noting that Ohio courts are not permitted to conduct “judicial review of quasi-legislative proceedings of administrative officers and agencies” and are limited to deciding “whether such rules are reasonable and lawful as applied to the facts of a particular justiciable case.”
How later courts described this case
- noting that Ohio courts are not permitted to conduct “judicial review of quasi-legislative proceedings of administrative officers and agencies” and are limited to deciding “whether such rules are reasonable and lawful as applied to the facts of a particular justiciable case.”
- observing that courts “decide only ‘actual controversies between parties legitimately affected by specific facts’ ”
- it is the duty of courts “to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect” and “to refrain from giving opinions on abstract propositions * * * or advice upon potential controversies”
- “It has been long and well established that it is the duty of every judicial tribunal to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect.”
Written by the judges who cited it.
Distinguished
Distinguished by Burger Brewing Co. v. Liquor Control Commission, 34 Ohio St. 2d 93 (1973)
Fortner is distinguishable.
The opinion
Duncan, J.,
concurring in decision. Only with great hesitancy do I further fan the fire of the result reached herein, with which I agree. The abandonment of a well understood and widely used statutory vehicle for the judicial review of rules promulgated in accordance with R. C. 119.-01 to 119.13 is a matter of great concern. Therefore, I take this opportunity to make my position clear in this very important decision.
As I understand it, the underlying premise of the majority is that the 1968 amendment to Section 4, Article IV of the Ohio Constitution was the enactment of this court’s justiciable case or controversy construction placed upon the original version of Section 2, Article IV. (See cases cited in the majority opinion concerning actual controversy requirements.) The majority opinion states that the use of the phrase “proceedings of administrative officers” shows an intent by the framers of the amendment to maintain the impact of the decisions of the court. I agree, and add that the insertion of the word “justiciable” flavors the entire amendment and represents definite ratification of the interpretations previously issued by this court. Thus, while agreeing with the conclusion that a court’s jurisdiction is constitutionally limited to actual controversies, it is my opinion that any statute which purports to expand that constitutional limitation is unconstitutional.
As I read R. C. 119.11, it attempts to give the courts *21 jurisdiction to review that which the majority calls “quasi-legislative proceedings of administrative officers and agencies.” That section reads in part: “* * * 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.” 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 I believe that the constitutional limitation has been offended.
While I recognize the majority’s desire not to rule a statute unconstitutional unless unavoidable, it is my belief that, as a practical matter, the majority opinion renders R. 0. 119.11 meaningless. I can conceive of no situation other than the review of a quasi-legislative proceeding to which 119.11 would be relevant. Justice Herbert points out that quasi-judicial proceedings are open to attack under Section 119.12, Revised Code. Thus, if the majority is trying to save the constitutionality of R. C. 119.11 because it also grants jurisdiction to review quasi-judicial proceedings, it is implicitly saying that R. C. 119.12 is redundant and repetitive when it grants jurisdiction to review quasi-judicial proceedings. Moreover, R. C. 119.11 and 119.12 by their terms deal with different things. R. C. 119.11 concerns “order[s] adopting * # * rules,” whereas R. C. 119.12 pertains to an order arising from an “adjudication.”
While I do not disagree with the result reached by the majority opinion, it says merely that R. C. 119.11, supra, cannot be used to review quasi-legislative proceedings because the Ohio Constitution and the cases of this court limit jurisdiction to the review of quasi-judicial proceedings.
If the Ohio Constitution is truly an instrument of limitation of legislative power (see, e. g., State, ex rel. Jackman, v. Court of Common Pleas, 9 Ohio St. 2d 159 , citing *22 McNab v. Board of Park Commrs., 108 Ohio St. 497 , 501), any legislation, insofar as it seeks to exceed those limits, must be violative of the Constitution. Since I perceive the purpose for R. C. 119.11, supra, in part, to be an attempt to grant jurisdiction to review quasi-legislative proceedings and since such a grant is prohibited by the actual controversy requirement as contained in the Constitution and as construed by this court, I believe that there is no cognizable way to avoid holding R. C. 119.11 unconstitutional insofar as judicial review of quasi-legislative rules is involved.
Schneider, J., concurs, also, in the foregoing concurring opinion.