Brookwood Presbyterian Church v. Ohio Department of Education , 127 Ohio St. 3d 469 ( 2010 )

[Cite as Brookwood Presbyterian Church v. Ohio Dept. of Edn., 127 Ohio St. 3d 469, 2010-
Ohio-5710.]
BROOKWOOD PRESBYTERIAN CHURCH, APPELLANT, v. OHIO DEPARTMENT OF
EDUCATION, APPELLEE.
[Cite as Brookwood Presbyterian Church v. Ohio Dept. of Edn.,
127 Ohio St. 3d 469, 2010-Ohio-5710.]
Charter schools — Eligibility for sponsorship — R.C. 3314.015(B)(3) and (D)
and 3314.02(C)(1)(f) — Determination that entity is not education-
oriented is appealable.
(No. 2009-1926 — Submitted June 9, 2010 — Decided November 30, 2010.)
APPEAL from the Court of Appeals for Franklin County,
No. 09AP-303, 2009-Ohio-4645.
__________________
PFEIFER, J.
{¶ 1} The issue before us is whether a determination by the Ohio
Department of Education pursuant to R.C. 3314.015(B)(3) that an entity is not
education-oriented, and thus is ineligible for sponsorship of community schools,
is appealable in accordance with R.C. 119.12. We hold that R.C. 3314.015(D)
grants such a right to review.
Factual and Procedural Background
{¶ 2} In November 2007, appellant, Brookwood Presbyterian Church
(“Brookwood”), submitted an application to appellee, Ohio Department of
Education (“ODE”), to sponsor community schools in Ohio. Brookwood sought
approval as a sponsor pursuant to R.C. 3314.02(C)(1)(f), which allows
“education-oriented,” tax-exempt entities under Section 501(c)(3) of the Internal
Revenue Code to sponsor community schools. Brookwood submitted information
regarding both itself and its parent organization, the national Presbyterian Church
USA. In March 2008, ODE determined that Brookwood is not eligible to sponsor
SUPREME COURT OF OHIO
community schools, concluding that it is not an “education-oriented” entity as
required by R.C. 3314.02(C)(1)(f). Brookwood sought reconsideration of its
eligibility to sponsor a community school, and on May 9, 2008, ODE again issued
its determination that Brookwood was not eligible. ODE stated, “Despite the
contributions of the Presbyterian Church USA, in your original application and in
the recently supplied supporting documentation, Brookwood Presbyterian Church
is the legal entity making application for sponsorship; not the Presbyterian Church
USA, nor any of the colleges associated with it. The 501 c(3) [sic] documentation
is for the national Presbyterian Church. Thus the national Presbyterian Church
should be the applicant, not Brookwood Presbyterian Church. The national
Presbyterian Church is clearly organized for religious purposes. Brookwood
Presbyterian Church, however, is the named applicant indicated in the original
sponsorship application and supported by conversations with John Taracko and
others in our office. Neither the national Presbyterian Church nor Brookwood
Presbyterian Church is eligible to apply to become a sponsor. Also please know
that no church has been approved as a sponsor.” (Emphasis sic.)
{¶ 3} Pursuant to R.C. 119.12, Brookwood filed an administrative appeal
in the Franklin County Common Pleas Court. ODE filed a motion to dismiss the
appeal for lack of subject-matter jurisdiction. The common pleas court granted
ODE’s motion to dismiss and dismissed the appeal for lack of subject-matter
jurisdiction.
{¶ 4} Brookwood appealed to the Tenth District Court of Appeals. On
September 8, 2009, the court of appeals affirmed the judgment of the common
pleas court. The court of appeals held that although R.C. 3314.015(D) states that
ODE decisions disapproving an entity for sponsorship of a community school are
appealable under R.C. 119.12, a more specific statute, R.C. 3314.015(B)(3),
provides that ODE’s determination that an entity is not education-oriented is
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“final.” The court concluded that the ODE’s determination was thus not subject
to appeal. 2009-Ohio-4645, ¶ 9-10.
{¶ 5} The cause is before this court upon the acceptance of a
discretionary appeal.
Law and Analysis
{¶ 6} R.C. 3301.13 states the general rule that the ODE “[i]n the exercise
of any of its functions or powers * * * shall be subject to Chapter 119. of the
Revised Code.” One of the statutory functions of ODE is to approve entities to be
sponsors of community schools. R.C. 3314.015(A)(2). R.C. 3314.02(C)(1) sets
forth six categories of entities that may become community-school sponsors, and
R.C. 3314.02(C)(1)(f) makes eligible for sponsorship any qualified tax-exempt
entity under Section 501(c)(3) of the Internal Revenue Code that (i) has been in
operation for at least five years prior to applying to be a community-school
sponsor, (ii) has assets of at least $500,000 and a demonstrated record of financial
responsibility, (iii) has been determined by ODE to be an education-oriented
entity under R.C. 3314.015(B)(3) and has a demonstrated record of successful
implementation of educational programs, and (iv) is not a community school.
R.C. 3314.02(C)(1)(f).
{¶ 7} Pursuant to R.C. 3314.015(B)(3), it is up to the ODE to determine,
pursuant to criteria adopted by rule, whether the tax-exempt entity applying for
sponsorship is education-oriented. R.C. 3314.015(B)(3) further provides, “Such
determination of the department is final.”
{¶ 8} ODE found that Brookwood is not an education-oriented entity as
required under R.C. 3314.02(C)(1)(f)(iii) and denied its application for
sponsorship. Brookwood seeks to appeal ODE’s determination pursuant to R.C.
3314.015(D). R.C. 3314.015(D) grants a right of appeal to entities disapproved
for community-school sponsorship: “The decision of the department to
disapprove an entity for sponsorship of a community school or to revoke approval
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for such sponsorship * * * may be appealed by the entity in accordance with
section 119.12 of the Revised Code.”
{¶ 9} The crux of this case is the interplay between R.C. 3314.015(B)(3)
and 3314.015(D). R.C. 3314.015(D) grants a right of appeal to entities
disapproved for community-school sponsorship; the question is whether R.C.
3314.015(B)(3) takes it away in certain circumstances. ODE asserts that its
determination that Brookwood is not education-oriented is final and therefore not
subject to appeal based upon R.C. 3314.015(B)(3).
{¶ 10} R.C. 1.51 provides the guiding principle in determining the
interaction between statutes: “If a general provision conflicts with a special or
local provision, they shall be construed, if possible, so that effect is given to
both.” We should not, however, seek out a conflict where none exists.
{¶ 11} Whether R.C. 3314.015(D) and 3314.015(B)(3) conflict depends
upon the meaning of “final” in regard to the board of education’s determination of
whether an entity is education-oriented under R.C. 3314.015(B)(3). Does “final”
mean that the administrative process is complete and the matter is ripe for appeal
to the common pleas court, or does “final” mean that the unsuccessful, would-be
sponsoring entity is consigned to an administrative abyss? We hold that R.C.
3314.015(B)(3) establishes that a determination that an entity is not education-
oriented is a “decision of the department to disapprove an entity for sponsorship
of a community school” under R.C. 3314.015(D) and therefore “may be appealed
by the entity in accordance with section 119.12 of the Revised Code.”
{¶ 12} R.C. 3314.015(D) grants the right to an R.C. 119.12 appeal to any
entity disapproved for sponsorship. R.C. 3314.015(B)(3) would conflict with
R.C. 3314.015(D) if it stated that the department’s determination whether an
entity is education-oriented was “not appealable.” It does not – it merely says that
the determination is “final.” We can look to our own jurisprudence and the Ohio
Constitution to determine the legal significance of the word “final.” In Walburn
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v. Dunlap, 121 Ohio St. 3d 373, 2009-Ohio-1221, 904 N.E.2d 863, at ¶ 13, this
court explained, “ ‘It is well-established that an order must be final before it can
be reviewed by an appellate court. If an order is not final, then an appellate court
has no jurisdiction.’ Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. [1989], 44 Ohio St.3d
[17] 20, 540 N.E.2d 266.” Section 3(B)(2), Article IV of the Ohio Constitution
grants courts of appeals appellate jurisdiction “as may be provided by law to
review and affirm, modify, or reverse final orders or actions of administrative
officers or agencies.” (Emphasis added.) Thus, in our system of law, “final” can
mean the opposite of “not appealable.”
{¶ 13} Had the General Assembly intended that the department's
determination of whether an entity is education-oriented not be subject to
administrative appeal, it could have done so by appropriate language, i.e., by
specifying that the department's decision is final and not subject to appeal. See
Riedel v. Consol. Rail Corp., 125 Ohio St. 3d 358, 2010-Ohio-1926, 928 N.E.2d
448, ¶ 9 (General Assembly would have used specific language if it had intended
R.C. 2307.93(C) to administratively dismiss an entire tort action instead of simply
a claim). In fact, the General Assembly has employed this language carefully to
specify when certain final actions are not appealable. See R.C. 2712.21 (decision
by common pleas court regarding appointment of arbitrator “is final and not
subject to appeal”), 3318.051(E) (decision of School Facilities Commission to
approve or not approve transfer of money under section “is final and not subject
to appeal”), and 5126.0214 (decision of director of developmental disabilities
whether to waive removal requirement “is final and not subject to appeal”). The
statute at issue here includes no comparable prohibition against appealability.
{¶ 14} Appellee points to appellate court decisions holding that a statute’s
characterization of an administrative body’s holding as final precludes review
through an R.C. 119.12 appeal. See, e.g., Carney v. School Emps. Retirement Sys.
Bd. (1987), 39 Ohio App. 3d 71, 528 N.E.2d 1322 (holding that a statute precluded
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an administrative appeal from a decision of the School Employees Retirement
System’s board because the decision was final according to statute); State ex rel.
Shumway v. Ohio State Teachers Retirement Bd. (1996), 114 Ohio App. 3d 280,
284, 683 N.E.2d 70, fn. 1 (holding that a statute precluded an administrative
appeal from a decision of the State Teachers Retirement System board because
the statute provided, “Any determination of the board under this division shall be
final”); Heartland Jockey Club, Ltd. v. Ohio State Racing Comm. (Aug. 3, 1999),
10th Dist. No. 98AP-1465, 1999 WL 566857 (holding that a statute that provides
that a decision of the State Racing Commission is “final” is not subject to appeal
through R.C. 119.12).
{¶ 15} The cases cited by ODE are inapposite. In those cases, the statutes
lacked what is present in this case – a specific, statutory grant of jurisdiction to
the trial court to review the decisions of the administrative body pursuant to R.C.
119.12. Here, that makes all the difference.
{¶ 16} Why did the General Assembly term the ODE’s determination of
whether an entity is education-oriented “final”? Ours is not to question why. But
of the four requirements set forth in R.C. 3314.02(C)(1)(f) for a tax-exempt entity
to qualify as a community-school sponsor, the board’s determination of the other
three qualifiers is mechanical: whether the entity “has been in operation for at
least five years prior to applying to be a community school sponsor,” R.C.
3314.02(C)(1)(f)(i); whether the entity “has assets of at least five hundred
thousand dollars and a demonstrated record of financial responsibility,” R.C.
3314.02(C)(1)(f)(ii); and whether the entity “is not a community school,” R.C.
3314.02(C)(1)(f)(iv). Those factors are black-and-white. Only the “education-
oriented” factor requires a nuanced approach requiring a subjective and
substantive judgment of the board. It is a determination different in character
from the other R.C. 3314.02(C)(1)(f) factors. And by calling that determination
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“final” but not calling it “not subject to appeal,” the General Assembly has
concluded that that judgment is susceptible of review pursuant to R.C. 119.12.
{¶ 17} The ODE asserts that there is a two-tiered process for approving
community-school sponsors, a preliminary judgment of eligibility followed by an
application review. The ODE argues that the application process is open only to
an “eligible entity” and that its R.C. 3314.015(B)(3) “education-oriented”
determination is part of determining eligibility to apply for sponsorship. The
ODE further argues that the R.C. 3314.015(D) right to appeal is granted only to
“eligible entities” disapproved for sponsorship. However, the statutes at issue set
up no such two-tiered process and do not use the term “eligible entity.” Although
the Administrative Code at times uses the term “eligible entity,” it does not use
that term in describing the right to appeal. Ohio Adm.Code 3301-102-03(G) uses
the language of the statute, referring to the right to appeal of “an entity,” not “an
eligible entity”:
{¶ 18} “The decision of the department to disapprove an entity for
sponsorship of a community school may be appealed by the entity in accordance
with section 119.12 of the Revised Code.”
{¶ 19} Thus, even if the ODE employs a two-tiered approval process for
community-school sponsorship, the right to appeal applies to an entity
disapproved at either tier.
{¶ 20} The determination of whether an entity is education-oriented is
substantive and important. R.C. 3314.015(B)(3) and 3314.015(D) should be
construed so as not to conflict, allowing an entity to appeal the board’s R.C.
3314.02(C)(1)(f)(iii) determination. The board’s power to determine whether an
entity is education-oriented is no trifle, and the grant of a right to appeal in R.C.
3314.015(D) is a check on that power.
{¶ 21} Accordingly, we reverse the judgment of the court of appeals and
remand the cause to the trial court.
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Judgment reversed
and cause remanded.
LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and LANZINGER, JJ.,
concur.
BROWN, C.J., and CUPP, J., dissent.
__________________
BROWN, C.J., dissenting.
{¶ 22} At the heart of this matter is the meaning of the word “final” in
R.C. 3314.015(B)(3). The majority has decided that use of the single word
“final” means final and appealable. Because I believe that the correct
interpretation of “final” as used in R.C. 3314.015(B)(3) is that the determination
of the Ohio Department of Education (“ODE”) whether an entity is education-
oriented is not subject to appeal under R.C. 119.12, I respectfully dissent.
{¶ 23} The primary assumption for the majority’s interpretation is that the
General Assembly used the word “final” as a legal term of art to mean a judgment
or order that is subject to appellate review. The majority further assumes that the
General Assembly would have stated explicitly that determinations of education-
oriented status are “final and not subject to appeal” if it had intended there to be
no appeal right under R.C. 3314.015(B)(3), particularly given that R.C.
3314.015(D) grants a general appeal right for ODE denials of applications to
sponsor community schools. The majority cites several statutory provisions in
which the General Assembly has provided explicitly that a decision is “final and
not subject to appeal.” See R.C. 2712.21, 3318.051(E), and 5126.0214.
{¶ 24} The majority’s assumptions are not borne out by other provisions
of the Revised Code. If the General Assembly so clearly intended the use of
“final” in R.C. 3314.015(B)(3) to mean final and appealable without actually
using those words, why is the Revised Code replete with instances in which the
General Assembly explicitly says both when it intends a decision to be reviewable
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on appeal? See R.C. 3769.0810(I) (decision by the State Racing Commission to
impose certain assessments is “final, subject to appeal under section 119.12 of the
Revised Code”), 3905.14(G) (decision by the superintendent of insurance to issue
a cease-and-desist order is final, and “[t]he final order may be appealed”),
3905.50(F) (“All final orders and decisions of the superintendent [of insurance]
are subject to judicial review”), 4141.26(F) (“The validity of any general order or
rule of the director [of job and family services] * * * or of any final order or
action of the unemployment compensation review commission respecting any
such general order or rule may be determined by the court of common pleas of
Franklin county”), 4517.58 (decision of the Motor Vehicle Dealers Board is “final
* * * except that any person adversely affected by the decision may appeal in the
manner provided by sections 119.01 to 119.13 of the Revised Code”), 4731.23(E)
(decision of the State Medical Board is “final * * * except that the certificate
holder may appeal in the manner provided by Chapter 119. of the Revised
Code”), 4763.11(F) (decision of Real Estate Appraiser Board “is final, subject to
review in the manner provided for in Chapter 119. of the Revised Code and
appeal to any court of common pleas”), and 5709.22(B) (“The final determination
[by the tax commissioner] is subject to appeal”); see also R.C. 5703.70(C)(3),
5711.31, and 5727.47(E). Would it not have been sufficient under the majority’s
interpretation for the General Assembly to provide simply that decisions under
these statutes are final?
{¶ 25} And what is this court to make of the host of other instances in
which the General Assembly has simply provided that a decision of an
administrative agency or other individual or entity is “final”? See R.C.
122.30(C)(1)(2), 122.42(A)(2), 122.74(A)(2), 124.03(A)(1), 145.01(R)(3),
173.19(F), 742.01(L)(3), 1513.05, 1515.02, 3302.10(J), 3306.34(I), 3307.01(B),
3307.74(E), 3309.01(A) and (B), 3309.31(E), 3311.06(G), 3314.08(O)(2)(d),
3769.02, 3769.089, 5126.281(A)(3), and 5505.01(S)(3). Did the General
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Assembly intend for all of these decisions to be final orders subject to review on
appeal even where the statutes make no mention of an appeal right?
{¶ 26} The lesson gained from a review of the varying uses of the word
“final” throughout the Revised Code is that the word is susceptible of more than
one meaning. Where statutory language is susceptible of more than one meaning,
the rules of statutory interpretation must be applied to determine the true intent of
the legislature. Wingate v. Hordge (1979), 60 Ohio St. 2d 55, 58, 14 O.O.3d 212,
396 N.E.2d 770. A guiding principle of statutory interpretation is that the statute
must be construed as a whole and each of its parts must be given effect so that
they are compatible with each other and related enactments. Humphrys v. Winous
Co. (1956), 165 Ohio St. 45, 49, 59 Ohio Op. 65, 133 N.E.2d 780.
{¶ 27} By interpreting the statutory scheme as establishing a two-stage
process for the review of applications to sponsor community schools, R.C.
3314.015(B)(3) can be construed in a way that gives each part of the statute effect
and renders the statute compatible with the other statutes governing these
sponsorship applications. R.C. 3314.02(C)(1) allows only six categories of
entities to sponsor community schools. Therefore, ODE must make a preliminary
determination regarding whether an entity falls within one of these categories and
is eligible to become a sponsor of a community school. ODE’s administrative
regulations specifically define an entity that falls within one of the categories
enumerated in R.C. 3314.02(C)(1) as an “eligible entity.” Ohio Adm.Code 3301-
102-02(H). For an entity claiming eligibility under R.C. 3314.02(C)(1)(f), this
preliminary determination of eligibility includes a determination, within the
discretion of ODE, whether the entity is education-oriented. R.C.
3314.02(C)(1)(f)(iii) and 3314.015(B)(3).
{¶ 28} Once there has been a preliminary determination that an entity is
an eligible entity, ODE must review the application in light of its rules regarding
the criteria, procedures, and deadlines for processing applications to become a
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sponsor of a community school. Ohio Adm.Code 3301-102-03. A decision
disapproving an application from an entity listed in R.C. 3314.02(C)(1) is subject
to appeal pursuant to R.C. 119.12. R.C. 3314.015(D); see also Ohio Adm.Code
3301-102-03(G).
{¶ 29} Most of the determinations regarding eligibility under R.C.
3314.02(C)(1) are mechanical and involve no exercise of discretion by ODE.
Certainly, an ODE determination that an applying entity fails to satisfy one of
these mechanical criteria would result in the end of consideration of that entity’s
application for community-school sponsorship, yet no one could reasonably
suggest that such a determination is based upon the merits of the application or
that such a determination is entitled to appellate review.
{¶ 30} A finding that an entity is education-oriented admittedly is
different from most of the other preliminary eligibility requirements.1 It contains
a subjective component and requires exercise of discretion by ODE. But this
determination is no more on the merits of the application than any other
determination made by ODE under R.C. 3314.02(C)(1). It is also the only one of
the criteria under subsection (C)(1)(f) that the General Assembly found necessary
to designate as “final.” This language suggests that the General Assembly
recognized the potential for attempted litigation on this issue, but intended to
foreclose such litigation because it is not a decision on the merits of the
application that would be subject to appeal in accordance with R.C. 3314.015(D).
1. R.C. 3314.02(C)(1)(e) provides that a community school may be sponsored by a designee of
the board of trustees of any of the 13 state universities or the board of trustees itself as long as a
mission of the proposed school will be “the practical demonstration of teaching methods,
educational technology, or other teaching practices that are included in the curriculum of the
university's teacher preparation program approved by the state board of education.” R.C.
3314.015(B)(2) provides that ODE shall determine, pursuant to criteria adopted by administrative
rule, “whether the mission proposed to be specified in the contract of a community school to be
sponsored by a state university board of trustees or the board's designee under division (C)(1)(e) of
section 3314.02 of the Revised Code complies with the requirements of that division.” Like a
determination that an entity is education-oriented, a determination that the mission complies with
R.C. 3314.02(C)(1)(e) is final.
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{¶ 31} Viewing the ODE’s review of a community-school sponsorship
application under R.C. 3314.015 as a two-stage process is further supported by
the last sentence of R.C. 3314.02(C)(1), which permits any entity that falls within
one of the six enumerated categories to enter into preliminary agreements with
any person or group of individuals proposing to establish a new community
school to finalize plans for the school, to establish a governing authority for the
school, and to negotiate contracts. R.C. 3314.02(C)(2). The ability of an eligible
entity to enter into preliminary agreements prior to a final decision on the merits
of its application to sponsor a community school presumes that there has been a
threshold determination by ODE that an entity falls within one of the R.C.
3314.02(C)(1) categories.
{¶ 32} The majority’s interpretation renders superfluous the language in
R.C. 3314.015(B)(3) that “[s]uch determination of the department is final.” If, as
the majority contends, a determination that an entity is not education-oriented is a
disapproval of the entity for sponsorship of a community school under R.C.
3314.015(D), why did the General Assembly specifically include language in
R.C. 3314.015(B)(3) that determinations that an entity is education-oriented are
final? Why is a determination regarding whether an entity is education-oriented
singled out in the statute?
{¶ 33} The majority claims that it is not our place to question why the
General Assembly chose to treat determinations of education-oriented status
differently from all other ODE decisions under R.C. 3314.02 and 3314.015. It is
precisely our place to do so. It is this court’s role to interpret Ohio statutes. That
interpretation can be aided by ascertaining the intent of the legislature where the
statutory language is susceptible of more than one meaning. In ascertaining
legislative intent, this court must presume that the language employed was
deliberate and meaningful.
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{¶ 34} R.C. 3314.015(D) generally grants a right to appeal ODE decisions
disapproving an entity for sponsorship of a community school. But R.C.
3314.015(B)(2) and (3) designate as final two types of decisions by ODE: the
approval of the mission of schools sponsored by state universities and the
determination of whether an entity is education-oriented. By specifying only those
determinations as final, the General Assembly clearly intended to convey that
these subjective decisions should be treated differently from other subjective
decisions made by ODE regarding community-school sponsorship. The only
reasonable explanation for the different treatment of these determinations is that
the General Assembly intended to provide exceptions to the general appeal right
granted in R.C. 3314.015(D) for certain decisions requiring ODE’s exercise of
discretion.
{¶ 35} Additionally, the majority’s rejection of the two-stage application
process yields strange results. The majority concludes that a decision finding that
an entity is not an entity specified in R.C. 3314.02(C)(1) is a decision
disapproving the entity for sponsorship of a community school, which would be
appealable under R.C. 3314.015(D). Yet the majority also appears to conclude
that an ODE determination that an entity does not fall within the group of entities
set forth in R.C. 3314.02(C)(1) for any reason other than that the entity is not
education-oriented under R.C. 3314.02(C)(1)(f)(iii) is not subject to appeal under
R.C. 3314.015(D). The majority has to read language into R.C. 3314.02(C)(1)(a)
through (e) and (f)(i), (ii), and (iv) to render these determinations not subject to
appeal under R.C. 3314.015(D) in order to justify its conclusion that an ODE
determination that an entity is not education-oriented is a decision disapproving
the entity for sponsorship of a community school.
{¶ 36} Based on the language of R.C. 3314.015 in its entirety and the
other statutory provisions regarding community schools, I believe that the General
Assembly intended ODE’s determination regarding whether an entity is
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education-oriented not to be subject to review under R.C. 119.12. It is clear to me
that the majority believes that an ODE determination that an entity is not
education-oriented ought to be subject to review on appeal and not consigned to
what it perceives to be “an administrative abyss.” Perhaps this would be the wiser
course. But the General Assembly has given us a statute that cannot be read
reasonably to permit this outcome without reading significant additional language
into the statutory scheme and rendering portions of the scheme ineffective or
redundant. It is not our place to substitute our views about how the process of
applying for community-school sponsorship ought to work for the procedure set
forth by the General Assembly. Accordingly, I dissent.
__________________
CUPP, J., dissenting.
{¶ 37} A plain and fair reading of the statute in question, I believe, is that
the decision of the Ohio Department of Education (“ODE”) regarding whether the
applicant, Brookwood Presbyterian Church (“Brookwood”), is an education-
oriented entity is final, in the plain and ordinary sense of the word “final,” as that
word is used in R.C. 3314.015(B)(3). “Final” in this context means “leaving no
further chance for action, discussion, or change; deciding; conclusive [a final
decree].” (Emphasis sic.) Webster’s New World Dictionary, Third College
Edition (1988) 506. Contrary to the interpretation of the majority, the legislature
has clearly expressed its intent that the decision of ODE on this issue may not be
appealed. I would affirm the judgment of the court of appeals.
{¶ 38} My conclusion is not based upon any public-policy considerations,
which are not within the province of the courts when the intent of the legislature
is clear. It is not for us to decide whether the General Assembly has made a wise
policy choice or an undesirable policy choice in entrusting this determination to
ODE.
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{¶ 39} I generally agree with most of Chief Justice Brown’s analysis, but I
would note also that appellant Brookwood, while not granted a statutory right of
appeal, is not without a remedy. An action in mandamus is available when a
statute makes an agency’s decision, such as the one here, “final” in that it may not
be appealed through the usual appeals process. See, e.g., Ohio Academy of
Nursing Homes v. Ohio Dept. of Job & Family Servs., 114 Ohio St. 3d 14, 2007-
Ohio-2620, 867 N.E.2d 400, ¶ 26 (“courts have determined that a writ of
mandamus provides an appropriate balance between the extreme of allowing no
challenge at all and the other alternative of completely ignoring the explicit
directive that an agency’s particular determination is not meant to be
appealable”).
{¶ 40} In fact, appellant has filed an action in mandamus with this court to
challenge ODE’s decision. The mandamus action has been stayed pending the
resolution of this case. Case No. 2009-2055, State ex rel. Brookwood
Presbyterian Church v. Ohio Dept. of Edn., motion for stay granted, 124 Ohio
St.3d 1479, 2010-Ohio-430, 921 N.E.2d 249. Appellant alleges in the complaint
in that case that it has operated an educational program since 2002 to provide
services to special-needs students who are not adequately served in traditional
education programs and that students are referred to appellant’s program by area
schools, public community schools, juvenile court personnel, counseling services,
and parents. Based on these allegations, appellant’s mandamus action may well
have merit. But that action in mandamus is the proper manner in which to address
this issue—not this appeal.
{¶ 41} Consequently, while I would hold that appellant does not have a
right of appeal due to the specific requirement of R.C. 3314.015(B)(3), I would
simultaneously lift this court’s stay of the presentation of evidence and the
briefing of appellant’s mandamus action, and proceed to a resolution of case No.
2009-2055. Because the majority decides otherwise, I must respectfully dissent.
15
SUPREME COURT OF OHIO
__________________
Buckley King, L.P.A., Donell Grubbs, and James S. Callender Jr., for
appellant.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
Elisabeth A. Long, Deputy Solicitor, and Mia Meucci, Assistant Solicitor, for
appellee.
______________________
16