Update: On June 13, 2012, the Court dismissed this case as improvidentally accepted.
On May 9, 2012, the Supreme Court of Ohio heard oral argument in the case of Ronald L. Royse v. City of Dayton, et al. Royse was fired as a Dayton firefighter for failing a drug test. He challenged the admission of the test results at the administrative hearing before the Dayton Civil Service Board, which admitted the evidence and upheld the firing. The trial court upheld the decision of the Board , but the Second District Court of Appeals reversed, finding both that the Board had agreed to be governed by the Ohio Rules of Evidence and that the test was inadmissible hearsay. Read the oral argument preview of this case here.
At issue in this case is whether the Dayton Civil Service Board was bound to follow the Ohio Rules of Evidence in its hearing. At the time of Royse’s hearing, Board Rule 14 Section 5(A) stated that “the admission of evidence shall be governed by the rules of the Courts of Ohio in civil cases.” During the pendency of this appeal, however, Dayton changed its rule to make it explicit that the Board is not bound by the Ohio Rules of Evidence. Because of this change, there appeared to be strong sentiment among the justices to dismiss the case as moot or as improvidently allowed.
Dayton’s lawyer argued that the Court of Appeals decision would cause agencies and municipalities to have to strictly comply with the rules of evidence, contrary to longstanding precedent of the Court that the rules of evidence do not apply in administrative hearings. The proper interpretation of the Board’s then existing rule was that the Board did not adopt the Ohio Rules of Evidence, that the Hearing Officer had full authority to admit or exclude evidence, and that the drug test was properly admitted in this case, because it was uncontrovertibly reliable. The Court of Appeals clearly exceeded its scope of review in this case by engaging in factual and legal analysis.
Royse’s lawyer argued that the language of the Board’s then-existing rule must be interpreted as binding the Board to the Ohio Rules of Evidence, and since the Board chose that route, admitting the drug report without proper authentication was error. Further, Dayton waived the business records exception to the hearsay rule as a basis for admission of the drug test, because it didn’t raise this as basis for admission at either the trial court or appellate level. The Court of Appeals was correct both in its primary holding, that the Board had adopted the Rules of Evidence, and its secondary ruling, that the test results were improperly admitted under those rules. Because Dayton has now changed its rule, “this case is now an orphan.”
Well, isn’t the Problem Fixed Now?
A number of Justices, starting with Justice Stratton, asked this question.
Justice Cupp asked whether the issue was narrow, turning only on the unique language of the Dayton city charter.
Chief Justice O’Connor asked about the impact of the case now that the Civil Service Board has changed its policy with respect to the Rules of Evidence.
Justice O’Donnell asked if the Court finds that the rule change moots the question before it, what should the Court do with the case? Must it be remanded anyway for a determination of the competence of the evidence? Justice Cupp picked this up and asked if the question of the competency of the evidence was before the Court, and if so, what was the standard of review on that? He later asked if the Court were to agree that the rules of evidence did not strictly apply, wasn’t there still a question about the admissibility of the test? Must the case be sent back for such a determination?
Justice Lanzinger asked if there was any need for the Court to write on this case.
Are You Just After Terminating This Firefighter?
Chief Justice O’Connor asked Dayton’s counsel where things were to stand if the Court did find the Board wasn’t strictly bound by the rules of evidence. Was the city just after getting rid of this particular firefighter? Isn’t this just a unique situation where there is one employee the city is trying to terminate? No other administrative agency has adopted the language used here, she observed.
What Rule of Evidence is At Issue Here?
Justice Pfeifer asked, what other law, other than the Rules of Evidence, would permit the admissibility of the test results? (answer, framed inartfully–reliability)
Chief Justice O’Connor asked whether any common law supported the admission of reports containing scientific testing? She also asked if the report was stipulated to. (no). And was Royse’s lawyer saying the test results could not be construed as business records under any circumstances? (answer—that issue was waived by not raising it in the courts below). If Dayton had brought in a lab analyst to verify the results, then what? (answer, from Royse’s lawyer, we wouldn’t be here today).
But What About 2506.04 and the Scope of Review of Administrative Agencies?
Justice McGee Brown seemed the most concerned about the scope of appellate review here. She really pressed Royse’s lawyer with a series of questions about R.C.2506.04—could he really agree that the Board’s decision was “ unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record.” Even though the report was certified by a federal lab and otherwise had indicia of reliability?
How it Looks from the Bleachers
It looks like this case is going to get kicked.