Princeton City Sch. Dist. v. State Bd. , 96 Ohio App. 3d 558 ( 1994 )

I fully agree with my colleagues in the majority that the first assignment of error is not well taken, but, in my view, there is no need to articulate an alternative ground to justify the trial court's decision. I agree with the trial court that the resolution of this case is compelled by legislative intent. I believe that what are denominated as "guidelines" in R.C.3301.0714 are actually rules, that the legislature intended to exempt them from the APA, and that it is constitutionally permissible for the legislature to do this.

As an initial matter, guidelines are the functional equivalent of rules if they have a general, uniform operation and have the force and effect of law. Doyle,51 Ohio St.3d at 47, 554 N.E.2d at 99; see, also, McLean Trucking,70 Ohio St.2d at 113, 24 O.O.3d at 191-192, 435 N.E.2d at 419; Ohio Nurses,44 Ohio St. 3d at 76, 540 N.E.2d at 1355-1356. A review of the guidelines here in question compels the conclusion to me that they are an administrative means for the accomplishment of a legislative end — the exact definition of an administrative agency rule in Carroll v. Dept. of Adm. Servs. (1983), 10 Ohio App.3d 108, 110, 10 OBR 132, 133-134, 460 N.E.2d 704, 706, cited with approval inDoyle, 51 Ohio St.3d at 47, 554 N.E.2d at 99. Nevertheless, to me the more important issue is what the legislature intended, not whether these are guidelines or rules. As noted in Henry v.Cent. Natl. Bank (1968), 16 Ohio St.2d 16, 45 O.O.2d 262,242 N.E.2d 342, paragraph two of the syllabus:

"The primary purpose of the judiciary in the interpretation or construction of statutes is to give effect to the intention of the General Assembly, as gathered from the provisions enacted, by the application of well-settled rules of interpretation, the ultimate function being to ascertain the legislative will."

In an earlier version of EMIS, the legislature denominated these same guidelines as rules. 143 Ohio Laws 735-736. In a lawsuit involving these same parties, the trial court found the rules to be void because they were promulgated out of the APA rulemaking process.¹ To correct the problems found in the previous lawsuit, the legislature passed the present version of the statute, which was signed by the Governor on April 30, 1992.

In the second version of EMIS, the legislature clearly expressed its intent to exempt the guidelines from the rulemaking process. First, in Am.Sub.H.B. No. 437, Section 5, 144 Ohio Laws, Part IV, 5514-5515, the General Assembly stated that it intended for the state Department of Education to adopt the "guidelines pursuant to rules without the necessity of subjecting the guidelines to the rulemaking procedures" of the APA. Next, the legislature changed the statutory definition of "rule" to read: "`Rule' does not include * * * guideline adopted pursuant to 3301.0714 of the Revised Code." R.C. 119.01(C). Third, the legislature provided that once the guidelines were passed, they were exempt from legislative oversight under R.C.111.15.² R.C. 111.15(A)(1). Last, the legislature stated that the rules and guidelines created under the initial version of EMIS were "hereby ratified by the General Assembly." Am.Sub.H.B. No. 437, Section 5, 144 Ohio Laws 5514-5515.

The legislature has provided a wealth of information to show that it intended to exempt the EMIS guidelines from the APA rulemaking process; therefore, the question is whether the General Assembly has the power to do so constitutionally. The APA, which itself is an invention of the legislature, was created in 1943. See, generally, 119 Ohio Laws 388; 120 Journal of the Senate of the Ninety-Fifth General Assembly of the State of Ohio (1943) 1119; Karrick v. Bd. of Edn. (1963), 174 Ohio St. 467,469, 23 O.O.2d 114, 115, 190 N.E.2d 256, 257. Before the legislature created the APA, however, it had already granted rulemaking power to numerous agencies. In the pre-APA period, the Ohio Supreme Court found this rulemaking delegation to be constitutionally permissible when the legislature had supplied a sufficient policy framework in the statute. See, e.g., Matz,132 Ohio St. at 276, 8 O.O. at 43-44, 7 N.E.2d at 225; Coady at paragraph one of the syllabus; Thompson, 134 Ohio St. at 127, 11 O.O. at 552, 16 N.E.2d at 211; Zangerle, 139 Ohio St. at 573, 23 O.O. at 55-57, 41 N.E.2d at 373-374.

Not only did the legislature properly grant rulemaking authority before it created the APA, but since that time, it has exempted whole agencies from the requirements of R.C. Chapter 119. In these post-APA exemptions, the Ohio Supreme Court also found the agency's rules to be valid when the legislature had granted rulemaking authority in the agency's enabling statute, but exempted the agency from the APA. For example, municipal civil service commissions are granted rulemaking authority in R.C. 124.40 and are exempted from the APA in R.C. 119.01(A).Karrick, 174 Ohio St. at 469, 23 O.O.2d at 115,190 N.E.2d at 258 (construing R.C. 143.30, the former version of R.C. 124.40). The Ohio Supreme Court held that the rules, even though created out of the APA, were binding and lawful. Id. Similarly, in R.C.3745.03, the legislature granted the Environmental Board of Review ("EBR") rulemaking power. In the enabling statute, the legislature exempted EBR from the APA, stating:

"The authority and the duty of the board to adopt regulations under this section shall not be governed by or be subject to Chapter 119. of the Revised Code."

Therefore, "the Board's rulemaking authority is not subject to R.C. Chapter 119." 1979 Ohio Atty.Gen.Ops. No. 79-088.³

Finally, the legislature expressly has stated that:

"Unless otherwise specifically provided by law, the failure of any agency to comply with the [APA] procedure shall invalidate any rule or amendment adopted * * *." (Emphasis added.) R.C. 119.02.

When it established EMIS, the legislature, consistent with this provision, "otherwise specifically provided by law" that the guidelines are exempt from the APA procedures. See, generally, R.C. 119.01(C) and 111.15(A)(1).

Just as in these other post-APA examples, when the legislature created EMIS in R.C. 3301.0714, it granted the state board rulemaking authority. In R.C. 119.01(C), however, the legislature exempted EMIS guidelines from the APA rulemaking process. Appellants have cited no authority holding that the legislature cannot do so. Therefore, even though these guidelines are the functional equivalent of rules, the legislature has not unconstitutionally delegated its legislative authority.

For these reasons, I concur with the majority's conclusion that the first assignment of error is not well taken.

¹ Princeton v. State Bd. of Edn. (Jan. 9, 1992), Hamilton C.P. No. A-9106568, unreported. Other parts of the earlier statute that are irrelevant to this dispute were also invalidated.

² The legislature has also created a process by which the legislature can invalidate rules passed by an agency. After the agency passes a rule, it files a draft with the Secretary of State and Joint Committee on Agency Rule Review. R.C.111.15(B)(1)(a), (b). After reviewing the draft, the legislature may invalidate the rule if it: (1) exceeds the scope of the enabling statute; (2) conflicts with previously enacted rules; (3) conflicts with the legislative intent; (4) does not provide a complete summary and analysis. R.C. 119.03(I). See, generally, Comment, The Continued Viability of Ohio's Procedure for Legislative Review of Agency Rules in the Post-Chadha Era (1989), 49 Ohio St.L.Rev. 251.

³ Once it has created a rule, the EBR, unlike the state board in EMIS, is required to comply with R.C. 111.15, the legislative-review process. 1979 Ohio Atty.Gen.Ops. No. 79-088.