noting that the "presumption of constitutionality can be overcome only by a `clear showing of arbitrariness and irrationality'"
How later courts described this case
- noting that the "presumption of constitutionality can be overcome only by a `clear showing of arbitrariness and irrationality'"
Written by the judges who cited it.
The opinion
Deshler, Judge,
concurring in part and dissenting in part.
Being unable to agree with the majority insofar as affirming the trial court’s dismissal of the ease, I respectfully dissent.
While it is clear that appellant was under a statutory duty to file a petition within thirty days of the filing of the notice of appeal, the commands of the statute, R.C. 4123.512, are not without exception. Appellant did not, as stated by the majority, demonstrate excusable, neglect insofar as the failure to timely file the petition. However, appellant did file a motion for leave to file a complaint and this motion was pending at the time of dismissal of appellant’s case.
Appellant, as was his right, challenged the constitutionality of the procedural aspects of R.C. 4123.512, the statute governing the proceedings in. the trial court. I agree with the majority that appellant’s motion on the issue of constitutionality was not meritorious and I would affirm the trial court in this respect. However, the failure of the trial court to address the appellant’s motion for leave to file a complaint and rendering it “moot” for failure to show excusable neglect, when a constitutional challenge was before the court, was in my view error. Under such circumstances, the resultant dismissal, barring appellant from litigating the merits of the case, resulted in prejudicial error. In view of appellant’s pending motion with respect to the constitutionality issue and the pending motion for leave to file, the dilatory aspects of appellant’s untimely response to the mandates of the statute were not in my view drastic enough to warrant dismissal. The trial
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court’s concurrent ruling on a constitutional challenge, overlooking a motion for leave to plead further and sustaining a motion to dismiss the case, does not in my view comport with the spirit of the Civil Rules and the long-held view that matters before the court should be considered on their merits as opposed to dismissal arising from technical deficiencies. I would therefore reverse the trial court’s dismissal of the case, but affirm the trial court’s decision that R.C. 4123.512 is constitutional.