Nelson v. Mohr

[Cite as Nelson v. Mohr, 2013-Ohio-4506.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Carl A. Nelson, Sr. et al., :
Plaintiffs-Appellants, :
No. 13AP-130
v. : (C.P.C. No. 11CVH-12-15500)
Gary Mohr, Director, Ohio Department : (REGULAR CALENDAR)
of Rehabilitation and Correction et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on October 10, 2013
Carl A. Nelson, Sr., Terry L. Larson, and Paul W. Nelson, pro
se.
Michael DeWine, Attorney General, and Thomas C. Miller, for
appellees.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} Carl A. Nelson, Sr., Terry L. Larson, and Paul W. Nelson, plaintiffs-
appellants, appeal the judgment of the Franklin County Court of Common Pleas in which
the court granted the motion for summary judgment filed by Gary Mohr, Cynthia
Mausser, Kathleen Kovach, Cathy Collins-Taylor, Ellen Venters, Jose A. Torres, Bobby
Bogan, Trayce Thalheimer, and R.F. Rauschenberg, defendants-appellees, and denied
appellants' motion for summary judgment.
{¶ 2} Appellants are inmates under the custody of the Ohio Department of
Rehabilitation and Correction ("ODRC") and housed at Grafton Correctional Institution.
Mohr is the Director of ODRC; Mausser is the Chairperson of the Ohio Parole Board
No. 13AP-130 2
("OPB"); and Kovach, Collins-Taylor, Venters, Torres, Bogan, Thalheimer, and
Rauschenberg are members of the Ohio Adult Parole Authority ("OAPA"). All three
appellants were denied parole in either 2010 or 2011. On December 14, 2011, appellants
filed a complaint for declaratory judgment and injunctive relief. In the complaint,
appellants sought to enjoin appellees from using Ohio Adm.Code 5120:1-1-07(A)(1) and
(2) and OPB Policy No. 105-PBD-03 in their future parole hearings, from transferring
appellants to any other correctional facility while the case was pending, and from enacting
any future codes or policies under R.C. 5149.02 that would conflict with the legislative
intent of any statutes, including R.C. 2967.03, relating to parole release consideration
hearings. Appellants also sought declarations that Ohio Adm.Code 5120:1-1-07 and OPB
Policy No. 105-PBD-03 violate the separation of powers doctrine of the United States and
Ohio Constitutions, Ohio Adm.Code 5120:1-1-07 and OPB Policy No. 105-PBD-03 were
improperly promulgated, Mohr had failed to implement other Ohio Administrative Code
regulations and OPB policies that would regulate the OPB's discretion in parole hearings,
and Mausser, Venters, and Torres have deliberately violated the code of ethics for
attorneys.
{¶ 3} On November 20, 2012, appellants filed a motion for summary judgment.
In their motion for summary judgment, appellants argued that Ohio Adm.Code 5120:1-1-
07 was improperly promulgated and generated from the wrong Revised Code section,
2967.13, and uses language not authorized by the correct Revised Code section, 2967.03.
Appellants asserted that Ohio Adm.Code 5120:1-1-07(A)(1) and (2) incorporate
terminology and criteria reserved exclusively for the judiciary when sentencing a criminal
defendant under R.C. 2929.12 and ignores the language of R.C. 2967.03, which does not
authorize the consideration of the serious nature of the crime, threat to public safety, and
future uncommitted crimes. On December 3, 2012, appellees filed a motion for summary
judgment.
{¶ 4} On January 29, 2013, the trial court denied appellants' motion for summary
judgment, granted appellees' motion for summary judgment, and dismissed appellants'
case. The trial court found that appellants lacked standing to bring their claims and that,
even if they had not lacked standing, their claims would have been without merit.
Appellants appeal the court's judgment, asserting the following assignments of error:
No. 13AP-130 3
[I.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY DENYING APPELLANTS THEIR DAY IN
COURT IN VIOLATION OF ARTICLE I SECTION 16 OF THE
OHIO CONSTITUTION WHEN IT DENIED APPELLANTS'
MOTION FOR SUMMARY JUDGMENT AND GRANTED
SUMMARY JUDGMENT IN FAVOR OF APPELLEES ON
THE SOLE GROUND THAT APPELLANTS LACKED
STANDING.
[II.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY DENYING APPELLANTS THEIR DAY IN
COURT TO REDRESS THE INJURIES COMMITTED UPON
THEM BY APPELLEES WHEN THE COURT FAILED TO
ISSUE A DECLARATORY JUDGMENT STATING
APPELLEES' OHIO ADMINISTRATIVE CODE 5120:1-1-07 IS
IMPROPERLY PROMULGATED UNDER THE WRONG
OHIO REVISED CODE, TO WIT OHIO REVISED CODE
2967.13, INSTEAD OF UNDER THE CORRECT PAROLE
STATUTE, OHIO REVISED CODE 2967.03, IN VIOLATION
OF ARTICLE I SECTION 16 OF THE OHIO CONSTITUTION,
THE 14TH AMENDMENT TO THE UNITED STATES
CONSTITUTION, AND CHAPTER 2721 ET SEQ., OF THE
OHIO REVISED CODE.
[III.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION WHEN IT FAILED TO ISSUE A
DECLARATORY JUDGMENT STATING THAT THE USE OF
OAC 5120:1-1-07 IS IN CONFLICT WITH THE STATUTORY
PROVISIONS OF R.C. 2967.03 AND THUS ITS USE BY
APPELLEES DEPRIVE APPELLANTS OF THEIR
SUBSTANTIVE DUE PROCESS RIGHTS AND PROPERTY
INTEREST RIGHTS TO A MEANINGFUL PAROLE
SUITABILITY HEARING IN VIOLATION OF ARTICLE I
SECTION 16 OF THE OHIO CONSTITUTION, THE 14TH
AMENDMENT TO THE UNITED STATES CONSTITUTION,
AND CHAPTER 2721 ET SEQ., OF THE OHIO REVISED
CODE.
[IV.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION AND COMMITTED PLAIN ERROR WHEN IT
FAILED TO APPLY THE PROPER STANDARD OF REVIEW
IN GRANTING SUMMARY JUDGMENT IN FAVOR OF
APPELLEES.
{¶ 5} Although appellants argue in their first assignment of error that the trial
court erred when it found they lacked standing to bring their claims, even if we were to
No. 13AP-130 4
assume that appellants had standing, appellants' appeal would ultimately fail on the
merits, which they address in their second, third, and fourth assignments of error.
Therefore, because appellants' second, third, and fourth assignments of error are
dispositive of the matter, and any error as to standing would not prejudice appellants, we
will address these assignments of error first. See State ex rel. United Auto., Aerospace &
Agricultural Implement Workers of Am. v. Bur. of Workers' Comp., 108 Ohio St. 3d 432,
2006-Ohio-1327, ¶ 60 (contentions concerning standing can be rendered moot by the
disposition of a case).
{¶ 6} Appellants argue in their second and third assignments of error that the
trial court erred when it failed to grant declaratory judgment on the basis that Ohio
Adm.Code 5120:1-1-07 was improperly promulgated under the wrong R.C. section, and
the use of Ohio Adm.Code 5120:1-1-07 violates the separation of powers provisions in the
Ohio and United States Constitutions. Appellants' argument under their fourth
assignment of error mirrors their arguments under their second and third assignments of
error.
{¶ 7} Summary judgment is appropriate when the moving party demonstrates
that: (1) there is no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) reasonable minds can come to but one conclusion
when viewing the evidence most strongly in favor of the non-moving party, and that
conclusion is adverse to the non-moving party. Hudson v. Petrosurance, Inc., 127 Ohio
St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St. 3d 158, 2007-
Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for summary
judgment is de novo. Hudson at ¶ 29. This means that an appellate court conducts an
independent review, without deference to the trial court's determination. Zurz v. 770 W.
Broad AGA, L.L.C., 192 Ohio App. 3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v.
Westfall, 183 Ohio App. 3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
{¶ 8} When seeking summary judgment on the ground that the non-moving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
non-moving party's claims. Dresher v. Burt, 75 Ohio St. 3d 280, 293 (1996). The moving
No. 13AP-130 5
party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the non-moving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the non-moving party has no evidence to support its claims.
Id. If the moving party meets its burden, then the non-moving party has a reciprocal
burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R.
56(E); Id. If the non-moving party does not so respond, summary judgment, if
appropriate, shall be entered against the non-moving party. Id.
{¶ 9} An appellate court reviewing a declaratory judgment matter should apply a
de novo standard of review in regard to the trial court's determination of legal issues in
the case. Arnott v. Arnott, 132 Ohio St. 3d 401, 2012-Ohio-3208, ¶ 1.
{¶ 10} In the present case, appellants argue in their second, third, and fourth
assignments of error that Ohio Adm.Code 5120:1-1-07 is unreasonable and contrary to
law. They contend that it can be ascertained from the history of Ohio Adm.Code 5120:1-1-
07 that it was improperly promulgated under R.C. 2967.13, entitled "Parole eligibility,"
instead of R.C. 2967.03, entitled "Pardon, commutation, medical release, or reprieve."
Appellants maintain they have a property interest right to receive a meaningful parole
hearing based upon R.C. 2967.03 and not have appellees usurp the authority of the
judicial branch by relying on the improperly promulgated Ohio Adm.Code 5120:1-1-07 to
grant or deny parole. Appellants contend that the parole eligibility factors regarding the
serious nature of the crime, threat to public safety, and future uncommitted crimes are
factors mandated and considered solely by the sentencing court, pursuant to R.C. 2929.12
at the time of the original sentencing, and their consideration by the OPB violates the
principle of separation of powers.
{¶ 11} Appellants complaint can essentially be boiled down to the following two
arguments: (1) Ohio Adm.Code 5120:1-1-07 was improperly promulgated under R.C.
2967.13 instead of R.C. 2967.03, and (2) appellees violated the separation of powers
provisions of the United States and Ohio Constitutions by utilizing Ohio Adm.Code
5120:1-1-07. R.C. 2967.03 provides in pertinent part:
The adult parole authority may exercise its functions and
duties in relation to the pardon, commutation of sentence, or
reprieve of a convict upon direction of the governor or upon
No. 13AP-130 6
its own initiative. It may exercise its functions and duties in
relation to the parole of a prisoner who is eligible for parole
upon the initiative of the head of the institution in which the
prisoner is confined or upon its own initiative. When a
prisoner becomes eligible for parole, the head of the
institution in which the prisoner is confined shall notify the
authority in the manner prescribed by the authority. The
authority may investigate and examine, or cause the
investigation and examination of, prisoners confined in state
correctional institutions concerning their conduct in the
institutions, their mental and moral qualities and
characteristics, their knowledge of a trade or profession, their
former means of livelihood, their family relationships, and
any other matters affecting their fitness to be at liberty
without being a threat to society.
The authority may * * * grant a parole to any prisoner for
whom parole is authorized, if in its judgment there is
reasonable ground to believe that granting a pardon,
commutation, or reprieve to the convict or paroling the
prisoner would further the interests of justice and be
consistent with the welfare and security of society.
{¶ 12} R.C. 2967.13 describes when prisoners serving a sentence of imprisonment
for life for an offense committed on or after July 1, 1996 become eligible for parole.
{¶ 13} Ohio Adm.Code 5120:1-1-07 provides various factors that OPB must
consider when determining if a prisoner should be released on parole. The provision
provides that OPB may decide not to release a prisoner when: (1) there is substantial
reason to believe that the inmate will engage in further criminal conduct, (2) there is
substantial reason to believe that, due to the serious nature of the crime, the release of the
inmate into society would create undue risk to public safety or that, due to the serious
nature of the crime, the release of the inmate would not further the interest of justice nor
be consistent with the welfare and security of society, (3) there is substantial reason to
believe that the release of the inmate would not act as a deterrent to the inmate or to other
institutionalized inmates from violating institutional rules and regulations, and (4) there
is need for additional information upon which to make a release decision. Ohio Adm.Code
5120:1-1-07(A). Ohio Adm.Code 5120:1-1-07(B)(1) through (18) provides 17 specific
factors, plus an "any other factors" catch-all factor, that OPB must consider when
contemplating the release of an inmate.
No. 13AP-130 7
{¶ 14} The purpose of administrative rule-making is to facilitate the administrative
agency's placing into effect the policy declared by the General Assembly in the statutes to
be administered by the agency. In other words, administrative agency rules are an
administrative means for the accomplishment of a legislative end. Carroll v. Dept. of
Adm. Servs., 10 Ohio App. 3d 108, 110 (10th Dist.1983). It is well-established that when by
statutory authority an administrative agency promulgates rules and regulations governing
its activities and procedures, such rules are valid and enforceable unless they are
unreasonable or in conflict with statutory enactments covering the same subject matter.
State ex rel. De Boe v. Indus. Comm., 161 Ohio St. 67 (1954). An administrative rule
cannot add or subtract from the legislative enactment. Cent. Ohio Joint Vocational School
Dist. Bd. of Edn. v. Admr., Bur. of Emp. Servs., 21 Ohio St. 3d 5, 10 (1986). An
administrative rule also cannot exceed the rule-making authority delegated by the
General Assembly. Sterling Drug, Inc. v. Wickham, 63 Ohio St. 2d 16, 19 (1980).
{¶ 15} In the present case, appellants point to no convincing evidence that Ohio
Adm.Code 5120:1-1-07 was "improperly promulgated" under R.C. 2967.13 instead of R.C.
2967.03. Appellants rely on the history notations that follow the actual text of Ohio
Adm.Code 5120:1-1-07 to support their contention that the rule was improperly
promulgated under R.C. 2967.13. Among other things, the notations indicate that the
"Rule Amplifies" R.C. 2967.13. Other code sections are also listed as amplifying the rule,
but R.C. 2967.03 is not among them. Appellees agree that R.C. 2967.03 is the statute that
gives it authority to exercise its parole functions and provides the factors that guide its
parole investigation, but suggest that, perhaps, the citation to R.C. 2967.13, instead of R.C.
2967.03, is a typographical error.
{¶ 16} Regardless, the history section following the actual text of the rule does not
support appellants' contention. The court in Arndt v. P & M Ltd., 11th Dist. No. 2007-P-
0038, 2008-Ohio-2316, ¶ 40, explained that this "history trail" is part of the
"supplemental information" required by the Ohio Legislative Service Commission's Rule
Drafting Manual. According to the Rule Drafting Manual, the "Rule Amplifies Line"
" 'cites the Revised Code section(s) that the rule expands upon, further details, or clarifies
(i.e., amplifies or implements).' " (Emphasis sic.) Id., quoting Rule Drafting Manual at 19.
However, the "Rule Amplifies Line" does not constitute " 'the statement of the law
No. 13AP-130 8
expressed by the rule.' " Id. at ¶ 41, quoting Rule Drafting Manual at 14. Rather, it merely
provides " 'information about the statutes that prescribe the process for adopting the
rule.' " Id., quoting Rule Drafting Manual at 18. The statement of law expressed by a rule
" 'must be substantively complete in and of itself.' " Id., quoting Rule Drafting Manual at
14. Thus, the court in Arndt concluded that "[t]here is no authority of which this court is
aware that supports the defendants' assertion that provisions of the Ohio Administrative
Code are only applicable under the Revised Code Sections that they amplify." Id.
{¶ 17} Thus, Arndt recognized that the history trail merely provides additional
background information, the actual language of the rule itself is the only legally significant
part of the rule, and statutes and administrative rules are not exclusively linked to each
other. Appellants here cite no authority for the proposition that an allegedly incorrect
citation in the "Rule Amplifies Line" in the history trail in the supplemental information
section following an administrative rule renders the rule itself invalid. Therefore, we find
the fact that the "Rule Amplifies Line" in the present case lists R.C. 2967.13, instead of
2967.03, is inconsequential to appellants' argument. We also note that the history trail for
Ohio Adm.Code 5120:1-1-07 also indicates the rule was "Promulgated Under" R.C. 111.15;
therefore, neither R.C. 2967.03 nor 2967.13 are even implicated. Thus, the "Promulgated
Under" line also provides no support for appellants' contention that the rule was
improperly promulgated under R.C. 2967.13.
{¶ 18} Appellants also cannot demonstrate that Ohio Adm.Code 5120:1-1-07 is
unreasonable or in conflict with R.C. 2967.03. Ohio Adm.Code 5120:1-1-07 provides
various factors that OAPA must consider when determining if a prisoner should be
released on parole, including the serious nature of the crime, the threat to public safety,
and any future uncommitted crimes. These factors found in the rule do not conflict with
the language of R.C. 2967.03. R.C. 2967.03 provides that, in considering parole, OAPA
may investigate and examine prisoners concerning any matters affecting their fitness to
be at liberty without being a threat to society. R.C. 2967.03 has been construed as
"allow[ing] the board to consider any evidence it feels is pertinent to the question of
whether the prisoner is fit to be at liberty without harming others." State ex rel.
Thompson v. Clark, 7 Ohio App. 3d 191, 192 (10th Dist.1982). See also Fugett v. Ghee,
10th Dist. No. 02AP-618, 2003-Ohio-1510, ¶ 17 (finding both the Ohio Revised Code and
No. 13AP-130 9
the Ohio Administrative Code give OAPA the authority to investigate and examine any
matters affecting appellant's ability to be at liberty without being a threat to society).
Thus, although R.C. 2967.03 contains no explicit language allowing OAPA to specifically
consider the serious nature of the crime, threat to public safety, and future uncommitted
crimes, the all-encompassing language of R.C. 2967.03 permits it to do so. Therefore,
there is no conflict between R.C. 2967.03 and Ohio Adm.Code 5120:1-1-07.
{¶ 19} Furthermore, appellants' argument that the serious nature of the prisoner's
crime and the prisoner's likelihood of committing future crimes are factors that can be
considered solely by the sentencing court, pursuant to R.C. 2929.12, when a defendant is
originally sentenced is similarly flawed. Appellants claim that permitting OAPA to execute
the "judicial function" of considering the serious nature of the prisoner's crime and the
likelihood of committing future crimes is a violation of the separation of powers doctrine.
However, as explained above, R.C. 2967.03 specifically allows OAPA to consider any
matters affecting a prisoner's fitness to be at liberty without being a threat to society,
which would include any factors that might also be listed under R.C. 2929.12. Appellants
present no authority for the proposition that OAPA and the trial court may not consider
the same factors in making their respective determinations.
{¶ 20} While we agree with appellants that an offender who is eligible for parole
must receive "meaningful consideration for parole" at his parole hearing, Layne v. Adult
Parole Auth., 97 Ohio St. 3d 456, 2002-Ohio-6719, ¶ 27, the facts asserted by appellants in
their complaint do not raise any genuine issue of material fact demonstrating that
appellants were denied such meaningful consideration. Therefore, appellants' second,
third, and fourth assignments of error are overruled. Given our disposition on these
assignments of error, we need not address appellants' first assignment of error regarding
standing, as explained previously.
{¶ 21} Accordingly, appellants' first assignment of error is rendered moot,
appellants' second, third, and fourth assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT, P.J., and SADLER, J., concur.
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