explaining that “when a trial court is faced with multiple violations of the OMA, it is required to issue injunctive relief [under R.C. 121.22(I)(1)] but it has discretion in setting the terms of that relief”
How later courts described this case
- explaining that “when a trial court is faced with multiple violations of the OMA, it is required to issue injunctive relief [under R.C. 121.22(I)(1)] but it has discretion in setting the terms of that relief”
Written by the judges who cited it.
The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Ames v. Rootstown Twp. Bd. of Trustees, Slip Opinion No. 2022-Ohio-4605.]
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. 2022-OHIO-4605
AMES, APPELLANT, v. ROOTSTOWN TOWNSHIP BOARD OF TRUSTEES,
APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Ames v. Rootstown Twp. Bd. of Trustees, Slip Opinion No.
2022-Ohio-4605.]
Open Meetings Act, R.C. 121.22—When multiple violations of R.C. 121.22 through
same conduct are found, a trial court may issue single injunction, and when
it does so, it is required to order public body to pay single $500 civil-
forfeiture penalty as to all offenses—Court of appeals’ judgment affirmed
in part and reversed in part and cause remanded for trial court to revise
injunction language.
(No. 2021-0706—Submitted March 9, 2022—Decided December 22, 2022.)
APPEAL from the Court of Appeals for Portage County,
No. 2020-P-0063, 2021-Ohio-1369.
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SUPREME COURT OF OHIO
BRUNNER, J.
{¶ 1} The Open Meetings Act, R.C. 121.22, requires that all meetings of
public bodies be open to the public. Enforcement occurs through private suits, and
as remedies for violations, the trial court issues injunctive relief and orders the
public body to pay a $500 civil forfeiture as well as the plaintiff’s attorney fees and
court costs. R.C. 121.22(I). In this appeal, we consider the injunctive and civil-
forfeiture remedies a trial court must order when it finds multiple violations of a
single provision of R.C. 121.22. For the reasons stated in this opinion, we hold that
when multiple violations of R.C. 121.22 through the same conduct are found, the
trial court may issue a single injunction, and when it does so, it is required to order
the public body to pay a single $500 civil-forfeiture penalty as to all offenses.
Having discerned a minor error in the injunction issued by the trial court, we affirm
the judgment of the Eleventh District Court of Appeals in part and reverse it in part.
I. BACKGROUND
A. The Open Meetings Act
{¶ 2} The Open Meetings Act (“OMA”) provides that “[a]ll meetings of any
public body are declared to be public meetings open to the public at all times.”
R.C. 121.22(C). “Public body” is defined as including “[a]ny * * * board,
commission, committee, council, agency, authority, or similar decision-making
body of any county, township, municipal corporation, school district, or other
political subdivision or local public institution.” R.C. 121.22(B)(1)(a). “Meeting”
is defined as “any prearranged discussion of the public business of the public body
by a majority of its members.” R.C. 121.22(B)(2).
{¶ 3} A public body is permitted to hold an executive session—from which
members of the public are excluded—only for certain specified purposes. Under
R.C. 121.22(G), “the members of a public body may hold an executive session only
after a majority of a quorum of the public body determines, by a roll call vote, to
hold an executive session and only at a regular or special meeting for the sole
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purpose of the consideration of” any of the matters identified in eight
subparagraphs, R.C. 121.22(G)(1) through (8).
{¶ 4} Relevant here is R.C. 121.22(G)(3), which permits an executive
session for “[c]onferences with an attorney for the public body concerning disputes
involving the public body that are the subject of pending or imminent court action.”
R.C. 121.22(G)(3). Also relevant is R.C. 121.22(G)(8), which permits an executive
session to occur “[t]o consider confidential information related to the marketing
plans, specific business strategy, production techniques, trade secrets, or personal
financial statements of an applicant for economic development assistance, or to
negotiations with other political subdivisions respecting requests for economic
development assistance.” But R.C. 121.22(G)(8) imposes two conditions on any
executive session held under that provision. It requires that the information to be
considered be directly related to requests for economic-development assistance
under particular provisions of the Revised Code and that the public body vote to
determine that the executive session is “necessary to protect the interests of the
applicant or the possible investment or expenditure of public funds to be made in
connection with the economic development project.” R.C. 121.22(G)(8)(a) and (b).
{¶ 5} Once a meeting has concluded, the minutes “shall be promptly
prepared, filed, and maintained and shall be open to public inspection.” R.C.
121.22(C). “The minutes need only reflect the general subject matter of discussions
in executive sessions authorized under [R.C. 121.22(G) or (J)].” Id.
{¶ 6} For alleged violations of the statute, the OMA creates a private right
of action, such that “[a]ny person may bring an action to enforce” the statute within
two years of the alleged or threatened violation. R.C. 121.22(I)(1).
{¶ 7} R.C. 121.22(I) then sets out specific remedies, which are at the center
of this appeal:
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(1) * * * Upon proof of a violation or threatened violation of
this section in an action brought by any person, the court of common
pleas shall issue an injunction to compel the members of the public
body to comply with its provisions.
(2)(a) If the court of common pleas issues an injunction
pursuant to division (I)(1) of this section, the court shall order the
public body that it enjoins to pay a civil forfeiture of five hundred
dollars to the party that sought the injunction * * *.
“Irreparable harm and prejudice to the party that sought the injunction shall be
conclusively and irrebuttably presumed upon proof of a violation or threatened
violation of this section.” R.C. 121.22(I)(3). The section also requires the court to
award court costs and reasonable attorney fees. R.C. 121.22(I)(2)(a). Finally, “[a]
member of a public body who knowingly violates an injunction issued pursuant to
[R.C. 121.22(I)(1)] may be removed from office by an action brought in the court
of common pleas for that purpose by the prosecuting attorney or the attorney
general.” R.C. 121.22(I)(4).
B. The present suit
{¶ 8} Appellant, Brian M. Ames, filed an action against appellee,
Rootstown Township Board of Trustees, in the Portage County Court of Common
Pleas in 2017. He alleged in 16 counts that the board violated the OMA on 16
separate occasions in 2015 and 2016, and he demanded “an injunction to compel
the [board] to comply with the requirements of R.C. 121.22 in future meetings” as
well as “a civil forfeiture and attorney’s fees as provided by law for each count.”
The trial court granted summary judgment in favor of the board.
{¶ 9} On appeal, the Eleventh District affirmed in part and reversed in part.
Ames v. Rootstown Twp. Bd. of Trustees, 2019-Ohio-5412, 151 N.E.3d 37 (11th
Dist.) (“Ames I”). It found that the board did not violate the OMA at two of the
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meetings identified in the complaint but that it did violate the OMA at the remaining
14 meetings. Six of the violations occurred at meetings held in 2015; of those
violations, five occurred when the board entered into executive session to discuss
legal issues with an attorney but in doing so, failed to identify one of the purposes
for which an executive session is permitted under R.C. 121.22(G)(1) through (8).
At the sixth meeting held in 2015, the board entered into executive session to
discuss “employee discipline and pending litigation” but did so without an attorney
present, contrary to the requirement of R.C. 121.22(G)(3) for discussions
concerning pending litigation. The appellate court also found that the board
violated the OMA on eight occasions in 2016 by entering into executive session to
discuss economic development at eight separate meetings without satisfying the
two conditions set out in R.C. 121.22(G)(8)(a) and (b). The court therefore
concluded that summary judgment should have been granted for Ames on these 14
violations. It remanded the matter to the trial court for it to address the proper
remedy for those violations.
{¶ 10} On remand, the trial court entered summary judgment in favor of
Ames on the eight violations of R.C. 121.22(G)(8) committed in 2016. As a
remedy, it enjoined the board from “conducting business in violation of R.C.
121.22(G)(8)(a)” and ordered the board to pay Ames a civil forfeiture of $500, plus
$1,000 in attorney fees. It did not address the six violations of R.C. 121.22(G)(8)
committed in 2015 and identified in Ames I.
{¶ 11} On appeal, the Eleventh District again reversed in part and affirmed
in part. 2021-Ohio-1369 (“Ames II”). First, it affirmed the trial court’s decision to
issue one injunction and award one $500 civil forfeiture and $1,000 in attorney fees
for the eight violations of R.C. 121.22(G)(8) committed in 2016. It relied on its
holding in Weisbarth v. Geauga Park Dist., 11th Dist. Geauga No. 2007-G-2780,
2007-Ohio-6728. In that case, the trial court had found 20 violations of the OMA
based on the public body’s failure to specify in its meeting minutes the precise
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reason why it had entered into executive session at 20 separate meetings. As a
remedy for those 20 violations, the trial court issued one injunction and ordered one
$500 civil forfeiture. Id. at ¶ 4-5. The Eleventh District affirmed in relevant part.
It concluded that the violations were “technical” in nature, id. at ¶ 27, 30—relating
only to the public body’s “failure to fully specify its basis for entering executive
session”—rather than violations based on formal actions of the public body while
in executive session, id. at ¶ 30. There was also “no intent to conceal the overall
purpose for entering executive session.” Id. at ¶ 27. The plaintiff was therefore
“entitled * * * to only one statutory injunction and one civil forfeiture.” Id. at ¶ 30.
{¶ 12} In the present case, the Eleventh District reiterated its holding in
Weisbarth, concluding that “when multiple technical violations are of the same
nature, the remedy is one injunction and one $500 civil forfeiture, not $500 per
violation. In other words, the violations do not ‘stack.’ ” Ames II at ¶ 35. This
holding, it concluded, is in line with the overarching purpose of the issuance of an
injunction, which is “ ‘to prevent a future injury, not to redress past wrongs.’ ” Id.,
quoting Lemley v. Stevenson, 104 Ohio App.3d 126, 136, 661 N.E.2d 237 (6th
Dist.1995).
{¶ 13} The Eleventh District also found that the trial court had erred by
overlooking the six violations of R.C. 121.22(G) committed in 2015. It therefore
remanded the matter to the trial court for it “to issue an injunction or injunctions,
consistent with this opinion and Ames I, related to the [six violations of
R.C. 121.22(G) committed in 2015], and for a determination of the attorney’s fees,
court costs, and civil forfeitures, if any, to which Mr. Ames is entitled.” Id. at ¶ 47.
{¶ 14} The trial court subsequently granted summary judgment in favor of
Ames with respect to the six violations of the OMA committed in 2015. It issued
injunctive relief prohibiting such conduct in the future and ordered the board to pay
one $500 civil forfeiture, in addition to the $500 civil forfeiture it had previously
ordered the board to pay for the eight violations that occurred in 2016.
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{¶ 15} Separately, Ames filed in this court a notice of appeal concerning the
decision in Ames II on the eight violations committed in 2016. He sought this
court’s review of two propositions of law. We accepted jurisdiction over the first
proposition. See 164 Ohio St.3d 1403, 2021-Ohio-2742, 172 N.E.3d 163. That
proposition states as follows: “After a plaintiff or relator has proven a violation or
violations of the Open Meetings Act by a public body, the duties of a court of
common pleas under R.C. 121.22(I) are purely ministerial including the issuing of
an injunction for each violation proven.” The present appeal concerns only the
court of appeals’ decision with respect to the eight violations of the OMA
committed in 2016.1
II. ANALYSIS
{¶ 16} The interpretation of a statute is a question of law, which we review
de novo. See Columbus Bituminous Concrete Corp. v. Harrison Twp. Bd. of Zoning
Appeals, 160 Ohio St.3d 279, 2020-Ohio-845, 156 N.E.3d 841, ¶ 19. “We
primarily seek to determine legislative intent from the plain language of a statute.”
State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 7. “In
the absence of a definition of a word or phrase used in a statute, words are to be
given their common, ordinary, and accepted meaning.” State v. Black, 142 Ohio
1. The parties have not focused on jurisdiction, but a court has an independent obligation to assure
itself of its authority to decide a case. See State v. Lomax, 96 Ohio St.3d 318, 2002-Ohio-4453, 774
N.E.2d 249, ¶ 17. The dissenting opinion contends that the court of appeals lacked subject-matter
jurisdiction to decide Ames II because Ames appealed from an order that was not final and
appealable under R.C. 2505.02. We disagree. Even though the appealed order disposed of “fewer
than all of [Ames’s] claims,” Civ.R. 54(B), the trial court expressly stated that its order was final
and appealable and certified that there was “[n]o just cause for delay.” That certification made the
trial court’s order final, and therefore appealable, with respect to the claims it did dispose of. See
Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989) (lead opinion).
As to those claims, the court’s order “affect[ed] a substantial right in an action that in effect
determine[d] the action and prevent[ed] a judgment,” R.C. 2505.02(B)(1). The trial court informed
the parties that its decision with respect to the 2016 claims “ha[d] become final for purposes of
appeal,” Pokorny v. Tilby Dev. Co., 52 Ohio St.2d 183, 186, 370 N.E.2d 738 (1977), thus notifying
Ames to appeal now or never, see 10 Moore’s Federal Practice, Section 54.26 (2022) (“An
aggrieved party must appeal a Rule 54(b) judgment within the time permitted * * * and may not
seek review of the judgment after the remaining claims have been adjudicated”).
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St.3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 39. We “read[] all words and phrases
in context and in accordance with the rules of grammar and common usage.”
Gabbard v. Madison Local School Dist. Bd. of Edn., 165 Ohio St.3d 390, 2021-
Ohio-2067, 179 N.E.3d 1169, ¶ 13. “ ‘If the meaning of the statute is unambiguous
and definite, it must be applied as written and no further interpretation is
necessary.’ ” Vanzandt at ¶ 7, quoting State ex rel. Savarese v. Buckeye Local
School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996).
{¶ 17} The statutory language relevant to this appeal is contained in
R.C. 121.22(I). R.C. 121.22(I)(1) provides that “[u]pon proof of a violation or
threatened violation of this section in an action brought by any person, the court of
common pleas shall issue an injunction to compel the members of the public body
to comply with its provisions.” (Emphasis added.) R.C. 121.22(I)(2)(a) then
provides that “[i]f the court of common pleas issues an injunction pursuant to
division (I)(1) of this section, the court shall order the public body that it enjoins to
pay a civil forfeiture of five hundred dollars to the party that sought the injunction.”
(Emphasis added.)
{¶ 18} Ames argues that R.C. 121.22(I)(1) and (2) are unambiguous and
require purely ministerial acts of the trial court with respect to remedies. He
contends that R.C. 121.22(I)(1)’s provision on injunctive relief means that there
must be an injunction issued as a remedy for every violation. Importantly, despite
that contention, he concedes that when multiple violations of the same provision
are the same in nature, the trial court need not issue a separate injunction for each
violation. What matters, he says, is that injunctive relief is granted to prevent the
public body from committing additional violations of that type in the future.
{¶ 19} The board agrees that R.C. 121.22(I)(1) permits a trial court to issue
one injunction to address multiple violations of the same provision of the OMA.
According to the board, the text requires no more in such circumstances. Because
the violations here were “repetitive, identical actions,” the board argues, the trial
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court properly grouped them together and addressed them in a single injunction.
Any additional injunctions against the same act would, in the board’s view, be
superfluous.
{¶ 20} We agree with the parties that a single injunction may be issued in
response to multiple violations of a particular provision of the OMA. As amicus
curiae Ohio Attorney General notes, it has long been settled that trial courts have
significant discretion when deciding on the terms to be included in an injunction.
See State ex rel. Cleveland v. Eighth Dist. Court of Appeals, 104 Ohio St. 96, 107-
108, 135 N.E. 377 (1922). Moreover, we presume that the General Assembly
knows of the state of the common law when it enacts legislation. Stiner v.
Amazon.com, Inc., 162 Ohio St.3d 128, 2020-Ohio-4632, 164 N.E.3d 394, ¶ 27; see
In re Bruce S., 134 Ohio St.3d 477, 2012-Ohio-5696, 983 N.E.2d 350, ¶ 11.
Consequently, while R.C. 121.22(I)(1) requires the trial court to issue “an
injunction to compel the members of the public body to comply with [the]
provisions” of the OMA, these well-established principles that we have articulated
in our caselaw still afford the trial court discretion in crafting that relief.
{¶ 21} In light of this, when a trial court is faced with multiple violations of
the OMA, it is required to issue injunctive relief but it has discretion in setting the
terms of that relief. A trial court considering multiple violations of the OMA based
on the same conduct complies with R.C. 121.22(I)(1) when it issues a single
injunction against that conduct as a remedy. In such a situation, issuing a separate
injunction for each violation would have no greater effect than a single injunction
addressing such violations collectively. By the same token, when a trial court is
considering multiple distinct violations of the OMA or violations of more than one
of its provisions, the trial court has discretion to enjoin each type of violation
separately.
{¶ 22} As for R.C. 121.22(I)(2)(a)’s civil-forfeiture requirement, Ames
contends that R.C. 121.22(I)(2)(a) is unambiguous and requires a separate $500
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civil forfeiture for each violation. He argues that this requirement furthers the
General Assembly’s goal of requiring the board to comply with the OMA, as
reflected in R.C. 121.22(A), which provides that the OMA “shall be liberally
construed to require public officials to take official action and to conduct all
deliberations upon official business only in open meetings unless the subject matter
is specifically excepted by law.” Ames also asserts that this goal is reflected in the
fact that the OMA provides for enforcement through private suits. See
R.C. 121.22(I)(1).
{¶ 23} The attorney general concedes that R.C. 121.22(I)(2)(a) does not
clearly indicate whether one or more civil forfeitures is appropriate when multiple
violations of the same provision of the OMA are proved. But, he argues, a court
faced with a statute that is silent or ambiguous on a particular point should adopt
the interpretation that furthers, rather than hinders, the purpose the statute appears
to be designed to serve. Here, he says, the civil-forfeiture requirement serves two
functions: first, because a civil forfeiture is punitive in nature, rather than forward-
looking, it serves to deter public bodies from violating the OMA; second, because
the recipient of the civil-forfeiture money is the person who brought the suit, the
requirement creates an incentive for would-be plaintiffs to bring suit to enforce the
OMA. Interpreting R.C. 121.22(I)(2)(a) to require a separate civil forfeiture for
every violation would further these two purposes, the attorney general contends,
while interpreting the statute to permit only a single civil forfeiture for multiple
violations would not meaningfully encourage compliance with the OMA.
{¶ 24} The board argues that the plain text of R.C. 121.22(I)(2)(a) clearly
and unambiguously provides that only one civil forfeiture can be awarded in such
circumstances. According to the board, this approach to enforcement of the OMA
makes sense because only one injunction is necessary to prevent future violations
and as a result, only one forfeiture should be awarded. In making this argument,
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January Term, 2022
the board takes the position that the purpose of a civil forfeiture is not to punish the
board for past violations but, rather, to deter such violations in the future.
{¶ 25} We agree with the board that only one civil forfeiture is permitted
when a single injunction is issued in response to multiple violations of the OMA
through the same conduct. The plain text of the statute ties the obligation to order
the public body to pay a civil forfeiture to the award of injunctive relief, not to the
finding of one or more violations. The statute provides that “[i]f the court of
common pleas issues an injunction pursuant to division (I)(1) of this section, the
court shall order the public body that it enjoins to pay a civil forfeiture of five
hundred dollars to the party that sought the injunction.” (Emphasis added.)
R.C. 121.22(I)(2)(a). And as explained above, when a public body commits
multiple violations of the OMA through the same conduct, only one injunction is
needed to order compliance with the OMA in the future. Multiple duplicative
injunctions would serve no purpose. It therefore follows that when an injunction is
issued in response to a public body’s committing multiple violations of the OMA
through the same conduct, R.C. 121.22(I)(2)(a) requires the trial court to award a
single civil forfeiture of $500.
{¶ 26} Even if we were to conclude that the statute is ambiguous, the result
would be the same. The civil-forfeiture requirement appears to serve multiple
purposes. A civil forfeiture is punitive in nature and in that sense serves to both
punish the public body for violating the OMA and deter future violations. Because
the civil forfeiture is given to the person who brings suit and because that person’s
attorney fees and costs are required to be reimbursed under a different provision of
R.C. 121.22(I)(2)(a), the civil-forfeiture requirement also creates an incentive for
private litigants to bring suits to enforce the OMA. Therefore, awarding multiple
civil forfeitures for multiple repeated violations of the same provision of the OMA
would strengthen enforcement of the OMA in some cases. But in other cases, it
could have a different effect. If civil-forfeiture awards are granted on a per-
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violation basis, a person who observes one violation of the OMA may choose to
delay bringing suit in the hopes that the public body will commit the same violation
at numerous meetings, thereby increasing the potential award to the plaintiff. And
that delay could continue for quite some time due to the two-year statute of
limitations. As a result, an interpretation of R.C. 121.22(I)(2)(a) that increases the
monetary award to the plaintiff the longer the plaintiff delays in bringing suit would
both undermine the General Assembly’s goal of ensuring compliance with the
OMA and provide the plaintiff with an unjustified windfall.
{¶ 27} We conclude that when an injunction is issued in response to a public
body’s committing multiple violations of the OMA through the same conduct, the
plain text of R.C. 121.22(I)(2)(a) requires the trial court to order the public body to
pay a single civil forfeiture of $500. Such a requirement serves the purposes
identified above without creating an incentive for delay and the potential for a
windfall.
{¶ 28} Given the facts of this case, we see no error in the decision of the
court of appeals. Because the board’s eight violations of the OMA committed in
2016 were of the same type and based on a failure to comply with R.C.
121.22(G)(8)(a) and (b), the trial court did not err when it addressed those violations
through a single injunction and related civil forfeiture. Importantly, however, we
do not determine whether multiple violations are of the same type based on whether
they are “technical” or “nontechnical” violations. Here, the appellate court’s
decision in Ames I makes clear that it considered the eight violations committed in
2016 as involving the same conduct, 2019-Ohio-5412 at ¶ 70-80, and it concluded
in Ames II that there was “no indication that the Board was trying to hide the reason
for entering into executive session or took improper actions during the executive
session,” 2021-Ohio-1369 at ¶ 25; see also Weisbarth, 2007-Ohio-6728, at ¶ 30, 27
(observing that the violations at issue related only to the public body’s “failure to
fully specify its basis for entering executive session,” not formal actions taken by
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the public body during the executive session, and that there was “no intent to
conceal the overall purpose for entering executive session”).
{¶ 29} As a final matter, Ames also argues that the trial court’s injunction
fails to comply with R.C. 121.22(I)(1) because it does not identify any specific
conduct that is required or prohibited and because it states that it applies only to the
board, not to the board’s individual members. Ames’s argument does not work
here. The injunction provides, in its entirety, that “[t]he Defendant, Rootstown
Township Board of Trustees, is enjoined from conducting business in violation of
R.C. 121.22(G)(8)(a).” The board consists of its members. See R.C. 505.01. R.C.
121.22(G)(8) also specifically conditions entrance into executive session on a vote
by those members. The trial court’s injunction is therefore sufficient to satisfy R.C.
121.22(I)(1)’s requirement that it “compel the members of the public body to
comply with” R.C. 121.22(G)(8).
{¶ 30} That said, we observe a need for a minor revision to the trial court’s
injunction. Because the court found that the board had not complied with the
requirements of R.C. 121.22(G)(8)(a) and (b), it is insufficient to merely enjoin
business not in compliance with subsection (a) alone, as the court did. Thus, on
remand, the trial court should revise the injunction either to refer to both
subsections (a) and (b) or to simply refer to R.C. 121.22(G)(8) as a whole.
III. CONCLUSION
{¶ 31} For these reasons, we hold that when repeated conduct results in
multiple violations of a single provision of R.C. 121.22, the trial court may issue a
single injunction, and when it does so, it is required to order the public body to pay
a single $500 civil-forfeiture penalty as to all offenses. We affirm the judgment of
the court of appeals in part and reverse it in part. On remand, the trial court shall
revise the injunction either to refer to both subsections (a) and (b) of
R.C. 121.22(G)(8) or to simply refer to R.C. 121.22(G)(8) as a whole.
Judgment affirmed in part
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and reversed in part
and cause remanded.
O’CONNOR, C.J., and DEWINE, DONNELLY, and STEWART, JJ., concur.
FISCHER, J., concurs in judgment only.
KENNEDY, J., dissents, with an opinion.
_________________
KENNEDY, J., dissenting.
{¶ 32} This appeal suffers from a fatal flaw: the court of appeals reached its
merits even though the trial court’s order is not a final, appealable order. The trial
court had resolved only 8 of the 16 counts set forth in the complaint. Therefore,
the court of appeals lacked subject-matter jurisdiction over the appeal, and its
decision reaching the merits is not properly before this court. This determination
should end the analysis, but the majority proceeds to address the substance of the
appeal, so I do as well.
{¶ 33} The plain and unambiguous language of the Open Meetings Act,
R.C. 121.22, provides that for every violation a trial court finds, the court must
issue an injunction to prohibit a future violation. And for every injunction issued,
the Open Meetings Act requires the trial court to order a civil forfeiture of $500.
Nothing in the statutory text affords the trial court discretion to impose one
injunction for multiple violations. Consequently, appellant, Brian M. Ames, is
entitled to an award of $500 for each occasion appellee, Rootstown Township
Board of Trustees, violated the Open Meetings Act.
{¶ 34} Therefore, I would reverse the judgment of the Eleventh District
Court of Appeals and would remand this matter to the trial court for the entry of a
final, appealable order. Because the majority does otherwise, I dissent.
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I. LAW AND ANALYSIS
A. Lack of a Final, Appealable Order
{¶ 35} Ames filed a 16-count complaint seeking injunctive relief for
numerous violations of the Open Meetings Act. The trial court initially entered
summary judgment in favor of the board of trustees on all 16 counts. On appeal,
the Eleventh District affirmed in part and reversed in part, concluding that Ames
was entitled to summary judgment on 14 of the 16 counts. On remand, the trial
court entered summary judgment on eight of the counts, but it failed to address the
other counts in its entry. On appeal from that order, the court of appeals again
affirmed in part and reversed in part, upholding the trial court’s decision to issue a
single injunction and to order a single civil forfeiture for the eight violations. The
court of appeals then remanded the matter to the trial court to address the remaining
counts, but Ames appealed the court of appeals’ judgment to this court.
{¶ 36} While Ames’s appeal was pending here, the trial court ruled on the
merits of the remaining violations that had not been addressed in its prior entry.
{¶ 37} Article IV, Section 3(B)(2) of the Ohio Constitution establishes the
appellate jurisdiction of the courts of appeals and provides that “[c]ourts of appeals
shall have such jurisdiction as may be provided by law to review and affirm,
modify, or reverse judgments or final orders of the courts of record inferior to the
court of appeals within the district, except that courts of appeals shall not have
jurisdiction to review on direct appeal a judgment that imposes a sentence of death.”
{¶ 38} A judgment is defined as “ ‘a final determination of the rights of the
parties in action.’ ” State v. Craig, 159 Ohio St.3d 398, 2020-Ohio-455, 151 N.E.3d
574, ¶ 20, quoting Priester v. State Foundry Co., 172 Ohio St. 28, 30, 173 N.E.2d
136 (1961). “[T]he term ‘judgment’ comprehends all decrees and final orders
rendered by a court of competent jurisdiction and which determine the rights of the
parties affected thereby.” Jelm v. Jelm, 155 Ohio St. 226, 235, 98 N.E.2d 401
(1951). Here, the trial court’s decision disposing of some but not all of the counts
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set forth in the complaint is not a final determination of the action and therefore not
a judgment.
{¶ 39} R.C. 2505.02(B) establishes what constitute “final orders.” It makes
what would otherwise be interlocutory orders final for purposes of appeal and
provides:
An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of the
following:
(1) [a]n order that affects a substantial right in an action that
in effect determines the action and prevents a judgment;
(2) [a]n order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
(3) [a]n order that vacates or sets aside a judgment or grants
a new trial;
(4) [a]n order that grants or denies a provisional remedy and
to which both of the following apply:
(a) [t]he order in effect determines the action with respect to
the provisional remedy and prevents a judgment in the action in
favor of the appealing party with respect to the provisional remedy.
(b) [t]he appealing party would not be afforded a meaningful
or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
(5) [a]n order that determines that an action may or may not
be maintained as a class action;
(6) [a]n order determining the constitutionality of any
changes to the Revised Code made by Am. Sub. S.B. 281 of the
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124th general assembly, including the amendment of [certain
enumerated sections];
(7) [a]n order in an appropriation proceeding that may be
appealed pursuant to division (B)(3) of section 163.09 of the
Revised Code.
{¶ 40} Here, the trial court’s decision to rule on some but not all of the
counts set forth in the complaint does not fit within any of these categories of final
orders. The closest two are R.C. 2505.02(B)(1) and (2). R.C. 2505.02(B)(1) does
not apply, because the trial court’s order does not in effect determine the action and
prevent a judgment. “[T]he ‘determines the action’ language in R.C. 2505.02(B)(1)
contemplates a resolution of the ‘entire action.’ ” Craig at ¶ 14, quoting In re D.H.,
152 Ohio St.3d 310, 2018-Ohio-17, 95 N.E.3d 389, ¶ 14, and State ex rel. Daniels
v. Russo, 156 Ohio St.3d 143, 2018-Ohio-5194, 123 N.E.3d 1011, ¶ 12. That did
not happen here—as the court of appeals explained, it appears that the trial court
simply “overlooked” the remaining unresolved counts. 2021-Ohio-1369, ¶ 11.
{¶ 41} Nor does R.C. 2505.02(B)(2) fit, because the trial court’s order in
this case does not affect a substantial right. “An order affects a substantial right for
the purposes of R.C. 2505.02(B)(2) only if an immediate appeal is necessary to
protect the right effectively.” Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90,
2011-Ohio-2317, 950 N.E.2d 516, ¶ 7. But the impact of the grant or denial of
injunctive relief and a civil forfeiture is not “irreversible” in the absence of an
immediate appeal. See id. at ¶ 7. (And for the same reason, the order does not
affect a substantial right under R.C. 2505.02(B)(1).)
{¶ 42} Without a final, appealable order, the court of appeals lacked
subject-matter jurisdiction over the appeal. CitiMortgage, Inc. v. Roznowski, 139
Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 10. “Subject-matter
jurisdiction refers to the constitutional or statutory power of a court to adjudicate a
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particular class or type of case,” Corder v. Ohio Edison Co., 162 Ohio St.3d 639,
2020-Ohio-5220, 166 N.E.3d 1180, ¶ 14, and it “ ‘is a “condition precedent to the
court’s ability to hear the case. If a court acts without jurisdiction, then any
proclamation by that court is void.” ’ ” State v. Harper, 160 Ohio St.3d 480, 2020-
Ohio-2913, 159 N.E.3d 248, ¶ 23, quoting Pratts v. Hurley, 102 Ohio St.3d 81,
2004-Ohio-1980, 806 N.E.2d 992, ¶ 11, quoting State ex rel. Tubbs Jones v. Suster,
84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). “[I]n the absence of subject-matter
jurisdiction, a court lacks the authority to do anything but announce its lack of
jurisdiction and dismiss,” Pratts at ¶ 21.
{¶ 43} The majority maintains that the trial court’s order was appealable
because the court certified that there was “[n]o just cause for delay” under Civ.R.
54(B). However, a civil rule adopted pursuant to our constitutional authority to
prescribe rules of practice and procedure in Ohio courts “shall not abridge, enlarge,
or modify any substantive right.” Article IV, Section 5(B), Ohio Constitution. “It
is well established that statutes establishing subject matter jurisdiction * * * are
substantive law.” Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838,
873 N.E.2d 872, ¶ 18. “ ‘If the statute is jurisdictional, it is a substantive law of
this state, and cannot be abridged, enlarged, or modified by the Ohio Rules of Civil
Procedure.’ ” Id., quoting Akron v. Gay, 47 Ohio St.2d 164, 165-166, 351 N.E.2d
475 (1976). A procedural rule therefore cannot enlarge the jurisdiction of the courts
of appeals by expanding the statutory definition of “final order.” See State v.
Hughes, 41 Ohio St.2d 208, 324 N.E.2d 731 (1975), syllabus (invalidating
provision of Ohio Rules of Appellate Procedure that purported to enlarge a statutory
right of appeal); State v. Waller, 47 Ohio St.2d 52, 351 N.E.2d 195 (1976),
paragraph one of the syllabus (invalidating provision of Ohio Rules of Criminal
Procedure that purported to enlarge a statutory right of appeal).
{¶ 44} Consequently, Civ.R. 54(B) cannot vest a court of appeals with
jurisdiction that the court does not already have, nor does it purport to. See Civ.R.
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82 (“These rules shall not be construed to extend or limit the jurisdiction of the
courts of this state”). It cannot make an order final and appealable if that order is
not already “final” within the meaning of R.C. 2505.02(B). As we have long
recognized, “Civ.R. 54(B) * * * is merely a procedural device. It cannot affect the
finality of an order.” Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21,
540 N.E.2d 266 (1989). Any reliance on Civ.R. 54(B) to create a final, appealable
order, then, is misplaced.
{¶ 45} Therefore, the court of appeals lacked subject-matter jurisdiction to
review Ames’s appeal as to 8 out of the 16 counts set forth in the complaint.
Therefore, the court of appeals’ judgment should be reversed, and this matter
should be remanded to the trial court to enter a final, appealable order. This court
does not need to go any further to resolve this case, but because the majority
addresses the substance of Ames’s appeal, I also turn to the merits of this case.
B. The Open Meetings Act
1. The Standard of Review
{¶ 46} I agree with the majority that the interpretation of a statute is a
question of law that we review de novo. See Stewart v. Vivian, 151 Ohio St.3d 574,
2017-Ohio-7526, 91 N.E.3d 716, ¶ 23. “The question is not what did the general
assembly intend to enact, but what is the meaning of that which it did enact.”
Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the
syllabus. “When the statutory language is plain and unambiguous, and conveys a
clear and definite meaning, we must rely on what the General Assembly has said.”
Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784
N.E.2d 1172, ¶ 12.
2. The Plain Meaning of the Open Meetings Act
{¶ 47} The majority suggests, and I agree, that the Open Meetings Act is
plain and unambiguous, majority opinion at ¶ 26, but that is the extent of our
agreement.
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{¶ 48} With exceptions not at issue here, the Open Meetings Act provides
that “[a]ll meetings of any public body are declared to be public meetings open to
the public at all times.” R.C. 121.22(C). To compel compliance with its provisions
and to remedy violations of them, the Open Meetings Act creates a statutory cause
of action. R.C. 121.22(I) provides:
(1) Any person may bring an action to enforce this section.
An action under division (I)(1) of this section shall be brought
within two years after the date of the alleged violation or threatened
violation. Upon proof of a violation or threatened violation of this
section in an action brought by any person, the court of common
pleas shall issue an injunction to compel the members of the public
body to comply with its provisions.
(2)(a) If the court of common pleas issues an injunction
pursuant to division (I)(1) of this section, the court shall order the
public body that it enjoins to pay a civil forfeiture of five hundred
dollars to the party that sought the injunction * * *.
{¶ 49} The question before this court is whether this language permits a trial
court to issue only one injunction and order only one civil forfeiture when the trial
court has found multiple violations. The majority answers this question in the
affirmative. I disagree.
{¶ 50} The answer is found in the plain meaning of the statute’s words.
R.C. 121.22(I)(1) says that upon proof of a violation, the court must issue an
injunction. According to R.C. 121.22(I)(2), if the court issues an injunction, the
court must order a civil forfeiture. Simple logic dictates that for each violation,
there must be a separate injunction imposed and a separate civil forfeiture awarded.
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Consequently, if the trial court finds that multiple violations occurred, it must issue
multiple injunctions and award multiple civil forfeitures.
{¶ 51} The majority holds differently, concluding that a trial court has
discretion to impose a single injunction and order a single civil forfeiture to remedy
multiple violations of the Open Meetings Act. How does the majority reach this
outcome? It goes beyond the statute’s plain language, adds words to the Open
Meetings Act’s text to support its position, and relies on extrastatutory sources of
meaning, dubious claims about the common law of injunctive relief, and its own
notions of public policy.
3. The Majority Misconstrues the Statute
{¶ 52} As noted above, the majority acknowledges that R.C. 121.22(I)’s
language is unambiguous. Majority opinion at ¶ 26. That should end the analysis,
and the majority should simply “say what the law is,” Marbury v. Madison, 5 U.S.
137, 177, 2 L.Ed. 60 (1803). Instead, the majority’s analysis relies on canons of
statutory interpretation. While the aids to interpretation on which the majority
relies—i.e., the state of the common law, the General Assembly’s purposes in
enacting the legislation, and the consequences of a particular construction—are
valid, R.C. 1.49(D), (A), and (C), a court may consider them only if the statute at
issue is ambiguous. Wayt v. DHSC, L.L.C., 155 Ohio St.3d 401, 2018-Ohio-4822,
122 N.E.3d 92, ¶ 23 (“We do not look to the canons of statutory construction when
the plain language of a statute provides the meaning”).
{¶ 53} To compound the problem, the majority adds words to the statute
when it indicates that the trial court here was permitted to order only one civil
forfeiture for multiple violations because there was “ ‘no indication that the Board
was trying to hide the reason for entering into executive session or took improper
actions during the executive session.’ ” Majority opinion at ¶ 28, quoting 2021-
Ohio-1369 at ¶ 25. But such language does not appear in the text of the statute,
which says that if there is a violation of the Open Meetings Act, then the trial court
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must issue an injunction, and that if it issues an injunction, then it must also order
a civil forfeiture. “[I]f the General Assembly could have used a particular word in
a statute but did not, [this court] will not add that word by judicial fiat.” Hulsmeyer
v. Hospice of Southwest Ohio, Inc., 142 Ohio St.3d 236, 2014-Ohio-5511, 29
N.E.3d 903, ¶ 26; see also Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-
2121, 109 N.E.3d 1210, ¶ 20 (“a court may not rewrite the plain and unambiguous
language of a statute under the guise of statutory interpretation”).
{¶ 54} As this court explained long ago, “ ‘[t]o interpret what is already
plain is not interpretation, but legislation, which is not the function of the courts,
but of the general assembly.’ ” Sears v. Weimer, 143 Ohio St. 312, 316, 55 N.E.2d
413 (1944), quoting 37 Ohio Jurisprudence, Section 278, at 514. Rather, “[o]ur
role, in exercise of the judicial power granted to us by the Constitution, is to
interpret and apply the law enacted by the General Assembly.” Houdek v.
ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983
N.E.2d 1253, ¶ 29. And here, the plain and unambiguous language of R.C.
121.22(I) required the trial court to issue an injunction for each violation and to
award statutory damages for each violation.
{¶ 55} To bolster its position, the majority relies on a decision cited by
amicus curiae Ohio Attorney General, but that case has no relevance here.
4. The Majority’s Reliance on a Single 1922 Case Is Misplaced
{¶ 56} Instead of simply applying the text of R.C. 121.22(I), the majority is
guided by a decision from 1922, State ex rel. Cleveland v. Eighth Dist. Court of
Appeals, 104 Ohio St. 96, 135 N.E. 377 (1922). That case predated the Open
Meetings Act by more than 30 years, see Am.H.B. No. 440, 125 Ohio Laws 534,
and preceded the enactment of the Open Meetings Act’s injunctive-relief provisions
by over half a century, see Am.Sub.S.B. No. 74, 136 Ohio Laws, Part I, 152, 155.
State ex rel. Cleveland does discuss the general power of courts to issue injunctions,
but it has no relevance here. Yet according to the majority, State ex rel. Cleveland
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articulates “well-established principles,” majority opinion at ¶ 20, that allow a trial
court “significant discretion when deciding on the terms to be included in an
injunction,” id. at ¶ 20. But if the language of a statute creates the power to issue
an injunction and does not give the trial court discretion in issuing it, where does
that discretion come from other than the raw exercise of judicial power? See, e.g.,
Doe v. Bolton, 410 U.S. 179, 222, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (White, J.,
dissenting); League of Women Voters of Ohio v. Ohio Redistricting Comm., 168
Ohio St.3d 28, 2022-Ohio-342, 195 N.E.3d 974, ¶ 132 (Kennedy and DeWine, JJ.,
dissenting).
{¶ 57} From State ex rel. Cleveland, the majority derives the rule that a trial
court “considering multiple violations of the [Open Meetings Act] or violations of
more than one of its provisions * * * has discretion to enjoin each type of violation
separately” or in a single injunction. Majority opinion at ¶ 20. In that case, this
court was not interpreting the Open Meetings Act or some other statute like it that
requires a trial court to grant injunctive relief in certain circumstances. Because
the General Assembly has written a specific injunctive-relief provision applying at
law, not equity, State ex rel. Cleveland is not controlling or relevant to the
resolution of this case. Only the words of the statute are controlling.
{¶ 58} But the majority does not stop there. It pivots from the state of the
common law to public policy.
5. The Majority’s Mistaken Notions of Public Policy
{¶ 59} The majority asserts, “[W]hen a public body commits multiple
violations of the [Open Meetings Act] through the same conduct, only one
injunction is needed to order compliance with the [Open Meetings Act] in the
future. Multiple duplicative injunctions would serve no purpose.” Majority
opinion at ¶ 25.
{¶ 60} However, “ ‘a fundamental principle of the constitutional separation
of powers among the three branches of government is that the legislative branch of
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government is “the ultimate arbiter of public policy.” ’ ” Kaminski v. Metal & Wire
Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 59, quoting
Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d
420, ¶ 21, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite
Information Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781
N.E.2d 163, ¶ 21.
{¶ 61} One might question whether it makes good public policy to permit a
claimant to receive multiple civil-forfeiture awards for multiple similar violations
of the Open Meetings Act, just as one can question the majority’s public-policy
decisions that a single civil forfeiture suffices to ensure compliance with the Open
Meetings Act’s requirements and that additional awards would “provide the
plaintiff with an unjustified windfall,” majority opinion at ¶ 26. But what cannot
be questioned is that our Constitution assigns the task of weighing such competing
policy considerations to the General Assembly, not this court.
{¶ 62} To resolve the case before us, this court need look no further than
the text of the Open Meetings Act. As explained above, the unambiguous language
of R.C. 121.22(I) required the trial court to issue an injunction for each violation
and to award statutory damages for each violation. Ames was therefore entitled to
a separate civil forfeiture of $500 for each occasion the board of trustees violated
the Open Meetings Act.
II. CONCLUSION
{¶ 63} For these reasons, the judgment of the court of appeals should be
reversed, and this matter should be remanded to the trial court to render a final
judgment on all counts set forth in the complaint. Because the majority does
otherwise, I dissent.
_________________
The Law Firm of Curt C. Hartman and Curt C. Hartman, for appellant.
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January Term, 2022
Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and Andrea
K. Ziarko, for appellee.
Dave Yost, Ohio Attorney General, Benjamin M. Flowers, Solicitor
General, and Diane R. Brey, Deputy Solicitor General, urging reversal in part for
amicus curiae Ohio Attorney General.
Brosius, Johnson & Griggs, L.L.C., Julia E. Donnan, Jennifer L. Huber, and
Peter N. Griggs, urging affirmance for amici curiae Ohio Township Association,
Ohio School Board Association, County Commissioners Association of Ohio, Ohio
Municipal League, and Coalition of Large Ohio Urban Townships.
_________________
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