State ex rel. Hughes v. Celeste

619 N.E.2d 412, 67 Ohio St. 3d 429

Opinions

Moyer, C.J.

Appellant asserts that R.C. 2961.01 is an unconstitutional encroachment upon the power of the Governor to issue pardons. Because we reverse the decision of the court of appeals on the basis that the Governor failed timely to appeal the original peremptory writ of mandamus, however, we do not reach this issue.

Under R.C. 2505.02, an order is final and appealable if it satisfies each of these three criteria: (1) it affects a substantial right; (2) it in effect determines the action; and (3) it prevents a judgment. Bellaire City Schools Bd. of Edn. v. Paxton (1979), 59 Ohio St.2d 65, 13 O.O.3d 58, 391 N.E.2d 1021.

A “substantial right” is a legal right enforced and protected by law. Noble v. Colwell (1989), 44 Ohio St.3d 92, 94, 540 N.E.2d 1381, 1383. Hughes’s asserted right, to be considered for a pardon, is constitutional in nature. We hold, therefore, that it is a “substantial right.”

To be a final appealable order, the grant of the peremptory writ in the instant case must also have determined the action and prevented a judgment. An order that accords the petitioner complete satisfaction of his claim for a peremptory writ of mandamus and prevents a favorable judgment for the respondent satisfies these requirements. See Harvey v. Cincinnati Civ. Serv. Comm. (1985), 27 Ohio App.3d 304, 27 OBR 360, 501 N.E.2d 39. The trial court’s grant of a peremptory writ compelled the Governor to consider Hughes’s request for a pardon without regard to the fact that he stood convicted of a federal, and not a state, felony. With that, Hughes had obtained all he asked for and the. Governor had no opportunity for a favorable judgment. Thus, the court’s issuance of a peremptory writ satisfied the criteria of R.C. 2505.02 and was a final appealable order.

The Governor is bound by the trial court’s initial peremptory writ if he failed timely to appeal it. App.R. 4(A) states that “[a] party shall file the notice of appeal required by App.R. 3 "within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure.” Thus, the Governor was obligated to file a notice of appeal within thirty days of the January 10, 1991 order granting the peremptory writ, unless service was not made within the three-day period in Civ.R. 58(B).

Civ.R. 58(B) directs the clerk of court to serve the parties with notice of a judgment, within three days of its entry upon the journal, in a manner prescribed by Civ.R. 5(B). The task of service of notice of a judgment thus normally befalls the court clerk. Civ.R. 58(B) further provides, however, that “[t]he failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided in App.R. 4(A).” App.R. 4(A), by its clear language as quoted above, tolls the time period for filing a notice of appeal only if service is not made within the three-day period of Civ.R. 58(B).

The record in this case shows that the court’s issuance of the peremptory writ of mandamus was journalized on January 10, 1991. The docket lacks an entry indicating that the court clerk served notice on the parties, nor does the record reveal any evidence of service. Such an apparent defect does not toll the running of the time for appeal, however, unless no service is effected within three days. App.R. 4(A); Civ.R. 58(B). This is not the case here. Civ.R. 5(B) provides that service may be made “by delivering a copy to the person to be served * * Appellant’s attorney served the Governor’s attorney, Assistant Attorney General Patrick A. Devine, with a copy of the peremptory writ on the day it was issued. Service was thus perfected in a manner consistent with Civ.R. 5(B).

We conclude that: (1) the first peremptory writ was issued and journalized on January 10,1991; (2) the Governor was served with the writ on the same day; (3) the writ was a final appealable order; (4) the time for appeal was never tolled; and (5) the Governor failed to appeal the writ within thirty days of its entry upon the court’s journal. The Governor is thus bound by the writ. The judgment of the court of appeals is reversed and the January 10, 1991 judgment of the trial court is reinstated.

Judgment reversed.

A.W. Sweeney, Wright, Resnick and F.E. Sweeney, JJ., concur. Douglas, J., concurs separately. Pfeifer. J., dissents.