State Ex Rel. Barron v. Ohio Motor Vehicle Dealers Board

Being unable to concur in the conclusions reached by the majority, I must respectfully dissent.

First, I cannot concur in the finding that relator is entitled to a due process hearing. In my view, relator has no due process rights involved, being only the complainant of a complaint filed pursuant to R.C. 4517.33, alleging that a license had been improperly granted to another. As we have previously held, relator is not a party to the investigation contemplated by R.C.4517.33 and it necessarily follows that he had no due process rights with respect to said investigation, rather, his rights are merely statutory. Relator has a right to have his complaint acted upon by respondent in the proper manner regardless of what the outcome may be.

Second, I cannot concur in the determination of the majority that respondent board can delegate its responsibilities under R.C. 4517.33 to an administrative assistant employed by the Bureau of Motor Vehicles or to the registrar. R.C. 4517.31(B) relied upon by the majority, has no application. First, said statute does not provide for delegation of responsibilities but rather provides that:

"All clerical, inspection, and other agencies for the execution of the powers and duties vested in the board shall be in the bureau of motor vehicles, which shall provide the necessary employees * * *."

Here we are concerned with an investigation, not clerical or inspection functions. Application of the doctrines ejusdemgeneris as well as that of expressio unius est exclusio alterius clearly indicates that investigations are not included within the contemplation of R.C. 4517.31(B). Had the General Assembly intended to provide for delegation of the duty to investigate conferred upon the board by R.C. 4517.33 to the bureau under the provisions of R.C. 4517.31(B), the General Assembly would have and could have expressly so provided. Reading the two statutes inpari materia, the only conclusion that can reasonably be reached is that the board has no power to delegate its R.C. 4517.33 duty to investigate to some other person or agency. This does not necessarily mean that the board may not appoint someone to obtain or take evidence and report the same to the board so that the board may make the proper factual determination predicated upon such evidence.

Respondent contends that since R.C. 4517.33 uses the word "investigate" no hearing is contemplated. This is overly simplistic. Broadly speaking, "investigate" or "investigation" encompasses a multitude of acts from asking a simple question to a complete trial or adjudicatory hearing. In a broad sense, every hearing is an investigation, although not every investigation involves a hearing.

Webster's Third New International Dictionary defines "investigate" as "inquire into systematically" or "to subject to an official probe" or "to conduct an official inquiry." The same dictionary defines investigation as "the action or process of investigating" or "detailed examination" or "a searching inquiry." The American Heritage Dictionary defines investigate as "to observe or inquire into in detail." That dictionary defines investigation as "the act, process or an instance of investigating; inquiry." Further insight might be gained from the discussion of the word "hearing" in Black's Law Dictionary, which concludes with a statement:

"Hearings are extensively employed by both legislative and administrative agencies and can be adjudicative or merely investigatory. Adjudicative hearings can be appealed in a court of law. * * *"

Perhaps the important distinction is between investigatory and adjudicatory hearings. An investigation is not an adjudication but may lead to an adjudication. The word "investigation" is sometimes used in connection with judicial proceedings. See R.C.2945.40; State, ex rel. Smilack, v. Bushong (1952), 93 Ohio App. 201,212 [50 O.O. 449]. Accordingly, the meaning of investigate or investigation in this case depends upon usage thereof in R.C.4517.33 which provides in pertinent part:

"The motor vehicle dealers board shall hear appeals which may be taken from an order of the registrar of motor vehicles, refusing to issue a license. * * * In such appeals the board may make investigation to determine the correctness and legality of the order of the registrar.

"* * *

"The board * * * may, upon its own motion, and shall, upon the verified complaint in writing of any person, investigate the conduct of any licensee under Sections 4517.01 to 4517.45 of the Revised Code. The board shall suspend or revoke or notify the registrar to refuse to renew any dealer's, motor vehicle leasing dealer's, distributor's, auction owner's, or salesperson's license if any ground existed upon which the license might have been refused, or if a ground exists which would be cause for refusal to issue a license."

The board apparently was advised to bifurcate the matter and first to conduct an investigation and then to conduct an adjudicatory hearing if the investigation revealed probable cause for revocation of the license involved. There is nothing in the statute, nor in any rule adopted by the board, providing for such a bifurcated procedure. Rather, the mandate of R.C. 4517.33 is clear that "[t]he board * * * shall * * * investigate the conduct of any licensee" when a verified complaint is filed. The next sentence states what the action of the board shall be if the investigation reveals either that "any ground existed upon which license might have been refused, or if a ground exists which would be cause for refusal to issue a license." There is no provision for a two-step process. What is involved is that the board investigate and determine what action to take, that is, either dismiss the complaint, or suspend, revoke, or refuse to renew the license involved. This does not mandate a hearing at which relator may participate. See R.C. 9.84, 119.06, 119.07 and121.22(G). What is contemplated by these statutes is that the licensee be given an opportunity for an adjudicatory hearing if he so desires, before an order revoking or suspending a license is issued. Said statutes do not require that a complainant in the position of relator be given an opportunity for such a hearing.

The essence of the requirements of R.C. 4517.33 has been in the statutes of Ohio for some forty-five years, formerly as R.C.4517.12, even though the name of the board involved has changed. While the words "investigate" and "investigation" have been used in these statutes through all the years, it is clear that more than a cursory examination is involved. Respondent concedes at page 29 of its brief that: "* * * it is unquestioned that the board has the duty to conduct an investigation upon the filing of a verified complaint under R.C. 4517.33."

Respondent goes on to state, however, that the board lacks discretion "to determine which complaints, after investigation, merit the issuance of formal charges * * * and the holding of an adjudicatory hearing." Accepting respondent's propositions, it is still the duty of the board to investigate the charges made by the verified complaint. Here, the board did not investigate but instead delegated the responsibility. The usage of the word "investigate" is given clearer meaning when it is recognized that with respect to appeals the preceding paragraph of the same section provides that "the board may make investigation to determine the correctness and legality of the order." In this section, the investigation is for a purpose of making a determination. That determination must be made by the board. The board may well find after investigation that no ground existed upon which the license could have been refused but it is the responsibility of the board to make such determination predicated upon the investigation. Here the board has not done so. While the investigation may have been commenced, it is not complete.

While I dissent from the issuance of a writ of mandamus ordering respondent board to conduct a hearing upon the verified complaint, I would find that a limited writ of mandamus should issue requiring the board to comply with R.C. 4517.33 and investigate the conduct of the licensee involved because of the filing of the verified complaint by relator.