Berlin v. Administrator, Ohio Bureau of Employment Services

I respectfully dissent from the majority opinion regarding the appellant's second assignment of error.

The majority's reliance on 3910 Warrensville Center, Inc. v.Warrensville Hts. (1984), 20 Ohio App.3d 220, is clearly misplaced. The statute which this court interpreted inWarrensville Hts., supra, is distinguishable from the statute before the court in the case sub judice. The statute inWarrensville Hts., supra, dealt with an appeal of a zoning decision made by the Warrensville Heights City Council. The statute in the case sub judice deals with an appeal of the board of review's unemployment compensation decision.

Furthermore, the statute in Warrensville Hts., supra, R.C.2506.04, uses permissive language; it reads in pertinent part:

"The court may find that the order, adjudication or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication or decision, or remand the cause to the officer or body appealed from with instructions to enter an order consistent with the findings or opinion of the court." (Emphasis added.)

R.C. 4141.28(O) which is at issue here uses mandatory language; it reads in pertinent part:

"If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, itshall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision." (Emphasis added.)

I find Vest v. Bd. of Review (1952), 93 Ohio App. 504 [51 O.O. 217] controlling on the issue presently before this court. InVest the predecessor statute to R.C. 4141.28(O), G.C. 1346-4, was before the Court of Appeals for Montgomery County. In Vest the court found the trial court's judgment, which reversed the board of review's decision because its decision was "incorrect," did not meet the mandatory requirements of the statute. The Vest court stated at 506:

"Under this provision of the Code, before the Common PleasCourt has the power to reverse the decision of the board ofreview, it must find that such decision was ``unlawful,unreasonable, or against the manifest weight of the evidence.' [Emphasis added.] The judgment of the Common Pleas Court contained no such finding. The finding was that the decision of the board of review was incorrect. [Emphasis in original.] This finding does not meet the mandatory requirements of the statute. Thus, the finding and judgment of the Common Pleas Court does not form a proper predicate for review by this court."

Similarly, in the case sub judice, the trial court failed tocite the mandatory standard of review, viz., the board's decision was "unlawful, unreasonable, or against the manifest weight of the evidence," in its journal entry. When the trial court failed to specify its reasons for reversing the board's decision the trial court erred by not complying with the mandate of R.C.4141.28(O). Consequently, I would reverse and remand this case for the trial court to apply the correct, mandatory standard of review as set forth in R.C. 4141.28(O).