stating that “collateral attacks cannot be maintained by an action in mandamus”
How later courts described this case
- stating that “collateral attacks cannot be maintained by an action in mandamus”
Written by the judges who cited it.
The opinion
Celebrezze, C.J.,
concurring in judgment only. I concur in today’s result, but deem it appropriate to add the following observations concerning an issue raised in this action but not fully addressed in the majority opinion.
In support of its complaint, relator alleges misconduct, bias, prejudice and possibly a financial stake in the outcome by one of the members of the dealer’s board (David Mainwaring) who cast a vote against franchisor Ford’s proposal. 6
Relator contends that Ford may be barred from raising the issue of Mainwaring’s prejudice in its R.C. Chapter 119 appeal as it involves facts and assertions outside the record. Relator points out that appellees in the R.C. Chapter 119 appeal are vigorously asserting that no issues of prejudice may be heard in that forum since R.C. Chapter 119 appeals are limited by statute to the record of the protest proceeding below. Relator therefore argues that the instant action provides the only certain forum where Mainwaring’s alleged bias may be considered.
It is a fundamental due-process requisite that administrative adjudications must be fair and open. Ohio Bell Tel. Co. v. Pub. Util. Comm. (1937), 301 U.S. 292 . Fraud, collusion and mistake have all been recognized as grounds for reversal of an administrative decision on appeal. Powell v. Young (1947), 148 Ohio St. 342, 353 [ 35 O.O. 322 ]; Brannon v. Bd. of Edn. (1919), 99 Ohio St. 369 , paragraph three of the syllabus; State, ex rel. Gongwer, v. Graves (1914), 90 Ohio St. 311 , paragraph three of the syllabus. The right to a fair and impartial decision-maker is one of the most fundamental rights of a party in a proceeding and it is well-settled that the adjudicator may not have a financial stake in the outcome. Gibson v. Berryhill (1973), 411 U.S. 564 ; Ward v. Village of Monroeville (1972), 409 U.S. 57 ; State, ex rel. Basista, v. Melcher (1963), 118 Ohio App. 37, at *396 47 . See, also, Tumey v. Ohio (1927), 273 U.S. 510 . In light of the above precedent, it would appear that if relator, in an appropriate setting, could prove the alleged prejudice due to a stake in the outcome of member Main-waring, the decision by the dealers board would be voidable. The resulting issue is therefore whether the allegations presented herein are sufficient to consider the merits of the mandamus complaint or whether the statutorily prescribed legal remedies concerning Ford’s appeal are sufficient to protect relator’s interest.
In this regard, it has been held that review of an administrative decision does not proceed as a trial de novo, Lies v. Veterinary Medical Bd. (1981), 2 Ohio App. 3d 204, 207 , and can not ordinarily and automatically consider matters not part of the record, City Products Corp. v. Bd. of Liquor Control (1958), 106 Ohio App. 494, 496 ; and is limited to a decision as to whether the order is supported by reliable, probative and substantial evidence and not whether a gross abuse of discretion is present. In re Hennis (App. 1977), 7 O.O. 3d 170.
However, R.C. 119.12 grants the court discretion to admit new evidence outside the record. The “new” evidence does not refer to events subsequent to the hearing but rather additional evidence which is “newly discovered and could not * * * have been ascertained prior to the hearing * * *.” R.C. 119.12; In re Lane Nursing Home (C.P. 1976), 5 O.O. 3d 146, 148. Additionally, the scope of review for the court of common pleas includes a mandate to determine if the order “* * * is in accordance with law.” R.C. 119.12. As noted above, it is settled that a hearing which does not comport with fundamental due process is unconstitutional. Accordingly, it would not be “in accordance with the law.” While abuse of discretion may not be within the scope of review under R.C. 119.12, certainly the issue as to whether the agency had properly conducted an unbiased proceeding would be. See, also, Gibraltar Mausoleum Corp. v. Cincinnati (1981), 1 Ohio App. 3d 107, at 110 ; State, ex rel. Helsel, v. Bd. of County Commrs. (1948), 83 Ohio App. 388, 392 [ 38 O.O. 347 ].
The courts in the pending R.C. Chapter 119 appeal may find that the evidence of prejudice is not newly discovered or does not rise to a level whereby the hearing was not conducted in accordance with law. Nevertheless, the potential for such an adverse outcome is an insufficient basis to support relator’s contention that the court of common pleas is not the appropriate forum to entertain an appeal from an administrative order pursuant to R.C. 119.12. It is possible that the courts will ultimately find in favor of Ford on other grounds, grant the relief requested, or address the issues herein presented on the merits. In any event, Ford’s R.C. Chapter 119 appeal is the appropriate vehicle to raise a challenge to the board’s reconsideration and order.
R.C. 4517.30 provides that of the eleven members of the Motor Vehicle Dealers Board, “[t]hree shall represent the public * * As regards which members of the board may conduct a protest hearing, R.C. 4517.57(D) states “[o]nly the public members of the board * * * shall participate in, deliberate on, hear, consider, or decide any matter involving a protest * * * })
Relator argues that Mainwaring can not properly be a voting public member of the board because he is inextricably linked to the protesting dealers and their member organizations, the Ohio Automobile Dealers Association (“OADA”). Relator draws our attention, inter alia, to stipulations which demonstrate Mainwaring was a past vice-president of the OADA; a former lobbyist for that association; past president and presently owns a portion of the Dealers Alliance Corporation (“DAC”) (DAC sells liability insurance to automobile dealers); and that one of the protesting dealers is a customer of DAC.