Opinion
No. 77-1302
Decided December 6, 1978.
Office and officer — Removal of appointee from office by Governor — R.C. 3.04 — Constitutionality.
R.C. 3.04 does not contravene Section 32 of Article II of the Constitution of Ohio.
APPEAL from the Court of Appeals for Franklin County.
This case arises from the judgment of the Court of Appeals which, on September 29, 1977, affirmed the Court of Common Pleas grant of summary judgment to appellees.
The record in this cause shows that on July 13, 1972, appellee, as Governor of Ohio and acting with the advice and consent of the Ohio Senate, appointed appellant to the Industrial Commission of Ohio for a term beginning February 15, 1972, and ending August 13, 1977.
On January 6, 1976, pursuant to the authority vested in him by R.C. 4121.03, appellee caused to be delivered to appellant a "Statement of Causes," which set forth reasons why appellant should be removed from the commission. Appellant was charged with (1) inefficiency in office; (2) neglect of duty in office; and (3) malfeasance, misfeasance and nonfeasance in office.
In response to appellee's charges, appellant made a "Demand for Hearing," which, in applicable part, stated:
"* * * that the purported action of Governor Rhodes herein, on January 6, 1976, is violative of the rights guaranteed Stebbins and other public officers by Section 38 of Article II of the Constitution of Ohio, is unlawful and ultra vires, and is not in accordance with the statutory procedures for removal of public officers who have been appointed by the Governor with the advice and consent of the Senate of Ohio as such procedures are set forth in Chapter 3 of the Revised Code of Ohio, specifically but not limited to, Section 3.04 of the Revised Code.
"* * *
"* * * that the aforesaid purported Order of Removal is illegal, unlawful, void and of no effect; * * * that pursuant to Section 38 of Article II of the Constitution of Ohio and Section 3.04 of the Ohio Revised Code, he is entitled to a hearing in the Senate of Ohio and that he may not be removed from office for cause until after such hearing in the Senate and until the Senate of Ohio acts on such purported removal and does or does not advise and consent thereto by roll call vote, the result of which is spread at large on the Journal of the Ohio Senate."
Thereafter, appellant commenced in federal district court a declaratory judgment action seeking an order which would find R.C. 4121.03 unconstitutional and a preliminary and permanent injunction which would restrain appellee from removing appellant from office.
In accordance with negotiations conducted by both parties on the morning of March 4, 1976, appellant's counsel, by letter of the same day, notified Judge Duncan of the district court:
"* * * I have received permission from my client to approve a consent entry, holding in abeyance all further proceedings in the above-captioned case, on the condition that the Governor immediately serve notice upon the Ohio Senate that he is seeking their advice and consent to remove Mr. Stebbins from his office * * * as provided by the provisions of Section 3.04 of the Ohio Revised Code."
A consent entry was filed in the federal district court on March 23, 1976, which incorporated appellee's request and stayed the federal action until appellee determined whether to proceed under R.C. 3.04.
On April 6, 1976, appellee served upon the Senate a "Request for Advice and Consent of the Senate, State of Ohio," for the removal of appellant from office. Appellant was charged therein with ten separate and specific causes for removal.
By letter dated May 17, 1976, the chairman of the Senate Judiciary Committee notified appellant that hearings would be conducted in the matter of his removal, and that they would be held in a manner which would afford appellant his right to due process.
Appellant then commenced an action in the Court of Common Pleas of Franklin County for a declaratory judgment that R.C. 3.04 is unconstitutional, and for a preliminary and permanent injunction preventing appellant's removal from office.
The hearings before the Senate Judiciary Committee were commenced on June 17, 1976. It is undisputed that appellant was in attendance and was represented by four attorneys. On September 7, 1976, the committee voted 6 to 3 to recommend to the Senate that it advise and consent to appellant's removal.
On October 18, 1976, in a special session, the Senate voted 23 to 10 to advise and consent to appellant's removal, and by letter dated October 20, 1976, appellee notified appellant of his removal from office, effective the same day.
After motions and cross-motions for summary judgment were filed in the action pending in the Court of Common Pleas, appellees' motion for summary judgment was sustained on March 18, 1977. The Court of Appeals affirmed the judgment of the trial court and held that R.C. 3.04 was a constitutional enactment. The court held also that appellant had been afforded procedural due process.
This cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Fontana, Ward Kaps, and Mr. William J. Melvin, for appellant.
Messrs. Crabbe, Brown, Jones, Potts Schmidt, Mr. Charles E. Brown and Mr. Ira Owen Kane, for appellees.
Appellant urges primarily that R.C. 3.04 must be struck down because it fails to explicitly provide that actions for removal shall be upon complaint and hearing, and because it allegedly permits the Senate to invade the province of the judicial branch of government by exercising judicial power in contravention of Section 32 of Article II of the Constitution of Ohio.
R.C. 3.04 provides as follows:
"When not otherwise provided by law, an officer who holds his office by appointment of the governor with the advice and consent of the senate may be removed from office by the governor with the advice and consent of the senate, if it is found that such officer is inefficient or derelict in the discharge of his duties, if the ethics commission created by section 102.05 of the Revised Code has found, based upon a preponderance of the evidence, that the facts alleged in a complaint under section 102.06 of the Revised Code constitutes a violation of Chapter 102 of the Revised Code, if the officer fails to file or falsely files a statement, required by section 102.02 of the Revised Code, or if it is found that he has used his office corruptly. If, in the recess of the senate, the governor is satisfied that such officer is inefficient, derelict, committed such violation of Chapter 102 of the Revised Code, or corrupt, he may suspend such officer from his office and report the facts to the senate at its next session. If in such report the senate advises and consents to the removal, such officer shall be removed, but otherwise he shall be restored to his office."
We decline to reach appellant's contention concerning constitutional due process because the record unequivocally establishes that he was fully accorded his rights in that regard. Appellant was removed for cause upon complaint and after notice and hearing, and he was not prejudiced by that which he argues is a flaw in the statute. American Power Light Co. v. S.E.C. (1946), 329 U.S. 90; State, ex rel. Hoel, v. Brown (1922), 105 Ohio St. 479, 485, 138 N.E. 230; State, ex rel. Allstate Ins. Co., v. Bowen (1936), 130 Ohio St. 347, 367, 199 N.E. 355; see Holbrock v. Smedley (1909), 79 Ohio St. 391, 407, 87 N.E. 269; Prentiss v. Dittmer (1913), 93 Ohio St. 314, 323, 112 N.E. 1021; State, ex rel. Hofstetter, v. Kronk (1969), 20 Ohio St.2d 117, 119, 254 N.E.2d 15.
Appellant's assertion that R.C. 3.04 unconstitutionally permits a breach of the doctrine of separation of powers is not well taken. In discussing this issue, Judge Whiteside stated in the Court of Appeals:
"* * * defendant contends that R.C. 3.04 confers the exercise of judicial power upon the Senate and, therefore, is violative of Section 32, Article II, Ohio Constitution, which provides that:
"`The general assembly shall grant no divorce, nor exercise any judicial power not herein expressly conferred.'
"Although it may under proper circumstances be conferred upon the courts, the power to remove a public officer is not per se the exercise of a judicial power. State, ex rel. Attorney-General, v. Hawkins (1886), 44 Ohio St. 98; State, ex rel. Meader, v. Sullivan (1898), 58 Ohio St. 504; and In re Bostwick (1932), 125 Ohio St. 182. Rather, the power to remove is ordinarily a concomitant of the power of appointment, which by virtue of Section 27, Article II, Ohio Constitution, the General Assembly ordinarily cannot exercise, as held in State, ex rel. Burns, v. DiSalle (1961), 172 Ohio St. 363, the syllabus of which reads:
"`The provision of Section 3769.02, Revised Code, which requires that the names of appointees to the State Racing Commission be submitted to the Senate for its "advice and consent," confers upon the General Assembly an appointive power prohibited by Section 27, Article II of the Constitution of Ohio, and such provision is, therefore, invalid and of no force and effect.'
"Subsequent to the decision in Burns, the people adopted Section 21, Article III, Ohio Constitution, specifically providing that: `When required by law, appointments to state office shall be subject to the advice and consent of the Senate. * * *' That section further provided that:
"`* * * All statutory provisions requiring advice and consent of the Senate to appointments to state office heretofore enacted by the General Assembly are hereby validated, ratified and confirmed as to all appointments made hereafter, but any such provision may be altered or repealed by law.'
"Inasmuch as Section 21, Article III, Ohio Constitution expressly allows the conferring of special appointive power upon the Senate to advise and consent to appointments to state office, the other portion of the appointive power, that is the power to remove, can also reasonably be conferred upon the Senate. We find no constitutional infirmity in a provision that an officer whose appointment was made with the advice and consent of the Senate shall have his removal, for cause, similarly subject to the advice and consent of the Senate.
"In any event, the power to advise and consent to removal of an officer whose appointment was similarly made in no way constitutes the exercise of the judicial power by the General Assembly in violation of Section 32, Article II, Ohio Constitution. * * *"
We concur with the foregoing conclusion of the Court of Appeals and the judgment of that court is affirmed.
Judgment affirmed.
LEACH, C.J., CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.