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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758
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IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO
CIVIL DIVISION
James D. O’Neal, et al.,
Plaintiffs, Case No. 18CV-758
~v- : JUDGE SERROTT
The State of Ohio, et al.,
Defendants.
DECISION AND ENTRY DENYING INTERVENING PLAINTIFF ROBERT VAN
HOOK’S MOTION FOR JUDGMENT ON THE PLEADINGS
Rendered this 3rd day of July, 2018
SERROTT, J.
This matter is before the Court on Intervening Plaintiff Robert Van Hook’s Motion for
Judgment on the Pleadings as to Count One only of his Intervening Complaint. The time for
response has not yet expired.
L RELEVANT FACTUAL ALLEGATIONS
Plaintiff is an inmate currently incarcerated on death row. His declaratory judgment action
against Defendants the State of Ohio and the Ohio Department of Rehabilitation and Correction
(individually “the State” and “ODRC”, collectively “Defendants”) challenges ODRC’s
implementation and use of departmental policy ODRC 01-COM-11, used to carry out death
sentences. Plaintiff alleges this is the twentieth version of Ohio’s Execution Protocol, all of which
were enacted by ODRC as policies and were not promulgated as administrative rules. (Complaint,
417, 18). The current version became effective on October 7, 2016. ODRC Director Gary Mohr
testified in another proceeding that he does not know why or how it was decided not to follow
Ohio’s administrative rule making requirements in enacting the past and current execution
protocols. (Id. at 419)Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758
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The stated purpose of ODRC 01-COM-11 “is to establish guidelines for carrying out a
court-ordered sentence of death.” (Intervening Complaint; Ex. 1). The policy expresses that it is
authorized and issued “in compliance with Ohio Revised Code 5120.01 which delegates to the
Director of the Department of Rehabilitation and Correction the authority to manage and direct the
total operations of the Department and to establish such rules and regulations as the Director
prescribes.” (Id.).
ODRC 01-COM-11 is a 21-page document setting forth detailed instructions, procedures,
and guidelines to be followed by ODRC staff and the designated “Auxiliary Team Member,”
“Critical Incident Debriefing Team,” “Drug Administrator,” “Execution Team,” “Medical Team
Member,” and “Religious Services Administrator,” in carrying out a court ordered death sentence
The policy sets forth a multitude of procedures, training, and events that are to occur 30 days, 14
days, 24 hours, and fifteen minutes prior to a scheduled execution as well as post-execution. The
policy contains extensive instructions regarding procurement, preparation, and administration of
the “Execution Drugs.” (Id.).
At issue is Plaintiffs First Claim for relief, where he alleges ODRC failed to comply with
the review and filing requirements of R.C. 111.15 in implementing ODRC 01-COM-11, and
therefore, that the policy is an invalidly adopted rule and is void. Defendants admit that that ODRC
01-COM-11 was not filed with the Secretary of State, the Director of the Legislative Service
Commission, or the Joint Committee on Agency Rule Review. (Defendants’ Answer, 39).
However, they deny that they were required to follow the procedures set forth in R.C. 111.15 in
enacting the policy. Plaintiff now moves for judgment on the pleadings on this claim, arguing that
as a matter of law, ODRC 01-COM-11 is a rule subject to the review and filing requirements of
RC. 111.15Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758
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I. STANDARD OF REVIEW
Judgment on the pleadings may be granted only where no material factual issues exist and
the moving party is entitled to judgment as a matter of law. State ex rel. Midwest Pride IV, Ine. v.
Pontious, 75 Ohio St.3d 565 (1996). The determination is restricted solely to the allegations of the
pleadings and the nonmoving party is entitled to have all material allegations in the complaint, with
all reasonable inferences to be drawn therefrom, construed in his favor as true. Burnside v.
Lumbach, 71 Ohio App.3d 399 (1991). Significantly, “[a] motion for judgment on the pleadings is
specifically intended for resolving questions of law.” 7ran v. State, 10th Dist. No. O9AP-587,
2009-Ohio-6784, 410.
Il. LAW AND ANALYIS
R.C. 111.15 mandates the procedure under which certain state agencies policies and
standards become rules. The statute defines a “rule” to include “any rule, regulation, bylaw, or
standard having a general and uniform operation adopted by an agency under the authority of the
laws governing the agency; any appendix to a rule; and any internal management rule.” R.C.
111.15(A)(1). An “internal management rule” is defined as “any rule, regulation, bylaw, or
standard governing the day-to-day staff procedures and operations within an agency.” R.C.
111.15(A)@G). The statute requires an internal management rule “to be filed in electronic form
with both the secretary of state and the director of the legislative service commission.” R.C
111.15(B)(1)(a). An internal management rule is expressly exempt from the joint committee on
agency rule review process. See R.C. 111.15(B)(1)(b) and (D)(4).
Plaintiff argues it is clear as a matter of law that ODRC 01-COM-11 is a “rule” as defined
by R.C. 111.15(A), and therefore, the policy was not properly promulgated and cannot be utilized
or enforced by Defendants. Plaintiff disagrees that the policy can be deemed an “internalFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758
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management rule” but argues that regardless, it would still have been required to be filed with both
the Secretary of State and the Director of the Legislative Service Commission.
Significantly, the issue is before the Court on a Motion for Judgment on the Pleadings. The
Court is being asked to decide, from the face of the policy alone, that, as a matter of law, it is a
“rule” subject to promulgation under R.C. 111.15. The Court cannot decide solely from the
pleadings that the policy is subject to R.C. 111.15 or the extent to which that statute may be
applicable.
R.C. 121.02 provides that ODRC is an administrative department of the state that is to be
administered by its director. “It is beyond doubt that a director of an executive agency possesses
executive power * * * at the direction of the Governor.” State ex rel. AFSCME v. Taft, 156 Ohio
App.3d 37, 2004-Ohio-493, 935. “However, a director may also exercise executive power through
authority delegated by the General Assembly.” Id. To that end, R.C. 5120.01 provides that “[t]he
director of rehabilitation and correction is the executive head of the department of rehabilitation
and correction. All duties conferred on the various divisions and institutions of the department by
law or by order of the director shall be performed under the rules and regulations that the director
prescribes and shall be under the director’s control.”
In Arbogast v. Peterson, 91 Ohio App.3d 22 (9th Dist. 1993), the appellate court
determined that a “no smoking policy” enacted by the chief executive officer of a state run
psychiatric facility was not a “rule” subject to promulgation under R.C. 111.15. The appellate court
noted that, under R.C. 5119.27, the chief executive officer was granted “entire executive charge
of the institution for which” she was appointed. They then reasoned: “It is our view that the
legislature did not intend for every directive of the managing officer to be subject to promulgation
procedures and, therefore, granted the managing officer executive charge of the institution.” WeFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758
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believe that the policy at issue here falls within that charge and is exempt from the promulgation
requirements of R.C. 111.15.” Id. at 25
Similarly, “R.C. Chapter 5120 appears to grant broad executive powers to the director of
ODRC. “ State ex rel. AFSCME y. Taft at J35. “As R.C. 5120.36 provides, [the director] is given
broad authority and discretion in operating the entire ODRC.” Id. at ]44. Thus, a genuine issue
exists as to whether implementation of ODRC 01-COM-11 falls within the Director’s broad
executive powers, granted to him by the General Assembly, and is therefore not subject to
promulgation under R.C. 111.15
Even if ODRC 01-COM-11 is a “rule” as defined by R.C. 111.15, the extent to which it is
subject to the procedures set forth therein cannot be decided from the pleadings. Whether the
policies, procedures, and guidelines can be characterized as “internal management rules” would
need some factual development. See e.g. State ex. rel. Savage v. Caltrider, 100 Ohio St.3d 363,
2003-Ohio-6806; State ex rel. Life of Maryland, Inc. v. Katz, 4 Ohio St.3d 140 (1983)(cases
analyzing the “internal management rule” under similarly worded R.C. 119.01(K) and finding
policies that were enacted to conserve agency resources or to improve customer service were
internal management rules not subject to promulgation procedures)
On its face, ODRC 01-COM-11 contains a multitude of standards and guidelines that
would appear to fall under the Director’s broad powers to control the operations of ODRC.
However, it does appear that portions of the policy might be subject to the formal process for the
promulgation of a rule pursuant to R.C. 111.15. But, the Court simply cannot resolve this issue as
a matter of law solely from the pleadings.
The Court notes that Intervening Plaintiffs Motion to Bifurcate his First Claim for Relief
from the remaining causes of action was granted because time was of the essence and on theFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758
0E222 - J98
possibility that the claim could be decided as a matter of law. Having had the opportunity to further
research the issues, as noted above, the claim cannot be resolved at this stage of the pleadings.
Accordingly, the Motion for Judgment on the Pleadings is DENIED. The Court’s ruling shall not
be construed as dispositive as to the merits of any of the claims.
IT IS SO ORDERED.
Electronically Signed By:
JUDGE MARK A. SERROTTFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758
0E222 - J99
Franklin County Court of Common Pleas
Date: 07-03-2018
Case Title: JAMES D ONEAL ET AL -VS- OHIO STATE ET AL
Case Number: 18CV000758
Type: ENTRY
It Is So Ordered.
Yotach Ce flere
/s/ Judge Mark A. Serrott
Electronically signed on 2018-Jul-03 page 7 of 70F222 xq franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758
Court Disposition
Case Number: 18CV000758
Case Style: JAMES D ONEAL ET AL -VS- OHIO STATE ET AL
Motion Tie Off Information:
1. Motion CMS Document Id: 18CV0007582018-07-0299970000
Document Title: 07-02-2018-MOTION TO RECONSIDER -
PLAINTIFF: JAMES D. ONEAL
Disposition: MOTION IS MOOT
2. Motion CMS Document Id: 18CV000758201 8-06-2999970000
Document Title: 06-29-2018-MOTION - NON-PARTY: ROBERT
VAN HOOK - TO EXPEDITE BRIEFING ON PENDING MOTIONS
Disposition: MOTION IS MOOT
3. Motion CMS Document Id: 18CV0007582018-06-2999980000
Document Title: 06-29-2018-MOTION FOR JUDGMENT ON
PLEADINGS - NON-PARTY: ROBERT VAN HOOK
Disposition: MOTION DENIED
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758 0E222 - J93 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO CIVIL DIVISION James D. O’Neal, et al., Plaintiffs, Case No. 18CV-758 ~v- : JUDGE SERROTT The State of Ohio, et al., Defendants. DECISION AND ENTRY DENYING INTERVENING PLAINTIFF ROBERT VAN HOOK’S MOTION FOR JUDGMENT ON THE PLEADINGS Rendered this 3rd day of July, 2018 SERROTT, J. This matter is before the Court on Intervening Plaintiff Robert Van Hook’s Motion for Judgment on the Pleadings as to Count One only of his Intervening Complaint. The time for response has not yet expired. L RELEVANT FACTUAL ALLEGATIONS Plaintiff is an inmate currently incarcerated on death row. His declaratory judgment action against Defendants the State of Ohio and the Ohio Department of Rehabilitation and Correction (individually “the State” and “ODRC”, collectively “Defendants”) challenges ODRC’s implementation and use of departmental policy ODRC 01-COM-11, used to carry out death sentences. Plaintiff alleges this is the twentieth version of Ohio’s Execution Protocol, all of which were enacted by ODRC as policies and were not promulgated as administrative rules. (Complaint, 417, 18). The current version became effective on October 7, 2016. ODRC Director Gary Mohr testified in another proceeding that he does not know why or how it was decided not to follow Ohio’s administrative rule making requirements in enacting the past and current execution protocols. (Id. at 419)Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758 0E222 - J94 The stated purpose of ODRC 01-COM-11 “is to establish guidelines for carrying out a court-ordered sentence of death.” (Intervening Complaint; Ex. 1). The policy expresses that it is authorized and issued “in compliance with Ohio Revised Code 5120.01 which delegates to the Director of the Department of Rehabilitation and Correction the authority to manage and direct the total operations of the Department and to establish such rules and regulations as the Director prescribes.” (Id.). ODRC 01-COM-11 is a 21-page document setting forth detailed instructions, procedures, and guidelines to be followed by ODRC staff and the designated “Auxiliary Team Member,” “Critical Incident Debriefing Team,” “Drug Administrator,” “Execution Team,” “Medical Team Member,” and “Religious Services Administrator,” in carrying out a court ordered death sentence The policy sets forth a multitude of procedures, training, and events that are to occur 30 days, 14 days, 24 hours, and fifteen minutes prior to a scheduled execution as well as post-execution. The policy contains extensive instructions regarding procurement, preparation, and administration of the “Execution Drugs.” (Id.). At issue is Plaintiffs First Claim for relief, where he alleges ODRC failed to comply with the review and filing requirements of R.C. 111.15 in implementing ODRC 01-COM-11, and therefore, that the policy is an invalidly adopted rule and is void. Defendants admit that that ODRC 01-COM-11 was not filed with the Secretary of State, the Director of the Legislative Service Commission, or the Joint Committee on Agency Rule Review. (Defendants’ Answer, 39). However, they deny that they were required to follow the procedures set forth in R.C. 111.15 in enacting the policy. Plaintiff now moves for judgment on the pleadings on this claim, arguing that as a matter of law, ODRC 01-COM-11 is a rule subject to the review and filing requirements of RC. 111.15Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758 0E222 - J95 I. STANDARD OF REVIEW Judgment on the pleadings may be granted only where no material factual issues exist and the moving party is entitled to judgment as a matter of law. State ex rel. Midwest Pride IV, Ine. v. Pontious, 75 Ohio St.3d 565 (1996). The determination is restricted solely to the allegations of the pleadings and the nonmoving party is entitled to have all material allegations in the complaint, with all reasonable inferences to be drawn therefrom, construed in his favor as true. Burnside v. Lumbach, 71 Ohio App.3d 399 (1991). Significantly, “[a] motion for judgment on the pleadings is specifically intended for resolving questions of law.” 7ran v. State, 10th Dist. No. O9AP-587, 2009-Ohio-6784, 410. Il. LAW AND ANALYIS R.C. 111.15 mandates the procedure under which certain state agencies policies and standards become rules. The statute defines a “rule” to include “any rule, regulation, bylaw, or standard having a general and uniform operation adopted by an agency under the authority of the laws governing the agency; any appendix to a rule; and any internal management rule.” R.C. 111.15(A)(1). An “internal management rule” is defined as “any rule, regulation, bylaw, or standard governing the day-to-day staff procedures and operations within an agency.” R.C. 111.15(A)@G). The statute requires an internal management rule “to be filed in electronic form with both the secretary of state and the director of the legislative service commission.” R.C 111.15(B)(1)(a). An internal management rule is expressly exempt from the joint committee on agency rule review process. See R.C. 111.15(B)(1)(b) and (D)(4). Plaintiff argues it is clear as a matter of law that ODRC 01-COM-11 is a “rule” as defined by R.C. 111.15(A), and therefore, the policy was not properly promulgated and cannot be utilized or enforced by Defendants. Plaintiff disagrees that the policy can be deemed an “internalFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758 0E222 - J96 management rule” but argues that regardless, it would still have been required to be filed with both the Secretary of State and the Director of the Legislative Service Commission. Significantly, the issue is before the Court on a Motion for Judgment on the Pleadings. The Court is being asked to decide, from the face of the policy alone, that, as a matter of law, it is a “rule” subject to promulgation under R.C. 111.15. The Court cannot decide solely from the pleadings that the policy is subject to R.C. 111.15 or the extent to which that statute may be applicable. R.C. 121.02 provides that ODRC is an administrative department of the state that is to be administered by its director. “It is beyond doubt that a director of an executive agency possesses executive power * * * at the direction of the Governor.” State ex rel. AFSCME v. Taft, 156 Ohio App.3d 37, 2004-Ohio-493, 935. “However, a director may also exercise executive power through authority delegated by the General Assembly.” Id. To that end, R.C. 5120.01 provides that “[t]he director of rehabilitation and correction is the executive head of the department of rehabilitation and correction. All duties conferred on the various divisions and institutions of the department by law or by order of the director shall be performed under the rules and regulations that the director prescribes and shall be under the director’s control.” In Arbogast v. Peterson, 91 Ohio App.3d 22 (9th Dist. 1993), the appellate court determined that a “no smoking policy” enacted by the chief executive officer of a state run psychiatric facility was not a “rule” subject to promulgation under R.C. 111.15. The appellate court noted that, under R.C. 5119.27, the chief executive officer was granted “entire executive charge of the institution for which” she was appointed. They then reasoned: “It is our view that the legislature did not intend for every directive of the managing officer to be subject to promulgation procedures and, therefore, granted the managing officer executive charge of the institution.” WeFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758 0E222 - J97 believe that the policy at issue here falls within that charge and is exempt from the promulgation requirements of R.C. 111.15.” Id. at 25 Similarly, “R.C. Chapter 5120 appears to grant broad executive powers to the director of ODRC. “ State ex rel. AFSCME y. Taft at J35. “As R.C. 5120.36 provides, [the director] is given broad authority and discretion in operating the entire ODRC.” Id. at ]44. Thus, a genuine issue exists as to whether implementation of ODRC 01-COM-11 falls within the Director’s broad executive powers, granted to him by the General Assembly, and is therefore not subject to promulgation under R.C. 111.15 Even if ODRC 01-COM-11 is a “rule” as defined by R.C. 111.15, the extent to which it is subject to the procedures set forth therein cannot be decided from the pleadings. Whether the policies, procedures, and guidelines can be characterized as “internal management rules” would need some factual development. See e.g. State ex. rel. Savage v. Caltrider, 100 Ohio St.3d 363, 2003-Ohio-6806; State ex rel. Life of Maryland, Inc. v. Katz, 4 Ohio St.3d 140 (1983)(cases analyzing the “internal management rule” under similarly worded R.C. 119.01(K) and finding policies that were enacted to conserve agency resources or to improve customer service were internal management rules not subject to promulgation procedures) On its face, ODRC 01-COM-11 contains a multitude of standards and guidelines that would appear to fall under the Director’s broad powers to control the operations of ODRC. However, it does appear that portions of the policy might be subject to the formal process for the promulgation of a rule pursuant to R.C. 111.15. But, the Court simply cannot resolve this issue as a matter of law solely from the pleadings. The Court notes that Intervening Plaintiffs Motion to Bifurcate his First Claim for Relief from the remaining causes of action was granted because time was of the essence and on theFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758 0E222 - J98 possibility that the claim could be decided as a matter of law. Having had the opportunity to further research the issues, as noted above, the claim cannot be resolved at this stage of the pleadings. Accordingly, the Motion for Judgment on the Pleadings is DENIED. The Court’s ruling shall not be construed as dispositive as to the merits of any of the claims. IT IS SO ORDERED. Electronically Signed By: JUDGE MARK A. SERROTTFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758 0E222 - J99 Franklin County Court of Common Pleas Date: 07-03-2018 Case Title: JAMES D ONEAL ET AL -VS- OHIO STATE ET AL Case Number: 18CV000758 Type: ENTRY It Is So Ordered. Yotach Ce flere /s/ Judge Mark A. Serrott Electronically signed on 2018-Jul-03 page 7 of 70F222 xq franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 03 10:00 AM-18CV000758 Court Disposition Case Number: 18CV000758 Case Style: JAMES D ONEAL ET AL -VS- OHIO STATE ET AL Motion Tie Off Information: 1. Motion CMS Document Id: 18CV0007582018-07-0299970000 Document Title: 07-02-2018-MOTION TO RECONSIDER - PLAINTIFF: JAMES D. ONEAL Disposition: MOTION IS MOOT 2. Motion CMS Document Id: 18CV000758201 8-06-2999970000 Document Title: 06-29-2018-MOTION - NON-PARTY: ROBERT VAN HOOK - TO EXPEDITE BRIEFING ON PENDING MOTIONS Disposition: MOTION IS MOOT 3. Motion CMS Document Id: 18CV0007582018-06-2999980000 Document Title: 06-29-2018-MOTION FOR JUDGMENT ON PLEADINGS - NON-PARTY: ROBERT VAN HOOK Disposition: MOTION DENIED