Fagan v. Boggs, 2011 Ohio 5884

Background

Fagan and Betts manufactured pet food with raw milk as a primary ingredient; they were issued stop sale/withdrawal orders under R.C. 923.52 by the Ohio Department of Agriculture (ODA) for allegedly using an unrecognized milk ingredient.
ODA notified intent to revoke their commercial feed registrations and scheduled hearings under R.C. 119, but later withdrew the proposed revocations and hearings were cancelled as they ceased production.
The plaintiffs filed suit in common pleas court seeking declaratory judgment, injunction, and attorney’s fees for R.C. 119.092 prevailing-party status; trial court found R.C. 923.52 constitutional as applied and vacated the stop orders, declaring labels compliant.
Trial court awarded plaintiffs attorney fees claiming prevailing-party status and declared Fagan and Betts as prevailing parties, with a filed post-trial motion for additional fees.
On appeal, the Fourth District sustained the ruling that 923.52 was unconstitutional as applied due to illegal rulemaking, vacated portions of the injunction, remanded fees for apportionment, and reversed in part regarding due-process/equal-protection findings.
The court ultimately affirmed in part, reversed in part, vacated in part, and remanded the case for further proceedings consistent with its opinion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the stop-sale order deprived due process or equal protection	Fagan contends ODA improperly applied 923.52 to prohibit raw-milk pet-food ingredients without proper hearings	Boggs argues 923.52 provides a constitutional framework and Appellees failed to pursue condemnation hearings, so no due-process/ equal-protection violation occurred	First assignment sustained; due-process/equal-protection not violated as applied; stop orders were issued under statute and remedies existed
Whether the trial court properly awarded attorney fees	Appellees prevailed on counts involving stop orders and injunctive relief and thus are entitled to fees	ODA argues fees should be limited to issues actually prevailing and denominated under statute; some counts were dismissed	Second assignment sustained in part; fees must be apportioned pro rata to prevailing issues and possibly reduced for dismissed counts; remanded for calculation
Whether the injunction properly restricted future enforcement of feed-label laws	Trial court's injunction was proper to prevent future enforcement of raw-milk prohibition	Injunction extended beyond necessary relief by barring other label deficiencies	Third assignment sustained in part; injunction narrowed to prohibition on raw-milk as ingredient, limited to properly promulgated rule; otherwise vacated
Whether ODA engaged in illegal rulemaking	ODA’s unwritten policy prohibiting raw-milk as a pet-food ingredient violated R.C. Chapter 119	ODA interpreted rules in good faith; no improper rulemaking occurred	Fourth assignment sustained; illegal rulemaking established; decision affirmed on this point

Key Cases Cited

Ruble v. Ream, No official reporter cited in opinion (Ohio App. 2003) (unconstitutional as applied; equal protection considerations discussed)
Yick Wo v. Hopkins, 118 U.S. 356 (U.S. 1886) (equal protection principle; fair law must be applied evenly)
State ex rel. Celebrezze v. National Lime & Stone Co., 68 Ohio St.3d 377 (1994) (unannounced rulemaking concerns; need to follow notice requirements)
State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81 (2008) (construction of statute; legislative intent and notice considerations)
Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133 (2007) (declaratory judgments and discretion in appellate review)
Aust v. Ohio State Dental Bd., 136 Ohio App.3d 677 (2000) (declaratory relief as a matter of judicial discretion)
Arnott v. Arnott, 2010-Ohio-5392 (Ohio App. 2010) (de novo review of purely legal questions in statutory interpretation)
Belinky v. Drake Center, 117 Ohio App.3d 497 (2008) (harmonizing statutes and regulations; deference to agency interpretations)