Back in the late 1990s when I attended the University of Dayton School of Law, I had the opportunity to serve as an extern at Ohio’s Second District Court of Appeals for a few months. I remember the court administrator telling me that one focus of my externship would be helping the judges decide whether the appellants in newly filed appeals were appealing from final, appealable orders. I recall thinking to myself — naively —“How hard can that really be?” Little did I know how vexing that particular question would become not only during my externship, but also throughout my legal career. A recent (and split) decision from the Ohio Supreme Court in Electronic Classroom of Tomorrow v. Ohio State Board of Education (ECOT) illustrates just how tricky the concept of finality truly can be, and how judges can disagree sharply on whether or not a given order is both final and appealable under Ohio law.
For reasons not relevant to this post, the Ohio State Board of Education decided that the Electronic Classroom of Tomorrow, once Ohio’s largest charter school, had received too much state funding — to the tune of $60 million. When the board did so, it acted under a statutory scheme providing that the state department of education, and by extension the board, shall be subject to Ohio Rev. Code Chapter 119, which is Ohio’s general provision spelling out the right to appeal agency adjudications to common pleas court. (See R.C. 3301.13). Ohio Rev. Code Section 119.12(B) provides that “[a]ny party adversely affected by any order of an agency *** may appeal to the court of common pleas of Franklin County.”
That may seem straightforward enough, but when ECOT filed an administrative appeal of the board’s excess funding determination, the common pleas court dismissed the appeal for lack of jurisdiction, concluding that a specific provision within Title 33 of the Revised Code denominated the board’s determination as “final” (and not appealable). Specifically, Ohio Rev. Code Section 3314.08(K) enables the department of education to review a charter school’s enrollment to ensure the school receives the correct funding, provides for an appeal to the board and informal hearing, and then describes the board’s decision as “final” with no mention of any further appellate review. At first, the Tenth District Court of Appeals disagreed, concluding that ECOT was entitled to an administrative appeal, but then on reconsideration the Tenth District affirmed the trial court’s decision, setting the stage for an appeal to the Ohio Supreme Court.
By a vote of 4-3, the Ohio Supreme Court affirmed and held that despite the general appeal provision in R.C. 3301.13, the board’s determination that ECOT must repay excess funding could not be appealed under R.C. Chapter 119.
Writing for the bare majority, Justice DeWine honed in on the plain meaning of “final” per Webster’s Third New International Dictionary as something that “is not to be altered or undone.” As he put it:
A parent ends the discussion with his child upon saying, “I’ve made my decision and my decision is final.” A contestant on Who Wants to be a Millionaire locks in her answer choice only upon affirming that it’s her “final answer.” Likely, you’re out of luck if you intend to return an item to a store that posted a sign saying “All sales are final.”
Addressing the statutory scheme in question, Justice DeWine wrote that by explicitly designating the department of education’s initial excess funding decision as appealable (to the board) but then the board’s decision as “final,” “it is evident that the General Assembly meant only for the department’s initial decision to be subject to an appeal.”
Justice Kennedy, joined by Justices Donnelly and Stewart, disagreed and opined that R.C. 3301.13 and 119.12 “create the right to an administrative appeal from all adjudications of the [board], including an adverse funding decision made pursuant to R.C. 3314.08(K).” The dissent cited a number of Ohio Supreme Court decisions recognizing rights to administrative appeals from decisions of the board, and noted that Webster’s defines “final” as “ending a court action or proceeding leaving nothing further to be determined by the court *** but not precluding an appeal.” (Emphasis added). The dissent noted that the majority’s contrary conclusion “results in this court’s denying ECOT any opportunity to challenge the state board’s order clawing back tens of millions of dollars.”
Ohio practitioners should take careful note of the ECOT decision, particularly in contexts when a state agency issues an order from which their clients may wish to appeal. After ECOT, relying upon a general reference to R.C. Chapter 119 somewhere in the statutory scheme applicable to the agency may no longer be enough to guarantee an administrative appeal to the Franklin County Common Pleas Court, particularly if the agency’s governing statutes describe the order in question as “final” but not also appealable.