’s determination of the facts was
reasonable and lawful, we will not disturb it.
{¶ 10} In this case, the relevant facts are undisputed—the parties agree on the dates
that Simballa mailed his notice of appeal and when it was filed by the Commission. We
therefore conclude that the questions of whether the Commission’s actions were
“reasonable” and “lawful” are entirely subsumed into this court’s de novo review of two
questions, which correspond to Simballa’s two assignments of error: first, whether the
Commission’s interpretation of R.C. 1509.36 and 1509.37 is correct and therefore
Simballa’s appeal was indeed filed after the deadline; and second, whether the statute’s
creation of two different filing deadlines for appeals to the Commission renders it
unconstitutionally vague, or is otherwise a violation of Simballa’s rights to either due
process or equal protection of the law.
{¶ 11} Simballa contends in his first assignment of error that the language of R.C.
1509.36 is ambiguous susceptible of more than one reasonable interpretation, that the
Commission’s administrative rules created under the statute suggest that he had 30 days
from the date of the receipt of the Chief’s Order to file his appeal because he is an “order
recipient,” and that under this Court’s decision in Wehr the time for filing Simballa’s appeal
did not begin to run until he received certified mail service of the service of the Chief’s Order
as an “order recipient.” We will address each argument in turn, beginning with the relevant
text of R.C. 1509.36:
Any person adversely affected by an order by the chief of the
division of oil and gas resources management may appeal to
the oil and gas commission for an order vacating or modifying
the order.
The person so appealing to the commission shall be known as
appellant and the chief shall be known as appellee. Appellant
and appellee shall be deemed to be parties to the appeal.
The appeal shall be in writing and shall set forth the order
complained of and the grounds upon which the appeal is based.
No. 23AP-695 8
The appeal shall be filed with the commission within thirty
days after the date upon which the person to whom the order
was issued received the order and, for all other persons
adversely affected by the order, within thirty days after the
date of the order complained of. Notice of the filing of the
appeal shall be filed with the chief within three days after the
appeal is filed with the commission.
(Emphasis added.) R.C. 1509.36. There is no dispute that Simballa qualifies as a person
“adversely affected by the order” who may appeal it. The issue comes in the third paragraph
of the statute, which creates two different deadlines for the filing of an appeal—the first for
“the person to whom the order was issued,” who is permitted to file no later than “thirty
days after the date upon which [that person] received the order,” and the second for “all
other persons adversely affected by the order” who must file “within thirty days after the
date of the order complained of.” It is undisputed that Simballa filed beyond “thirty days
after the date of the order complained of”—even assuming that his appeal was filed when it
was picked up from the post office it was already one day after that deadline, and because
the Commission was closed on that date it was not actually deemed filed until at least three
days after that. There is no dispute that Hilcorp is a “person to whom the order was issued,”
as the order is directed exclusively to Hilcorp—the dispute is whether Simballa is also such
a “person to whom the order was issued,” because if he is not, his appeal was untimely
under the statute.
{¶ 12} Simballa contends that the statute does not specifically define the “person to
whom the order was issued,” and that the phrase is ambiguous. He observes under R.C.
1.43(A) “[t]he singular includes the plural, and the plural includes the singular,” and argues
that because the statutory term “person” can be deemed to be plural, that we must examine
the Commission’s administrative rules to determine whether he qualifies as a “person to
whom the order was issued.” He then argues that because the rules use the similar term
“order recipient,” (defined as “any person that is the subject of an order issued by the chief
requiring such person to either perform some act or refrain from some course of activity,
or informing said person of certain rights, duties or obligations,” Ohio Adm.Code 1509-1-
02(K)), a definition which Simballa argues clearly applies to him, that we should conclude
that the statutory phrase must be defined by the regulatory one. Based on this
No. 23AP-695 9
interpretation, Simballa concludes that he was not required to file until 30 days after he
received the order, thereby making his appeal timely.
{¶ 13} This argument is frankly too complex and proves too much. We believe
Simballa’s argument fails at the outset, since before we can even consider relying upon R.C.
1.43(A) or Ohio Adm.Code 1509-1-02(K) to interpret R.C. 1509.36, we must conclude the
statute is ambiguous, as “only where the words of a statute are ambiguous, uncertain in
meaning, or conflicting that a court has the right to interpret a statute.” Gerritsen v. State
Med. Bd. of Ohio, 10th Dist. No. 22AP-466, 2023-Ohio-943, ¶ 15, quoting Silver Lining
Grp. EIC Morrow Cty. v. Ohio Dept. of Edn. Autism Scholarship Program, 10th Dist. No.
16AP-398, 2017-Ohio-7834, ¶ 34 (internal citation and quotation omitted.). And we cannot
find such a required ambiguity, because in context the phrase “person to whom the order
was issued” has a plain meaning that is not susceptible to more than one reasonable
interpretation. Compare with Columbus v. Mitchell, 10th Dist. No. 16AP-322, 2016-Ohio-
7873, ¶ 6, citing State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio St.3d 508, 513 (1996).
Reliance upon the fact that the statutory term “person” includes both singular and plural to
create an ambiguity where it would not otherwise exist places the cart prior to the horse—
while it is acceptable to find that the word “person” includes both, it is not necessary for
the word to always do so, since “[w]ords and phrases shall be read in context and construed
according to the rules of grammar and common usage.” R.C. 1.42.
{¶ 14} Such a contextual reading is demonstrated in Wehr, 2018-Ohio-5247, upon
which Simballa mistakenly relies. In Wehr, this court noted an ambiguity in the former
version of R.C. 1509.36, because that version of the statute provided that an “appellant”
could file a notice of appeal “within thirty days after the date upon which the appellant
received notice by certified mail.” Former R.C. 1509.36 (effective September 10, 2012). The
Wehr court determined the use of the undefined term “appellant” made the statute’s later
use of “all other persons adversely affected by the order” problematic, since it was difficult
to determine who fell into which of the two categories. See id. at ¶ 19. But the General
Assembly has since amended R.C. 1509.36, presumably at least partially in response to
Wehr. Under the statute’s former version, we would likely have concluded that Simballa
was an “appellant” under the statute, and that therefore his administrative appeal filing
clock did not begin to run until he received certified mail notice of the Chief’s Order. See
No. 23AP-695 10
Id. at ¶ 23. But the current version of the statute replaces the word “appellant” with the
phrase “person to whom the order is issued,” thereby resolving the ambiguity and rendering
Simballa’s argument a nullity.
{¶ 15} Here, where the statutory language plainly creates two alternative classes, it
defies those plain terms to find ambiguity and collapse the distinction between those
classes, and to turn Simballa from a member of one class into a member of the other.
Therefore, we find that both the Commission and the trial court correctly concluded that
Simballa was not a “person to whom the order is issued” under R.C. 1509.36, and that
therefore his administrative appeal was untimely. We accordingly overrule Simballa’s first
assignment of error.
{¶ 16} In his second assignment of error, Simballa argues that the statute is
unconstitutionally vague in violation of due process, and that it unconstitutionally violates
his right to equal protection of the laws. In determining the constitutionality of an
ordinance, the court is to presume the constitutionality of lawfully enacted legislation. And
the legislation being challenged will not be invalidated unless it is established that it is
unconstitutional beyond a reasonable doubt. See, e.g., Arnold v. City of Cleveland, 67 Ohio
St.3d 35, 38-39 (1993) (citations and quotations omitted).
{¶ 17} In In re Columbus S. Power Co., 134 Ohio St.3d 392, 2012-Ohio-5690, the
Supreme Court of Ohio observed that vagueness need not always render a statute
unconstitutional:
Tolerance for vagueness depends in part on the nature of the
enactment. Some statutes trigger relatively strict vagueness
review, such as eminent-domain statutes, statutes imposing
criminal sanctions, and statutes implicating constitutionally
protected rights.
In contrast, laws directed to economic matters are subject to a
less strict vagueness test than laws interfering with the exercise
of constitutionally protected rights. That is, a greater degree of
ambiguity will be tolerated in statutes which merely impose
civil, as opposed to criminal penalties and when the statute
regulates the conduct of businesses.
[The challenged statute] is a civil statute directed to economic
matters in a highly regulated industry, and it does not implicate
any constitutionally protected conduct. Therefore, we apply a
less strict vagueness test.
No. 23AP-695 11
(Citations and quotations omitted.) Id. at ¶ 13-15. Given that the challenged statute is “a
civil statute directed to economic matters in a highly regulated industry,” it is subject to less
stringent vagueness review. Notwithstanding, as the United States Supreme Court has
observed:
It is a basic principle of due process that an enactment is void
for vagueness if its prohibitions are not clearly defined. Vague
laws offend several important values. First, because we assume
that man is free to steer between lawful and unlawful conduct,
we insist that laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he
may act accordingly. Vague laws may trap the innocent by not
providing fair warning. Second, if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit
standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and
discriminatory application. Third, but related, where a vague
statute abuts upon sensitive areas of basic First Amendment
freedoms, it operates to inhibit the exercise of those freedoms.
Uncertain meanings inevitably lead citizens to steer far wider
of the unlawful zone than if the boundaries of the forbidden
areas were clearly marked.
(Citations and quotations omitted.) Grayned v. Rockford, 408 U.S. 104, 108-09 (1972).
“The void-for-vagueness doctrine is a component of the right to due process and is rooted
in concerns that laws provide fair notice and prevent arbitrary enforcement.” In re
Columbus S. Power Co at ¶ 20, quoting Skilling v. United States, 561 U.S. 358 (2010).
{¶ 18} A statute can be impermissibly vague for either of two independent reasons:
(1) It fails to provide people of ordinary intelligence a reasonable opportunity to understand
what conduct it prohibits, or (2) it authorizes or even encourages arbitrary and
discriminatory enforcement. 161 Dublin, Inc. v. Ohio State Liquor Control Comm., 10th
Dist. No. 01AP-134, 2001 Ohio App. LEXIS *31 (Dec. 27, 2001), citing Hill v. Colorado, 530
U.S. 703, 732 (2000). To prevail, the challenging party must show that the statute is vague
“not in the sense that it requires a person to conform his conduct to an imprecise but
comprehensible normative standard, but rather in the sense that no standard of conduct is
specified at all.” In re Columbus S. Power Co at ¶ 20, quoting Coates v. Cincinnati, 402
U.S. 611, 614 (1971). See also State v. Anderson, 57 Ohio St.3d 168, 171 (1991).
No. 23AP-695 12
{¶ 19} None of these concerns are present in this case. As we have observed in
addressing Simballa’s first assignment of error, the filing requirement of R.C. 1509.36
applies to a definite and identifiable group of people (“all other persons adversely affected
by the order”) and states a definite and identifiable rule (an appeal to the Oil and Gas Board
must be filed “within thirty days after the date of the order complained of”). Simballa has
basically recast his statutory ambiguity argument as a constitutional void-for-vagueness
one, but both lack merit for the same reasons.
{¶ 20} Simballa also contends that the statute violates his right to equal protection
of the laws. Because the statute by its own terms does not implicate a suspect classification
or affect a fundamental right, it is subject to rational basis review. See, e.g., Roseman v.
Firemen & Policemen’s Death Benefit Fund, 66 Ohio St.3d 443, 447 (1993). Under that
level of review, “[t]he classification will not violate the Equal Protection Clause if it bears a
rational relationship to a legitimate governmental interest.” Id., citing e.g., Menefee v.
Queen City Metro, 49 Ohio St.3d 27, 29 (1990). “We must uphold the statute unless the
classification is irrelevant to achievement of the state’s purpose.” Roseman at 447, citing
e.g., McGowan v. Maryland, 366 U.S. 420 (1961). But if a classification is not justified by
a legitimate state interest, this court must strike down the discriminatory law creating the
classification which treats similarly situated individuals differently. Id. at 447 (citing
cases). “A party who challenges a statute on equal-protection grounds must demonstrate
‘either that there was no rational basis for the creation of the class itself or that those within
the class are not being treated equally in the furtherance of a legitimate governmental
interest.’ ” Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307,
2016-Ohio-8118, ¶ 48, quoting Morris v. Savoy, 61 Ohio St.3d 684 (1991).
{¶ 21} Simballa argues that there is no rational basis for the distinction between the
two classes made by the statute—“the person to whom the order was issued” as opposed to
“all other persons adversely affected by the order.” We disagree. As the Commission argues,
it is often difficult to tell exactly who might be adversely affected by a decision, and the
Commission argues that it “should not have to guess whether someone is ‘adversely
affected.’ It is up to the person who is adversely affected to assert their rights.” (Brief of
Appellee State of Ohio at 25.) We agree, and for this reason conclude that the distinction
between the two classes is a rational one.
No. 23AP-695 13
{¶ 22} To be fair, we are much less certain that there is a plausible reason to have
different appeal deadlines for those two statutory classes, as the differing deadlines lead to
the precise kind of confusion that can be seen in this case. We observe that it would be far
more sensible for the distinction to have a different effect, for instance, establishing an
appellate pleading requirement that “other persons adversely affected” must provide a
summary of such adverse effects. But judges are not legislators, and judges are not
members of the Ohio Oil and Gas Commission. It is not within the judicial function to
second-guess the effects of the distinction made in the statute. In this case, all this court
can do is examine whether the classification survives rational basis review, and even if it is
unwise, it is undoubtedly rational. Accordingly, his second assignment of error is
overruled.
{¶ 23} For all these reasons, Simballa has not established that R.C. 1509.36 is
unconstitutionally vague or violates his right to equal protection of the laws. Having
overruled Simballa’s two assignments of error, we affirm the judgment of the Franklin
County Court of Common Pleas.
Judgment affirmed.
MENTEL, P.J., and JAMISON, J., concur.