The opinion
Sweeney and Resnick, JJ.,
concur in the foregoing dissenting opinion. Alice Robie Resnick, J., dissenting. I dissent from the majority’s grant of appellee’s motion to vacate our rehearing entry dated October 8, 1991, and write in order to clarify a number of matters. The decision in this case was announced on August 14, 1991. A motion for rehearing was filed by amicus *1219 curiae Ohio State Building and Construction Trades Council on August 26, 1991. The Ohio AFL-CIO, which had not previously participated as an amicus curiae, also filed a motion for leave to file a rehearing motion as amicus curiae.
Pursuant to Rule IX of the Supreme Court Rules of Practice, a motion for rehearing is to be filed within ten days of the announcement of a decision. In the instant case, the tenth day was August 24, 1991, which was a Saturday. Therefore, the last day on which a motion for rehearing of the case at bar could have been timely filed was Monday, August 26, 1991. See Rule XI of the Supreme Court Rules of Practice. There is no doubt that the motion for rehearing filed by amicus curiae Ohio State Building and Construction Trades Council was in fact made in a timely manner.
I feel the issue regarding the propriety of the rehearing motion filed by the amicus curiae in this case should be addressed. Rule IX of the Supreme Court Rules of Practice does not on its face require that a party be the movant in a motion for rehearing. Rather, Rule IX provides in part:
“Section 1. Motion for Rehearing. A motion for rehearing shall be filed within ten days after the announcement of the decision. Such motion must be confined strictly to the grounds urged for rehearing and must not constitute a reargument of the case. Notice of such motion shall be served on opposing counsel who shall have five days to file his [or her] memorandum contra.”
Therefore, Rule IX of the Supreme Court Rules of Practice does not mandate that a motion for rehearing be filed by a party to the action. Moreover, the members of the labor union granted amicus curiae status by order of this court have a real interest in this case. For example, the Director of the Department of Industrial Relations is charged with enforcing the prevailing wage law in Ohio. See R.C. 4115.10 and 4115.13; and Harris v. Van Hoose (1990), 49 Ohio St.3d 24 , 550 N.E.2d 461 , syllabus (opinion per Justice Herbert Brown): “The Director of the Department of Industrial Relations is authorized, under R.C. 4115.10(C), to enforce prevailing wage claims on behalf of all employees who do not pursue their claims through R.C. 4115.10(A) or (B).” The amicus curiae asserts that because the Department of Industrial Relations was satisfied with the original decision in this case and chose to rely on the ruling and not seek rehearing of the case, the members of the labor union would have no avenue for aggressively asserting their rights except by filing a motion for rehearing on their own. Because there is no prohibition in the express language of Rule IX of the Supreme Court Rules of Practice, and because the amicus curiae has a real interest in this case, this court could properly consider the merits of the motion for rehearing filed by amicus curiae.
*1220 Rather than address the propriety of amicus curiae’s right to file a motion for rehearing, a majority of this court chose to exercise its inherent authority to correct a miscarriage of justice and proceed to sua sponte rehear the case. That decision was not improper or irregular. Indeed, what is irregular and improper is the issuance of a mandate with the original decision. While this practice is apparently employed by this court on a regular basis, it is totally unauthorized by Rule IX of the Supreme Court Rules of Practice, and misleading to the parties.
Counsel for appellee states that a “mandate” was received from this court at the same time that the decision was received. In fact, attached to appellee’s motion to vacate the rehearing order is a document that purports to be a mandate signed by the Chief Justice. Yet, a review of the record in this case reveals that the Clerk of this court never issued a mandate pursuant to Rule IX of the Supreme Court Rules of Practice. Rule IX provides in pertinent part:
“Section 2. Issuance of Mandate. Ten days after the announcement of a decision on the merits, unless a motion for rehearing is filed, the Clerk shall issue a mandate in conformity to the entry of the Court. If a motion for rehearing is filed and denied, the mandate shall issue at the same time as the decision on the motion for rehearing. * * * ” (Emphasis added.)
The Supreme Court Rules of Practice do not authorize a “courtesy copy” of a mandate to be issued by the Chief Justice at the time of the announcement of the decision. Rather, the clear language of Rule IX requires that the Clerk of this court issue the mandate, not the Chief Justice. Moreover, the mandate should be issued ten days after the announcement of this court’s decision and only in the absence of a timely motion for rehearing. In the present case, a motion for rehearing was filed within the ten-day time limit set forth in Rule IX of the Supreme Court Rules of Practice. This court could have either granted or denied the motion for rehearing, but instead a majority of this court chose to sua sponte rehear the case. No valid or effective mandate could have been issued by the Clerk of this court prior to October 8 because a motion for rehearing was indeed pending. Since a mandate could not validly be issued this court clearly and unequivocally had jurisdiction to act. See Rocky River v. State Emp. Relations Bd. (1989), 41 Ohio St.3d 602, 603-604 , 535 N.E.2d 657, 658 (H. Brown, J., concurring). Indeed, appellee agrees that this court has jurisdiction and states in its brief filed with this court on November 4, 1991, that “[a]ppellee does not contend and did not argue in its Memorandum in Support of Motion to Vacate Rehearing Entry, that this Court is without jurisdiction to rehear a decision sua sponte. Rather, it is appellee’s position, fully supported by the prior decisions of this Court, that *1221 this Court’s jurisdiction to rehear a decision, whether upon motion of a party or sua sponte, is limited and cannot be exercised once a decision has become final.” Thus, our order to sua sponte rehear this case was totally proper because even to this day no mandate has been issued in this case by the Clerk in accordance with Rule IX and because the court had before it a viable motion for rehearing. Any reliance on the finality of our decision by either the parties or the general public was premature, particularly since a motion for rehearing was pending. Until the court ruled on this motion for rehearing, our decision of August 14 was subject to modification by a majority of this court. This conclusion is true of any case in which a motion for rehearing is filed, and should be no surprise given Rule IX and the volume of motions for rehearings filed in this court.
Rule IX of the Supreme Court Rules of Practice does not, on its face, require that a party be the movant in a motion for rehearing. The mandate issued in this case by the Chief Justice was a nullity since there was a motion for rehearing filed by the Ohio State Building and Construction Trades Council as amicus curiae. I adhere to the belief that this court possesses inherent authority to correct a miscarriage of justice and should do so in a timely manner. The citizens, the bench and the bar of Ohio cannot afford the luxury of waiting for another case identical to this one to come before us. For all the above reasons, I dissent.
Sweeney and Douglas, JJ., concur in the foregoing dissenting opinion.