The opinion
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Hofstetter, J.,
dissenting. I vigorously and respectfully dissent from the majority opinion on the basis of the applicable statutes and controlling case law.
I agree with the majority that the right of appeal is not' an inherent or inalienable right, but must be conferred by constitution or statute.
R.C. 124.34 authorizes appeal by the appointing authority or the officers or employees to the common pleas court in accordance with the
procedure
provided by R.C. 119.12. Neither R.C. 124.34 nor Chapter 124 defines “party.”
Acknowledging the above, that R.C. 119.12 provides the procedure for R.C. 124.34 appeals, it follows that before the correct procedure under R.C. 119.12 can be ascertained, we must look to the definitional section of R.C. Chapter 119,
i.e.,
R.C. 119.01, to understand the limitations of R.C. 119.12.
The procedural aspects of R.C. 119.12, in pertinent part, as they concern the issues now before this court are set forth only in the twelfth paragraph of R.C. 119.12 which reads as follows:
“The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. The judgment of the court shall be final and conclusive unless reversed, vacated, or modified on appeal.
Such appeals may be taken either by the party or the agency
and shall proceed as in the case of appeals in civil actions as provided in sections 2505.01 to 2505.45 of the Revised Code. Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction, or interpretation of statutes and rules of the agency, and in such appeal the court may also review and determine the correctness of the judgment of the court of common pleas that the order of the agency is not supported by any reliable, probative, and substantial evidence in the entire record. Such appeals may be taken regardless of the fact that a proceeding was pending prior to the amendment of this section expressly authorizing such appeals, provided such appeals are perfected by the filing of notice of appeal within the time prescribed by section 2505.07 of the Revised Code.” (Emphasis added.)
A close review of the above reveals that the judgment of the common pleas court shall be final and conclusive unless reversed, vacated or modified on appeal. Such appeals, however, are limited either to the
party
or the
agency.
To interpret the procedural intent of R.C. 119.12 as applied to actions authorized by R.C. 124.34, we must refer to the definitions in R.C. 119.01. They are as follows:
“(F) ‘Person’ means a person, firm, corporation, association, or partnership.
“(G) ‘Party’ means the person whose interests are the subject of an adjudication by an agency.
“(H) ‘Appeal’ means the procedure by which a person aggrieved by a finding, decision, order, or adjudication of any agency, invokes the jurisdiction of a court.”
It is apparent from the above definitions that the reference to “party” in R.C. 119.12, based on (F), (G) and (H), of necessity is confined to the employee whose interests are the subject of an adjudication by an agency.
The meaning of the term “agency,” as used in the twelfth paragraph of R.C. 119.12, is less clear. The term “agency” as used in portions of R.C. 119.12 seems to refer to that body from which an appeal is authorized to the common pleas
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court, in this case the State Personnel Board of Review. If that construction is applied, only employee Davis, as the lone person falling within the definition of “party,” and the State Personnel Board of Review, as the “agency,” are privileged to appear. As the State Personnel Board of Review filed no notice of appeal, it is not necessary to address its interest, if any, as an agency.
The sheriff, on the other hand, appealed. In his reply brief he contends that he cannot, in any sense, be considered an agency. I agree. His appeal rights to this court then, if any, must be bottomed on his being classified as a “party.”
For this court to have jurisdiction to hear the sheriffs appeal from the judgment of the common pleas court it must be concluded that the sheriff is a “party” within the meaning of that term as defined in R.C. 119.01.1 am unable to do so.
Returning to the twelfth paragraph of R.C. 119.12, I note further that the language authorizing appeal from the common pleas court to the court of appeals is singular, not plural, in nature. Thus, it states “* * * appeals may be taken either by
the party
or the agency * * *.” (Emphasis added.) If it were intended by the legislature that the sheriff, defined as the “appointing authority” for purposes of R.C. 124.34, should also be a “party” for purposes of R.C. 119.12, then the twelfth paragraph of R.C. 119.12 should read that appeals may be taken either by
a
party or the agency, and not by
the
party, which by definition in R.C. 119.01(G) limits the term “party” only to the person whose interests are the subject of an adjudication by an agency.
Both the appellant and appellee cite
State, ex rel. Osborn,
v.
Jackson
(1976), 46 Ohio St. 2d 41 [ 75 O.O.2d 132 ], as support for their respective positions. I find it is the authority necessary for determination of whether this court has jurisdiction over this appeal.
Osborn, supra,
was a mandamus action resolved in the Supreme Court which held, in effect, that the Director of Transportation did not have a right to appeal the decision of the State Personnel Board of Review to the common pleas court. That issue, however, is not before us. The importance of
Osborn
lies in its interpretation of what R.C. 119.01(F) and (G) mean, which decision as to meaning must be followed in the case
sub judice.
The opinion in
Osborn
includes the following at 49-50:
“The word
party
is defined by statute. A
party
is ‘[t]he
person
whose interests are the subject of an adjudication by an agency.’ R.C. 119.01(G).
“The Administrative Procedure Act defines
person
as ‘a person, firm, corporation, association, or partnership.’ R.C. 119.01(F).
“To be a
party
one must first be a
person.
The Administrative Procedure Act’s definition of the word
person
does not include the state. Nor does it include any state agency. Nor does it include the director of any agency. Nor is the state on the relation of any department, director or agency a
person.
“If the General Assembly had intended to give the director of a state department or the state on relation of the director a right of appeal, it could have done so. It did not. In fact, the General Assembly gave both the employee and the director a right of appeal in those instances where it so intended and did not give the right of appeal where it so intended. In R.C. 124.34, the pertinent language reads as follows:
“ ‘In cases of removal or reduction in pay for disciplinary reasons, either the appointing authority or the officer or employee may appeal from the decision of the State Personnel Board of Review * * * to the Court of Common Pleas of the county in which the employee resides in accordance with the procedure provided by Section 119.12 of the Revised Code.’ ”
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Further, the majority opinion cites-
Harris
v.
Lewis
(1982), 69 Ohio St. 2d 577 [ 23 O.O.3d 485 ]. I find it totally inapplicable. At issue was which common pleas court should constitute the proper forum for an appeal to the common pleas court.
Harris
has no relevance to the issue at bar.
The majority also cites
Jackson
v.
Chapman
(1978), 54 Ohio St. 2d 282 [ 8 O.O.3d 263 ]. I agree that R.C. 124.34 provides, in cases of removal, that either the appointing authority or the officers or employee may appeal from the decision of the State Personnel Board of Review to the common pleas court pursuant to the procedure provided by R.C. 119.12. This right to appeal, however, is not in dispute. Such appeal has already been taken and is not an issue in this appeal. The question is the limitation imposed on further appeal to the court of appeals by R.C. 119.12, when the “party,” as defined in R.C. 119.01, has not appealed. The sheriff, who does not fall within the definition of “party” under R.C. 119.01, is not procedurally qualified to appeal to the court of appeals. Support for my reasoning for the above statement comes from
Davis
v.
Bd. of Review
(1980), 64 Ohio St. 2d 102 [ 18 O.O.3d 345 ], cited by the majority.
Davis
deals primarily with the question of the appropriate common pleas forum on appeal. The more
significant
aspect of
Davis, supra;
however, is the following quotation near the end of the opinion at 106, as follows:
“As further support for our decision in this case, we note that, while the appointing authority has a right of appeal in removal cases under R.C. 124.34, see
Scott
v.
Reiner
(1979), 58 Ohio St. 2d 67 , an appointing authority does not fall within the definition of ‘party’ as used in R.C. 119.12, and thus has no right of appeal under that section.
State, ex rel. Osborn,
v.
Jackson
(1976), 46 Ohio St. 2d 41 . ***"
The majority also states the Supreme Court determined in
State, ex rel. Davies,
v.
Elyria
(1980), 62 Ohio St. 2d 443 [ 16 O.O.3d 460 ], that a party to an R.C. 124.34 appeal in common pleas court also has a right to appeal to the court of appeals. I agree that anyone who constitutes a “party” has that right under R.C. 124.34. That is the basis for my dissent. “Party,” as it was discussed in the
Davies
case, was the aggrieved person as defined by R.C. 119.01. The
Davies
decision, therefore, has no application herein, where the sheriff, by definition, is not a party.
The majority suggests that the sheriff was a “party” in the common pleas court, and being adversely affected by the judgment of the court, was a proper party to appeal pursuant to R.C. 2505.03. The majority cites
In re Removal of Taylor
(1961), 172 Ohio St. 394 [ 16 O.O.2d 248 ], as support. That case involved an appeal from a decision of a
municipal
civil service commission. The distinction between that case and the one at issue is that the case
sub judice
was not a municipal civil service case, but rather one involving a sheriffs employee whose appeal was to the state Civil Service Commission. Judge C. William O’Neill, as part of his opinion, stated the following at 395:
“This court does not agree with the contention of Taylor that Section 119.12, Revised Code, is applicable to this appeal. Section 119.01, Revised Code, defines the agencies to which Section 119.12 is applicable. Reference is made in Section 119.01 to the civil service commission, but a careful reading of both sections makes it clear that this reference is to the state Civil Service Commission and not to a municipal civil service commission.”
I am of the impression that the reliance placed by the majority on
Taylor, supra,
that the sheriff is a proper party to appeal by reason of R.C. 2505.03, is misplaced.
The construction and meaning of R.C. 124.34 and 119.12 as interpreted with the help of the Supreme Court in
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Osborn, supra,
leads me to the inescapable conclusion that the court of appeals is without authority to hear the sheriffs appeal from the judgment of the common pleas court.
As I believe we are without authority to address the assignments of error, I would dismiss the appeal.