Orth v. State of Ohio, Dept. of Edn
2015 Ohio 3977
Ohio Ct. App.2015Background
- In 2010 ODE charged teacher Sherry Orth under R.C. 3319.31(B)(1) for conduct related to injuries to a child; a hearing officer recommended permanent revocation of her license.
- The State Board of Education adopted the revocation in April 2011; Orth appealed to the common pleas court, then to this court which reversed and remanded (Orth I).
- On remand the Board vacated the 2011 order, sent the matter back to a hearing officer, and in March 2013 entered a resolution suspending Orth’s license for a defined period.
- Orth sought attorney fees under R.C. 119.092; she first filed a fee motion in this court (Apr 3, 2013) and then filed a motion with the Board on Apr 29, 2013—more than 30 days after the Board’s journal entry (Mar 14, 2013).
- The hearing officer and then the Board denied the fee motion as untimely (and as to substance), Orth appealed to the common pleas court which affirmed; Orth appealed to this court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Orth timely filed her R.C. 119.092 fee motion | Orth: filing a fee motion in this court under R.C. 2335.39/119.092 on Apr 3, 2013 (and serving ODE) satisfied the statutory filing requirement and/or tolled the deadline to file with the agency | ODE: R.C. 119.092(B)(1) requires filing the motion with the agency within 30 days after the agency’s order is journalized; the court filing does not satisfy that requirement | The court held Orth’s motion was untimely: R.C. 119.092 requires filing with the agency within 30 days of journalization; filing in court under R.C. 2335.39 does not substitute for that filing |
| Whether the court has appellate jurisdiction over the fee denial under R.C. 119.092(C) | Orth: (implicit) court review appropriate | ODE: R.C. 119.092(C) states the trial court’s judgment is final and not appealable | The court followed precedent (Carruthers) and exercised jurisdiction to decide the pure legal question of timeliness |
| Whether the Board’s denial of fees was an abuse of discretion on the merits | Orth: if timely, denial was an abuse of discretion | ODE: Board was substantially justified and denial proper | Moot — the court did not reach the merits because the fee motion was untimely |
| Whether journalization date or mailing date controls the 30-day deadline | Orth: using journal date lets agency delay mailing and unfairly cut off rights | ODE: statute controls | The court applied the plain language: the journalization date controls; here mailing occurred within 30 days so no due-process problem in the record |
Key Cases Cited
- Ohio Fresh Eggs, L.L.C. v. Boggs, 183 Ohio App.3d 511 (10th Dist. 2009) (discusses attorney-fee exceptions to the American Rule and administrative fee motions)
- Carruthers v. O'Connor, 121 Ohio App.3d 39 (10th Dist. 1997) (R.C. 119.092(C) does not preclude appellate review of pure legal questions)
- Mechanical Contrs. Assn. of Cincinnati, Inc. v. Univ. of Cincinnati, 152 Ohio App.3d 466 (10th Dist. 2003) (parties must comply with statute-specific filing requirements for fee motions)
- State v. Kreischer, 109 Ohio St.3d 391 (2006) (statutory language that is plain and unambiguous controls interpretation)
- Kohl's Illinois, Inc. v. Marion Cty. Bd. of Revision, 140 Ohio St.3d 522 (2014) (courts should avoid deciding constitutional or hypothetical issues not presented on the record)