O'Neal v. State (Slip Opinion) , 2021 Ohio 3663 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
O’Neal v. State, Slip Opinion No. 2021-Ohio-3663.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2021-OHIO-3663O’NEAL, APPELLANT, ET AL. v. THE STATE OF OHIO ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as O’Neal v. State, Slip Opinion No. 2021-Ohio-3663.]
Execution protocol— R.C. 111.15—Ohio’s execution protocol is not a rule having
a general and uniform operation—Court of appeals’ judgment affirmed.
Nos. 2020-0676 and 2020-0683—Submitted June 30, 2021—Decided October 19,
2021.
APPEALS from the Court of Appeals for Franklin County, Nos. 19AP-260 and
19AP-289, 2020-Ohio-506.
______________
FISCHER, J.
{¶ 1} The Department of Rehabilitation and Correction (“DRC”) is
responsible for carrying out death sentences in Ohio. See R.C. 2949.22(A) and (B).
In furtherance of its duty, DRC has adopted a written execution protocol: a
document that sets forth the specific process by which DRC personnel are to carry
out death sentences by lethal injection.
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{¶ 2} In these appeals, two condemned inmates contend that DRC may
adopt the execution protocol only by following the procedures for promulgating it
as an administrative rule in accordance with R.C. 111.15(B), and that until this is
done, the protocol is invalid and may not be used to carry out death sentences.
I. Facts and Procedural History
{¶ 3} Both appellants, Cleveland Jackson (case No. 2020-0676) and James
D. O’Neal (case No. 2020-0683) (collectively, “the inmates”) have been convicted
of aggravated murder and sentenced to death. See State v. Jackson, 107 Ohio St.3d
53, 2005-Ohio-5981, 836 N.E.2d 1173; State v. O’Neal, 87 Ohio St.3d 402, 721
N.E.2d 73 (2000). The appellees in both cases are the state of Ohio and DRC
(collectively, “the state”).
{¶ 4} DRC has maintained a written execution protocol since 1994. The
protocol has gone through 20 versions; the current one, designated DRC policy 01-
COM-11, took effect on October 7, 2016. See Ohio Department of Rehabilitation
and Correction, https://drc.ohio.gov/LinkClick.aspx?fileticket=-r0rnCS3AGc%
3d&portalid=0 (accessed Aug. 3, 2021) [https://perma.cc/N8UU-C9EF]. In
adopting 01-COM-11, DRC did not follow Ohio’s procedures for formal
rulemaking set forth in R.C. 111.15. Specifically, DRC “did not file the protocol
with any State entity.” O’Neal v. State, Franklin C.P. No. 18CVH-01-758, at 2
(Apr. 4, 2019).
{¶ 5} In 2018, O’Neal filed a complaint in the Franklin County Court of
Common Pleas seeking an injunction halting his execution and a declaration that
the protocol is invalid. The trial court subsequently permitted Jackson to intervene
in the lawsuit. The inmates and the state filed motions for summary judgment; the
trial court granted the state’s motion, denied those of the inmates, and entered
summary judgment in the state’s favor. O’Neal, Franklin C.P. No. 18CVH-01-758,
at 1. The court of appeals affirmed the trial court’s judgment. 2020-Ohio-506, 146
N.E.3d 605.
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{¶ 6} Jackson and O’Neal each filed discretionary appeals in this court. We
granted review of Jackson’s and O’Neal’s first propositions of law. See O’Neal v.
State, 160 Ohio St.3d 1418, 2020-Ohio-4811, 154 N.E.3d 97; O’Neal v. State, 160
Ohio St.3d 1418, 2020-Ohio-4811, 154 N.E.3d 98.
{¶ 7} Jackson’s first proposition of law is: “Ohio’s execution protocol 01-
COM-11 governs the day-to-day staff procedures and operations by which DRC
carries out a core statutory function—the execution of condemned persons—and
thus is a ‘rule’ subject to R.C. 111.15.” O’Neal’s first proposition of law is: “DRC’s
execution protocol 01-COM-11 is subject to the rule-making requirements of R.C.
111.15 and is invalid for failing to comply with the statute.”
II. Standing
{¶ 8} Before examining those issues, we will consider the state’s challenge
to the inmates’ standing.
{¶ 9} The state contends that the inmates lack standing to sue over the
validity of DRC’s execution protocol. Standing is a “ ‘jurisdictional requirement’
that must be met for a party to maintain a lawsuit.” Ohioans for Concealed Carry,
Inc. v. Columbus, 164 Ohio St.3d 291, 2020-Ohio-6724, 172 N.E.3d 935, ¶ 42,
quoting State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio
St.2d 176, 179, 298 N.E.2d 515 (1973).
{¶ 10} “[S]tanding depends on whether the plaintiffs have alleged such a
personal stake in the outcome of the controversy that they are entitled to have a
court hear their case.” ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520,
2014-Ohio-2382, 13 N.E.3d 1101, ¶ 7. Standing has three elements: injury,
causation, and redressability. Moore v. Middletown, 133 Ohio St.3d 55, 2012-
Ohio-3897, 975 N.E.3d 977, ¶ 22. Thus, to establish standing, the inmates must
show that they suffered an injury that is fairly traceable to the state’s allegedly
illegal conduct and that their injury is likely to be redressed by the relief they are
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requesting. See id. The state contends that the inmates’ standing fails on the third
element: redressability.
{¶ 11} As the inmates point out, they themselves are the objects of the
injurious state action: their executions will be carried out under an assertedly
invalid protocol. That makes their claim to standing a strong one.
When the suit is one challenging the legality of government
action or inaction, the nature and extent of facts that must be averred
(at the summary judgment stage) or proved (at the trial stage) in
order to establish standing depends considerably upon whether the
plaintiff is himself an object of the action (or forgone action) at
issue. If he is, there is ordinarily little question that the action or
inaction has caused him injury, and that a judgment preventing or
requiring the action will redress it.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-562, 112 S.Ct. 2130, 119 L.Ed.2d
351 (1992).
{¶ 12} However, the state points out that an alleged injury is not redressable
when a ruling in the plaintiff’s favor would leave the plaintiff subject to the same
injury from which he seeks relief. See State ex rel. Walgate v. Kasich, 147 Ohio
St.3d 1, 2016-Ohio-1176, 59 N.E.3d 1240, ¶ 27 (lead opinion) (holding that an
injury was nonredressable because “[e]ven if the state’s actions were nullified,” the
alleged injury “would continue to exist”).
{¶ 13} The state contends that the injury alleged by the inmates is that they
“do not want to be executed in the manner provided for by the protocol.” According
to the state, because DRC has statutory authority to carry out death sentences and
no statute requires that it adopt an execution protocol, winning this case would not
actually benefit the inmates. Hence, the state argues, if the execution protocol, 01-
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COM-11, is declared invalid, DRC could simply execute the inmates pursuant to
its statutory authority “in precisely the same manner provided for by the protocol.”
{¶ 14} But “standing turns on the nature and source of the claim asserted by
the plaintiffs.” Moore, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.3d 977, at
¶ 23. And the state’s argument, we think, misconceives the nature of the inmates’
claim.
{¶ 15} Contrary to the state’s assertion, the injury alleged in this case is not
that the inmates are to be executed in any particular fashion. It is alleged that they
are to be executed in accordance with a protocol that is legally invalid because it
was not promulgated as an administrative rule under R.C. 111.15(B). That alleged
injury could be redressed by a declaration that the protocol is invalid.
{¶ 16} Although the state does not raise the point, we acknowledge that a
declaratory-judgment action is not a proper means to litigate some of the challenges
to the protocol’s validity. Indeed, we have held: “There is no state postconviction
relief or other state-law mode of action to litigate the issue of whether a specific
lethal-injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct.
1250, 170 L.Ed.2d 420 (2008), or under Ohio law.” Scott v. Houk, 127 Ohio St.3d
317, 2010-Ohio-5805, 939 N.E.2d 835, ¶ 4. But “Scott does not foreclose every
possible avenue for raising a protocol challenge in Ohio courts.” State v. Belton,
149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 75. The instant case does
not involve a state or federal constitutional challenge to the protocol, and Scott does
not address whether a state-law cause of action, such as declaratory judgment, may
be used to challenge an execution protocol on nonconstitutional grounds.
{¶ 17} In any event, the availability of declaratory judgment goes to the
merits of the action; it does not affect the inmates’ standing. The fact remains that
should the inmates obtain the judgment they seek, it will provide them with redress,
which disposes of the state’s redressability argument.
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{¶ 18} We also reject the state’s contention that because no Ohio statute
requires DRC to adopt an execution protocol, it may execute condemned inmates
without a protocol yet in the same manner that is specified in the protocol. This
argument draws an empty distinction between the protocol and the procedures
specified in the protocol. Those procedures are the protocol, and in following them,
DRC would be following the protocol.
{¶ 19} In any event, DRC’s execution procedures have been the subject of
frequent Eighth Amendment litigation. In that litigation, federal courts have
required DRC not only to have an execution protocol, but to follow it consistently.
Indeed, federal courts have stayed scheduled executions because of DRC’s failures
to consistently follow its own protocol. See, e.g., Reynolds v. Strickland, 583 F.3d
956, 957 (6th Cir.2009) (staying execution in light of serious questions about
“whether Ohio is fully and competently adhering to the Ohio lethal injection
protocol”); In re Ohio Execution Protocol Litigation, 671 F.3d 601, 602 (6th
Cir.2012) (denying the state of Ohio’s motion to vacate the district court’s order
staying an execution due to the state’s “persistent failure or refusal * * * to follow
its own written execution protocol”). Given this history, we do not see how DRC
would be able to execute condemned inmates without an execution protocol.
{¶ 20} We conclude that the injury alleged by the inmates is redressable and
that they “have alleged such a personal stake in the outcome of the controversy that
they are entitled to have a court hear their case.” ProgressOhio.org, 139 Ohio St.3d
520, 2014-Ohio-2382, 13 N.E.3d 1101, at ¶ 7. The inmates have standing to
challenge the legality of the execution protocol. Accordingly, we now proceed to
address the merits of their arguments.
III. Merits
{¶ 21} In most circumstances, R.C. 111.15 creates a procedure that state
agencies must adhere to when promulgating rules. Of specific relevance to this
case, R.C. 111.15(B)(1)(a) provides that a rule adopted pursuant to R.C. 111.15
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may take effect only after the adopting agency has filed it with the secretary of state
and the director of the Ohio Legislative Service Commission (“LSC”):
Any rule * * * adopted by any agency pursuant to this
section shall be effective on the tenth day after the day on which the
rule in final form and in compliance with division (B)(3) of this
section is filed as follows:
(a) The rule shall be filed in electronic form with both the
secretary of state and the director of the legislative service
commission * * *.
The rule must also be filed with the Joint Committee on Agency Rule Review
(“JCARR”), R.C. 111.15(B)(1)(b), unless it is exempt from legislative review
under R.C. 111.15(D)(1) through (7).
{¶ 22} R.C. 111.15(B)(1) applies to “any rule” adopted by “any agency.”
R.C. 111.15(A) supplies definitions of both “rule” and “agency”:
(A) As used in this section:
(1) “Rule” includes 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. “Rule” does not include
* * * any order respecting the duties of employees * * *.
(2) “Agency” means any governmental entity of the state and
includes * * * any * * * department * * *.
(3) “Internal management rule” means any rule, regulation,
bylaw, or standard governing the day-to-day staff procedures and
operations within an agency.
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{¶ 23} The parties do not dispute that DRC is an “agency” within the
meaning of R.C. 111.15(A)(2) or that the protocol was adopted by DRC under the
authority of the laws governing DRC. Thus, the dispositive issue is whether the
execution protocol constitutes a “rule” as defined in R.C. 111.15(A)(1).
{¶ 24} If the execution protocol is either a “rule, regulation, bylaw, or
standard having a general and uniform operation” or an “internal-management
rule,” then it fits under the definition of a “rule” under R.C. 111.15(A)(1). If the
protocol does not fit into either one of those categories or if it is an “order respecting
the duties of employees,” id., then it is not a “rule” and is therefore not subject to
the statute’s rule-filing requirements.
{¶ 25} The inmates contend that DRC should have filed the execution
protocol with the secretary of state and LSC’s director because the protocol is a
“rule * * * having a general and uniform operation” in accordance with R.C.
111.15(A)(1) or, alternatively, because it is an internal-management rule as defined
by R.C. 111.15(A)(3). We will examine both contentions.
A. Is the execution protocol a rule having a general and uniform operation?
{¶ 26} There is little authority interpreting the meaning of “rule” in R.C.
111.15(A)(1). However, Ohio’s Administrative Procedure Act, R.C. Chapter 119,
defines the word “rule” with similar language: “any rule, regulation, or standard,
having a general and uniform operation, adopted, promulgated, and enforced by
any agency under the authority of the laws governing such agency.” R.C.
119.01(C). We will therefore look to our precedents applying R.C. 119.01(C) to
help us construe R.C. 111.15(A).
{¶ 27} In applying the definition of “rule” in R.C. 119.01(C), we have
distinguished between an administrative action that establishes a policy or standard
and one that merely implements or interprets a rule or statute that already exists.
See Adams v. Testa, 152 Ohio St.3d 207, 2017-Ohio-8853, 94 N.E.3d 539, ¶ 37;
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State ex rel. Saunders v. Indus. Comm., 101 Ohio St.3d 125, 2004-Ohio-339, 802
N.E.2d 650, ¶ 27. An action that establishes a new policy or standard is a rule under
R.C. 119.01(C); one that implements or interprets a pre-existing rule or statute is
not. See Saunders at ¶ 27 (“The pivotal issue in determining the effect of a
document is whether it enlarges the scope of the rule or statute from which it derives
rather than simply interprets it”).
{¶ 28} Indeed, in Ohio Nurses Assn., Inc. v. State Bd. of Nursing Edn. &
Nurse Registration, 44 Ohio St.3d 73, 540 N.E.2d 1354 (1989), we held that the
Ohio State Board of Nursing Education and Nurse Registration’s decision, which
was issued in a “position paper,” to greatly expand the authority of licensed
practical nurses (“LPNs”) to administer intravenous fluids fell within the statutory
definition of a “rule.” The position paper “enlarge[d] the scope of practice for
LPNs” beyond what any existing statute or rule authorized. Id. at 75. Hence, “the
[position] paper [did] not purport merely to interpret an extant statute or rule, but
rather to establish a new rule, standard or regulation regarding LPN practice.” Id.{¶ 29} Likewise, in Fairfield Cty. Bd. of Commrs. v. Nally, 143 Ohio St.3d
93, 2015-Ohio-991, 34 N.E.3d 873, we held that a limitation on phosphorus
discharge imposed by the Ohio Environmental Protection Agency was a “standard”
having a “general and uniform operation” and was therefore a “rule” that had to be
filed in accordance with the Administrative Procedure Act. We explained that the
discharge limit “prescribe[d] a legal standard that did not previously exist,” id. at
¶ 29, and “create[d] new legal obligations,” id. at ¶ 32. Moreover, it “applie[d] to
a large segment of the public rather than a narrow group” and was thus “generally
and uniformly applicable.” Id. at ¶ 30.
{¶ 30} By contrast, “[d]ocuments that explain, rather than expand, fall
outside [the definition of ‘rule’ contained in] R.C. Chapter 119.” Saunders, 101
Ohio St.3d 125, 2004-Ohio-339, 802 N.E.2d 650, at ¶ 33. To illustrate this
principle, Saunders examined Princeton City School Dist. Bd. of Edn. v. Ohio State
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Bd. of Edn., 96 Ohio App.3d 558, 645 N.E.2d 773 (1st Dist.1994). Princeton
involved a legislatively created statewide computer-information network for public
schools. The state board of education established “guidelines” for the compilation,
collection, and reporting of data in conjunction with the network. The First District
held in Princeton that the guidelines were not rules and did not have to be formally
promulgated in compliance with the Administrative Procedure Act because
[t]he guidelines * * * are a kind of instruction manual showing
methods and alternatives to identify, compile, collect and report the
data. * * * [T]hese guidelines merely control the procedure by
which the duties in the statute and rule must be performed * * *.
Princeton at 563-564.
{¶ 31} The execution protocol in 01-COM-11 has little in common with the
kind of edicts that we have found that fit within the statutory definition of “rule.”
It creates neither a “legal standard,” Nally at ¶ 29, nor a “legal obligation[],” id. at
¶ 32. Unlike the position paper in Ohio Nurses, 01-COM-11 does not expand
anyone’s functions or abilities; the obligation to execute death sentences by lethal
injection is already conferred on DRC by statute, and the protocol “is merely the
implementation * * * of a rule already in existence.” Adams, 152 Ohio St.3d 207,
2017-Ohio-8853, 94 N.E.3d 539, at ¶ 37. And unlike the discharge limit in Nally,
the execution protocol applies only to “a narrow group” rather than to “a large
segment of the public,” Nally at ¶ 30; thus, while it is intended to operate uniformly
to “all individuals involved in carrying out a court-ordered death sentence,” 01-
COM-11 at 1, it does not have a “general and uniform operation [emphasis added],”
R.C. 119.01(C).
{¶ 32} Like the guidelines at issue in Princeton, the execution protocol
described in 01-COM-11 amounts to an instruction manual: it is a 21-page, step-
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by-step, minutely detailed directive explaining precisely how DRC personnel are
to administer a lethal injection to a condemned inmate, from start to finish.
{¶ 33} The execution protocol in 01-COM-11 provides for (1) the selection
of specific drugs to be used in an execution, (2) ordering and testing the drugs
before an execution, (3) securely storing and handling the drugs before and after an
execution, (4) physical- and mental-health evaluations of the prisoner, (5) training
and rehearsal by the personnel involved in an execution, (6) how and when to
inventory the prisoner’s effects, (7) allowing visitors, (8) the prisoner’s “special
meal,” id. at 11, (9) reading the death warrant aloud, and (10) the prisoner’s last
words. The protocol lays out what is to take place 30 days, 14 days, and 24 hours
before a scheduled execution and on the day of the execution.
{¶ 34} The step-by-step procedure for preparing the lethal-injection drugs
consists of two and a half pages. The procedure for the execution itself, i.e., the
establishment of intravenous sites, insertion of the needles, consciousness checks,
and administration of the drugs, consists of five pages. The protocol precludes
deviation from some provisions and specifies that only DRC’s director may
authorize deviations from others. It also requires that certain actions be
documented. Finally, it provides for post-execution debriefings and performance
reviews of the execution team. Specific duties are assigned to DRC’s director, the
warden, the execution team, the execution-team leader, the medical team, the drug
administrators, and others.
{¶ 35} In short, 01-COM-11 “control[s] the procedure by which the duties
[imposed] in the statute * * * must be performed.” See Princeton, 96 Ohio App.3d
at 564, 645 N.E.2d 773. Accordingly, we hold that the execution protocol is not a
“rule * * * having a general and uniform operation,” R.C. 111.15(A)(1).
{¶ 36} The inmates support their argument that 01-COM-11 is a rule and
that “[t]he failure to comply with R.C. 111.15 filing requirements invalidates the
proposed rule” with two cases that applied a former version of R.C. 111.15: State
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ex rel. N. Canton Exempted Village School Dist. Bd. of Edn. v. Holt, 174 Ohio St.
55, 186 N.E.2d 862 (1962), and State ex rel. Ryan v. State Teachers Retirement
Sys., 71 Ohio St.3d 362, 643 N.E.2d 1122 (1994). Both Holt and Ryan held that
certain resolutions adopted by the School Employees Retirement Board were
invalid and could not be implemented because those resolutions had not been filed
with the secretary of state pursuant to the versions of R.C. 111.15 in effect at that
time. Holt at 56-57 (applying Am.Sub.H.B. No. 317, 136 Ohio Laws, Part II, 2399,
2400-2401); Ryan at 365-366 (applying Sub.S.B. No. 359, 144 Ohio Laws, Part II,
2391, 2398-2401).
{¶ 37} But it is the current version of R.C. 111.15 that concerns us today,
and Holt and Ryan provide little help in construing it. Neither Holt nor Ryan
applied the current definition of “rule” in R.C. 111.15(A)(1), because the
resolutions at issue in those cases were adopted before the General Assembly
enacted that definition. In fact, the versions of R.C. 111.15 that we applied in Holt
and Ryan did not define the word “rule.” See Ryan at 366 (discussing and applying
Holt). Rather, in Ryan, the court used Black’s Law Dictionary to define the word
“rule”: “A ‘rule’ is ‘[a]n established standard, guide, or regulation’ and a
‘regulation’ is a ‘[r]ule of order prescribed by superior or competent authority
relating to action of those under its control.’ ” (Brackets added in Ryan.) Ryan at
366, quoting Black’s Law Dictionary 1331, 1286 (6th Ed.1990). This definition is
significantly broader than the definition adopted by the General Assembly.
Therefore, we do not find the analyses in Holt or Ryan persuasive.
{¶ 38} In support of his argument that the execution protocol in 01-COM-
11 is a rule having a general and uniform operation, Jackson also relies heavily on
two cases construing R.C. 111.15: Ohio Assn. of Cty. Bds. of Mental Retardation
& Dev. Disabilities v. Pub. Emps. Retirement Sys., 61 Ohio Misc.2d 836, 585
N.E.2d 597 (C.P.1990) (“Assn. of MRDD Bds.”), and B&T Express, Inc. v. Pub.
Util. Comm., 145 Ohio App.3d 656, 763 N.E.2d 1241 (10th Dist.2001).
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{¶ 39} In Assn. of MRDD Bds., the common pleas court interpreted the
phrase “general and uniform operation” from R.C. 111.15 as follows: “The statute
does not require that the rule be broadly applied statewide. It is only required that
the proposed rule be uniformly applied by the promulgating agency to those
affected by the rule.” (Emphasis added.) Assn. of MRDD Bds. at 842-843; accord
B&T Express at 665.
{¶ 40} But we have not adopted any such interpretation of the phrase
“general and uniform operation.” To the contrary, in Nally, one of the factors we
considered in determining whether a rule was generally and uniformly applicable
was whether it “applie[d] to a large segment of the public rather than a narrow
group.” Id., 143 Ohio St.3d 93, 2015-Ohio-991, 34 N.E.3d 873, at ¶ 30.
Accordingly, we decline to adopt the reading of R.C. 111.15(A)(1) that was set
forth in Assn. of MRDD Bds.
B. Is the execution protocol an internal-management rule?
{¶ 41} Even if the execution protocol is not a “rule * * * having a general
and uniform operation,” R.C. 111.15(A)(1), it still must be filed in accordance with
the statute if it is an internal-management rule, because R.C. 111.15(A)(1) includes
internal-management rules within the definition of the word “rule.”
{¶ 42} R.C. 111.15(A)(3) defines the term “internal-management rule” as
“any rule, regulation, bylaw, or standard governing the day-to-day staff procedures
and operations within an agency.” In this case, the trial court concluded that the
protocol is an internal-management rule because it “governs the operations of”
DRC.1 But the Tenth District held otherwise:
1. The trial court nonetheless concluded that the protocol was not a rule, because that court
mistakenly thought that internal-management rules were exempt from the rule-filing requirements
of R.C. 111.15(B). In fact, R.C. 111.15(A)(1)’s definition of “rule” includes internal-management
rules. Internal-management rules are exempt from filing with JCARR, see R.C. 111.15(D)(4), but
must still be filed with the secretary of state and LSC. Compare R.C. 119.01(C) (defining “rule” to
generally exclude internal-management rules).
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01-COM-11 is not “an internal management rule” as defined in R.C.
111.15(A)(3), as it does not govern “the day-to-day staff procedures
and operations within an agency.” Executions are not day-to-day
procedures or operations. They do not occur on a regular or frequent
basis, nor are they routine.
2020-Ohio-506, 146 N.E.3d 605, at ¶ 19.
{¶ 43} The inmates argue that the court of appeals was wrong to hold that
an internal-management rule must govern operations that occur daily.2 According
to the inmates, the “only requirement is that the Agency intend[s] to apply the
standard uniformly in those circumstances where the standard applies at all.”
{¶ 44} However, this argument incorrectly conflates rules “having a general
and uniform operation” with internal-management rules. Under R.C. 111.15(A),
these are two distinct categories and both must comply with the statute to take
effect. Thus, whether a directive is to be applied uniformly is irrelevant to whether
it is an internal-management rule; to qualify as an internal-management rule, the
directive must satisfy the definition contained in R.C. 111.15(A)(3).
{¶ 45} The inmates cite Assn. of MRDD Bds., 61 Ohio Misc.2d 836, 585
N.E.2d 597, and B&T Express, 145 Ohio App.3d 656, 763 N.E.2d 1241, in support
of their argument that the protocol is an internal-management rule. But neither case
supports their argument, because neither case addressed whether the administrative
edict before the court fits the statutory definition of an internal-management rule.
Instead, as we discuss above, both cases held that the edicts in question had a
2. The inmates misstate the Tenth District’s conclusion here, as it did not limit internal-management
rules to procedures and operations that occur “daily,” but those that are “regular,” “frequent,” and
“routine.” 2020-Ohio-506, 146 N.E.3d 605, at ¶ 19.
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general and uniform operation. See Assn. of MRDD Bds. at 842-843; B&T Express
at 665.
{¶ 46} The court of appeals had it right. “Day-to-day” is defined as “a day
at a time in unbroken succession; daily.” Webster’s Third New International
Dictionary 578 (1993).3 See also Hall v. Progress Pig, Inc., 259 Neb. 407, 414,
610 N.W.2d 420 (2000), quoting Webster’s Encyclopedic Unabridged Dictionary
of the English Language 370 (1989) (“ ‘[d]ay-to-day’ ” means “ ‘occurring each
day; daily’ ”); Random House Dictionary of the English Language 510 (2d
Ed.1987).
{¶ 47} As used in R.C. 111.15(A)(3), “day-to-day” is perhaps best
understood as not literally meaning daily operations and procedures. However, the
court of appeals’ reading of “day-to-day” as “frequent” or “routine,” 2020-Ohio-
506, 146 N.E.3d 605, at ¶ 19, preserves the core of the phrase’s meaning. And
other courts have similarly construed “day-to-day.” See Hall at 414 (“day-to-day
labor and management” of a farm or ranch means “those activities that occur as a
routine part of the farm or ranch operation”); Enix v. Burrell, 572 F.Supp. 1364,
1369-1370 (S.D.Ohio 1983) (“day-to-day management” of a pension plan includes
“ordinary administration” but not “extraordinary” matters). Indeed, the inmates’
argument simply misconstrues the statutory language of R.C. 111.15.
{¶ 48} And as the court of appeals said, executions are not routine
occurrences. Since 1999, Ohio has carried out or attempted to carry out 58 death
sentences. See Ohio Attorney General, 2020 Capital Crimes Report, at 34
(identifying 56 executions), https://www.ohioattorneygeneral.gov/
2020CapitalCrimesReport (accessed Aug. 12, 2021) [https://perma.cc/7CXT-
ECK7]; Broom v. Shoop, 963 F.3d 500, 504-506, 513 (6th Cir.2020) (discussing
3. “Day-to-day” may also mean “a day at a time without provision for continuance thereafter,” as
in “life * * * lived on an aimless, day-to-day basis.” Webster’s Encyclopedic Dictionary of the
English Language 370 (1989). But it is hard to see how that definition could apply to “staff
procedures and operations within an agency,” R.C. 111.15(A)(3).
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the two unsuccessful attempts). An operation or procedure that is performed on
average fewer than three times a year is hardly a “day-to-day” occurrence under
any definition. It follows that the execution protocol in 01-COM-11 is not an
“internal-management rule” as defined in R.C. 111.15(A)(3).
C. Is the protocol an “order respecting the duties of employees”?
{¶ 49} Finally, if the execution protocol is an “order respecting the duties
of employees,” R.C. 111.15(A)(1), then it is not a “rule.” The court of appeals held
that the protocol is an order respecting the duties of employees. As that court
explained:
01-COM-11 is an “order respecting the duties of employees”
because it establishes the methods, processes, and procedures to be
employed by ODRC personnel in carrying out the execution of a
condemned inmate. 01-COM-11 is a 21-page document setting
forth detailed instructions, procedures, and guidelines to be followed
by “all individuals involved in carrying out a court-ordered death
sentence.” (01-COM-11, Section III.) It stands to reason that
ODRC employees are the “individuals involved in carrying out a
court-ordered death sentence.” The policy sets forth numerous
procedures to be accomplished by ODRC personnel 30 days, 14
days, 24 hours, and 15 minutes prior to a scheduled execution, as
well as procedures to be employed post-execution. The policy also
includes extensive instructions directing employees in the
procurement, preparation, and administration of the drugs to be
utilized in the execution process.
2020-Ohio-506, 146 N.E.3d 605, at ¶ 21.
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{¶ 50} This analysis is correct. It is true, as the inmates argue, that certain
provisions of the protocol affect people who are not DRC employees—most
obviously, the inmate being executed, but also the inmate’s family, clergy, counsel,
and the news-media personnel covering the execution. Nevertheless, as we
discussed above, the protocol amounts to an instruction manual on how to perform
an execution. As one would expect of such a manual, nearly all of it deals with the
duties of DRC personnel participating in an execution.
D. Is the protocol a “rule” because it was adopted under the authority of
R.C. 5120.01?
{¶ 51} R.C. 5120.01 provides, in part:
The 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.
{¶ 52} The inmates point to the provision of R.C. 5120.01 that requires
DRC to carry out all its duties “under the rules and regulations that the director
prescribes” to argue that this language requires whatever DRC does to fulfill its
duties to be done under a “rule or regulation.” And their argument implicitly
assumes, without attempting to demonstrate, that “rules and regulations” as used in
R.C. 5120.01 means only those rules that have been adopted in accordance with the
rule-filing procedures of R.C. 111.15.
{¶ 53} The inmates further note that while R.C. 5120.01 applies specifically
to DRC, R.C. 111.15 applies generally to state agencies that are not subject to the
Administrative Procedure Act. Citing the principle that “specific statutory
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provisions prevail over conflicting general statutes,” State v. Chippendale, 52 Ohio
St.3d 118, 120, 556 N.E.2d 1134 (1990), they contend that R.C. 5120.01 prevails
over the provision of R.C. 111.15(A) that “orders regarding the duties of
employees” are not “rules” and are therefore not subject to the filing requirement
of R.C. 111.15(B).
{¶ 54} Generally, when there is a conflict between a general statutory
provision and a more specific statutory provision, the specific provision controls.
MacDonald v. Cleveland Income Tax Bd. of Rev., 151 Ohio St.3d 114, 2017-Ohio-
7798, 86 N.E.3d 314, ¶ 27, citing Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 183 (2012). But when two statutes are capable of
coexisting, it is the duty of the courts to regard each as effective and, when possible,
to interpret them in a way that gives effect to both. Morton v. Mancari, 417 U.S.
535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). Thus, if we can, we must construe
R.C. 5120.01 so that it does not conflict with R.C. 111.15(A). If the conflict
between the two statutes is irreconcilable, then may we decide that one prevails
over the other. See State v. Pribble, 158 Ohio St.3d 490, 2019-Ohio-4808, 145
N.E.3d 259, ¶ 13.
{¶ 55} R.C. 5120.01 conflicts with R.C. 111.15(A) only if we adopt the
inmates’ proposed reading of R.C. 5120.01, i.e., that the director of DRC must
formally promulgate an administrative rule to govern every duty carried out by
DRC personnel. As the state points out, that covers a lot of territory—from
deciding the direction in which the lunch line should move to dealing with an
inmate’s unforeseen medical emergency. And the inmates cite no language in R.C.
5120.01 or elsewhere that indicates that the term “rules and regulations” in that
statute refers only to “rules adopted through the rule-filing procedures of R.C.
111.15.” Thus, the two statutes are reconcilable and we thus reject the argument
that R.C. 5120.01 requires that all of DRC’s duties be carried out pursuant to
formally promulgated rules.
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E. The inmates’ other arguments
{¶ 56} The inmates’ remaining arguments take us away from the controlling
statutes and may be disposed of quickly.
{¶ 57} The inmates argue that when an administrative agency engages in
filling in legislative “gaps,” it must do so by adopting rules. Thus, they contend
that 01-COM-11 was required to be rule-filed because it specifies details that are
not prescribed by legislation. They cite no statute to support this argument, and
instead quote the following language from N.W. Ohio Bldg. & Constr. Trades
Council. v. Conrad, 92 Ohio St.3d 282, 289, 750 N.E.2d 130 (2001), quoting
Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974): “As the
United States Supreme Court has noted, ‘[t]he power of an administrative agency
to administer a * * * program necessarily requires the formulation of policy and
the making of rules to fill any gap left, implicitly or explicitly,’ by the legislature.”
(Brackets, ellipsis, and emphasis added in N.W. Ohio Bldg. & Constr. Trades.)
{¶ 58} But this unremarkable general observation does not mean that all
legislative gaps must be filled by formal rulemaking. That question was not before
us in N.W. Ohio Bldg. & Constr. Trades, because the rules challenged in that case
were formally promulgated as provisions of the Administrative Code. Id. at 285-
292.
{¶ 59} Indeed, the great majority of directives that agencies issue, whether
formally promulgated or not, fill in legislative gaps by solving matters that have
not been specified by statutes. Accordingly, this argument does not help to
distinguish between administrative edicts that must be rule-filed under R.C.
111.15(A) and those that need not be.
{¶ 60} The inmates also argue that the protocol should have been
promulgated under R.C. 111.15 because the drafting, filing, and reviewing
requirements of R.C. 111.15 are essential to prevent agencies from crossing “the
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line between legislation and rulemaking.” However, this policy argument is quite
untethered from the language of R.C. 111.15.
{¶ 61} Finally, the inmates note that outside the death-penalty context, DRC
has promulgated administrative rules dealing with some of the matters that are also
covered by 01-COM-11, such as attorney-client access and the transfer of prisoners
between institutions. From this, they infer that DRC has “recognized that these
matters are subject to the rulemaking requirements of R.C. 111.15.” But of course,
the fact that DRC has used formal rulemaking in the past to address certain subjects
in no way amounts to an admission that it must do so when it addresses those same
subjects in the future.
IV. Conclusion
{¶ 62} We hold that the inmates have standing to challenge the validity of
the execution protocol described in 01-COM-11. We reject the inmates’ arguments,
however, on their merits. We hold that 01-COM-11 is neither a rule having a
general and uniform application nor an internal-management rule and that it is an
order dealing with the duties of DRC’s employees. Therefore, DRC was not
required to file 01-COM-11 pursuant to R.C. 111.15. We affirm the judgment of
the court of appeals.4
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
_________________
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General,
Michael J. Hendershot, Chief Deputy Solicitor General, Charles A. Schneider,
4. Counsel for O’Neal has called this court’s attention to an inadvertent misstatement that counsel
had made during oral argument. We note the correction, and we further note that the misstatement
in no way affects our disposition of this case.
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January Term, 2021
Criminal Justice Section Chief, and Brenda S. Leikala, Senior Assistant Attorney
General, for appellees.
Timothy Young, Ohio Public Defender, and Richard A. Cline and Randall
Porter, Assistant State Public Defenders; Dale A. Baich, Assistant Federal Public
Defender; and Porter, Wright, Morris & Arthur, L.L.P., and L. Bradfield Hughes,
for appellant Cleveland Jackson in case No. 2020-0676.
S. Adele Shank and Lawrence J. Greger, for appellant James D. O’Neal in
case No. 2020-0683.
_________________
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