485 N.E.2d 250 | Ohio Ct. App. | 1984
Lead Opinion
Appellee, Lemmie Davis, was originally removed from his position as deputy sheriff with the Lorain County Sheriff's Department on November 25, 1981. Appellee subsequently appealed his removal to the State Personnel Board of Review.
On July 29, 1982, the State Personnel Board of Review affirmed appellee's removal. The court below reversed and modified specifically finding that the decision of the State Personnel Board of Review was not based on sufficient *151 evidence and was in fact against the manifest weight of the evidence.
The appeal before us is that of the Sheriff of Lorain County taken from the above judgment of the common pleas court.
The very first question that must be resolved is whether the sheriff has a right of appeal to this court. If there is no right of appeal to this court, it follows we are without jurisdiction to review the judgment of the common pleas court.
It has long been recognized that jurisdiction cannot be vested with a court that is without jurisdiction, even by agreement of the parties. Normally the attention of the court is directed to the question of its jurisdiction by motion of one of the parties to the appeal. This was not done in this instance. Instead, this court's attention was focused on that question at the time the appellee filed his brief when he said, "[T]he appellant has no standing to maintain this appeal and this court is without jurisdiction to hear this appeal." This again was brought to the court's attention in oral argument. If, as a practical matter, we determine we are without jurisdiction, the manner in which the objection is raised, not by specific motion in the court of appeals, but instead by his appellate brief, the challenge, in our opinion, would be timely and sufficient.
In other words, as noted in paragraph two of the syllabus inState, ex rel. Lander, v. Prestien (1916),
"It is not error for a court of appeals to sustain a motion to dismiss an appeal, for want of jurisdiction, filed after the cause has been submitted to the court upon its merits."
Our situation, if allowed, would permit dismissal without the filing of a motion to dismiss. The full significance of the second paragraph of the syllabus above is noted, however, in the last paragraph of that court's opinion at 427-428 when it said:
"The motion to dismiss in this case was interposed before judgment. The mere fact that the cause had been submitted upon its merits did not prevent that court from entertaining that motion, or, for that matter, dismissing the case sua sponte, if upon consideration it reached the conclusion that it had no jurisdiction on appeal."
In the instant case, even though not raised by a motion to dismiss, the question of the jurisdiction of this court to hear the appeal, consistent with the opinion in Prestien, supra, has been adequately brought to this court's attention.
We come now, then, to whether this court has jurisdiction to consider the sheriff's appeal.
The first paragraph of R.C.
R.C.
The right of appeal is not an inherent or inalienable right, but must be conferred by constitution or statute. Corn v. Bd. ofLiquor Control (1953),
It has been long established that an aggrieved party in the court of common pleas may appeal to the court of appeals. Warren
v. Cincinnati (1959),
"2. The trial court erred to the prejudice of appellant sheriff and as a matter of law and had no statutory authority after having found the facts as stated in its entry under R.C.
Davis was dismissed for failing to follow proper procedures in detaining and transporting a juvenile offender and for making sexual advances to the same person. After hearing evidence, the State Personnel Board of Review affirmed the dismissal. Davis appealed to the court of common pleas pursuant to R.C.
It is uncontroverted that Davis stopped a Corvette driven by Richard Lovejoy on Route 57 in Lorain County at approximately 1:30 a.m. on November 16, 1981. It is also uncontroverted that a young woman was in the car with Lovejoy. Davis and Lovejoy agree that Lovejoy was backing up along the berm when the stop occurred; the woman testified that the car was proceeding forward at the time. It is uncontroverted that Davis radioed a vehicle and driver's license check, both of which showed no problems. It is also uncontroverted that *153 Davis asked the woman to identify herself, which she did, and gave her age as eighteen. Davis asked the woman to accompany him to his cruiser while he ran the license check, and it is uncontroverted that she did get in the cruiser. When the license check yielded no outstanding warrants, Davis instructed Lovejoy to drive to a nearby restaurant for some coffee. Davis testified that the woman got in the car with Lovejoy and that Davis followed them to the restaurant to make sure Lovejoy could drive properly. Lovejoy and the woman testified that she rode to the restaurant in the cruiser. Davis testified that he left the two people in Lovejoy's car at the restaurant and did not see them again that evening. The woman testified that Davis offered to drive her home, took her to a secluded area, made sexual advances which she resisted, then drove her to a street corner and dropped her off. She testified that she went into a nearby bar to use the bathroom, and was able to get a ride to her father's house with one of the patrons of the bar.
The woman was a resident of the Youth Services Group Home, was seventeen, and had run away that evening. She testified that she had told Davis her situation during the traffic stop. The woman and Lovejoy both admit that they had been drinking that evening. A waitress at the restaurant testified that Lovejoy came in alone between 1:30 a.m. and 2:30 a.m. and had a cup of coffee and left. The manager at the bar testified that the woman came in to use the bathroom after 2:15 a.m. A friend of Lovejoy testified that he recounted his story to her when he arrived at her house shortly after 2:30 a.m. The woman's father testified that she arrived at his house at about 3:00 a.m. and she recounted her story at that time.
The hearing officer found that the young woman was not credible, and that her story by itself was not believable. She also found that Lovejoy's veracity was at issue because he was a convicted felon, but that Davis was a credible witness. The hearing officer did find that the woman's testimony was corroborated by a waitress and Lovejoy's friend. The hearing officer concluded that it was established by a preponderance of the evidence that Davis:
"* * * transported a juvenile female, without notifying the Sheriff's Dispatcher as required by departmental policies and rules, to a location other than her parents' home or a detention home and attempted to engage in sexual conduct with this juvenile."
The common pleas court reviewed the record from the board of review and agreed that Davis was credible while the woman was not credible. The court also determined that Lovejoy was not a credible witness. The common pleas court determined that the decision of the board of review was not supported by reliable, probative, and substantial evidence, and modified the dismissal to a sixty-day suspension.
In defining the scope of review under R.C.
"In Andrews, this court acknowledged that determining whether an agency order is supported by reliable, probative and substantial evidence essentially is a question of the absence or presence of the requisite quantum of evidence. Although this in essence is a legal question, inevitably it involves a consideration of the evidence, and to a limited extent would permit a substitution of judgment by the reviewing Common Pleas Court.
"In undertaking this hybrid form of review, the Court of Common Pleas must give due deference to the administrative resolution of evidentiary conflicts. For example, when the evidence before the court consists of conflicting testimony of approximately equal weight, the court should defer to the determination of the administrative *154 body, which, as the factfinder, had the opportunity to observe the demeanor of the witnesses and weigh their credibility. However, the findings of the agency are by no means conclusive.
"Where the court, in its appraisal of the evidence, determines that there exist legally significant reasons for discrediting certain evidence relied upon by the administrative body, and necessary to its determination, the court may reverse, vacate or modify the administrative order. Thus, where a witness' testimony is internally inconsistent, or is impeached by evidence of a prior inconsistent statement, the court may properly decide that such testimony should be given no weight. Likewise, where it appears that the administrative determination rests upon inferences improperly drawn from the evidence adduced, the court may reverse the administrative order." Univ. of Cincinnati v.Conrad (1980),
In this case both the hearing officer and the common pleas court found the chief witness to be incredible. The trial court also found Lovejoy to be incredible. While their testimony is buttressed by other witnesses, such other witnesses contribute nothing concerning the alleged sexual advances, whether the woman advised Davis of her age, or whether she had informed Davis that she had escaped from a group home. These facts are crucial to the board's findings on several of the charges of misconduct. Under the standards set out in Univ. of Cincinnati v. Conrad, supra,
the common pleas court could properly reject the young woman's uncorroborated testimony on these charges. Upon finding that the decision of the board is not supported by substantial, reliable, and probative evidence, the court may modify the decision of the board. R.C.
The record reveals that a hearing was had on October 12, 1982, and the parties were afforded the opportunity to file briefs. Accordingly, we overrule this assignment of error.
The sheriff argues that the action of the common pleas court usurps the sheriff's duty to appoint his deputies under R.C.
Accordingly, we overrule this assignment of error and affirm the decision of the trial court.
Judgment affirmed.
QUILLIN, P.J., and BAIRD, J., concur.
HOFSTETTER, J., dissents.
HOFSTETTER, J., retired, of the Eleventh Appellate District, was assigned to active duty under authority of Section 6(C), Article IV, Constitution. *155
Dissenting Opinion
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.
Acknowledging the above, that R.C.
The procedural aspects of R.C.
"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 eitherby the party or the agency and shall proceed as in the case of appeals in civil actions as provided in sections
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.
"(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.
The meaning of the term "agency," as used in the twelfth paragraph of R.C.
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 sheriff's 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.
Returning to the twelfth paragraph of R.C.
Both the appellant and appellee cite State, ex rel. Osborn, v.Jackson (1976),
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.
The opinion in Osborn includes the following at 49-50:
"The word party is defined by statute. A party is `[t]heperson whose interests are the subject of an adjudication by an agency.' R.C.
"The Administrative Procedure Act defines person as `a person, firm, corporation, association, or partnership.' R.C.
"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.
"`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
Further, the majority opinion cites Harris v. Lewis (1982),
The majority also cites Jackson v. Chapman (1978),
"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.
The majority also states the Supreme Court determined in State,ex rel. Davies, v. Elyria (1980),
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.
"This court does not agree with the contention of Taylor that Section
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.
The construction and meaning of R.C.
As I believe we are without authority to address the assignments of error, I would dismiss the appeal.