Electronic Classroom of Tomorrow v. State Bd. of Edn. (Slip Opinion)Electronic Classroom of Tomorrow v. State Bd. of Edn. (Slip Opinion)
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Electronic Classroom of Tomorrow v. State Bd. of Edn., Slip Opinion No. 2021-Ohio-3445.]
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.
Education—Community schools—Ohio State Board of Education‘s final determination that a community school must repay money in excess funding may not be appealed under R.C. Chapter 119—Court of appeals’ judgment affirmed.
{¶ 1} When a charter school is found to owe money to the state of Ohio based on a review of the school‘s enrollment data, a statute allows the charter school to appeal that decision to the Ohio State Board of Education for an informal hearing on the matter.
{¶ 2} We hold that there is no right to appeal such a decision.
I. Background
{¶ 3} Before closing its doors in 2018, the Electronic Classroom of Tomorrow (“ECOT“) was Ohio‘s largest charter school.1 State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶ 2. It was the state‘s first online charter school and, like
A. The Ohio Department of Education determines that ECOT owes some $60 million to the state
{¶ 4} In 2016, the Ohio Department of Education conducted a review of student enrollment at ECOT and determined that the state had overpaid the charter school approximately $60 million. This finding was premised on the department of education‘s determination that ECOT was required to provide its students with five hours of learning opportunities per day, and an examination of log-in and logout data which revealed that, on average, students remained online for one hour a day.
{¶ 5} The review of ECOT‘s enrollment data was conducted pursuant to the department of education‘s authority under
B. ECOT seeks to challenge the state board‘s decision
{¶ 6} After the department of education made its determination that ECOT received too much funding and needed to repay the state, ECOT exercised its right to appeal to the state board. The state board considered the appeal and issued a decision largely confirming the department of education‘s determination and ordering a return of $60,350,791.
{¶ 7} ECOT proceeded to simultaneously institute two different actions in an attempt to challenge the state board‘s “final” determination. It filed at the Franklin County Court of Common Pleas an administrative appeal of the state board‘s determination, arguing that the enrollment-review statute‘s reference to “final” meant the determination was appealable. (This matter is the subject of the present appeal.) And it filed an original action seeking writs of mandamus and prohibition in this court, under the alternative theory that an extraordinary writ was available because the enrollment-review statute did not provide a right to appeal the state board‘s “final” decision. The state board moved to dismiss the original action. It argued that an extraordinary writ was improper because ECOT had an adequate remedy at law by way of the administrative appeal, and that, setting aside the adequate-remedy issue, ECOT failed to allege any claims justifying relief. We granted the state board‘s motion and dismissed the original action without specifying our rationale.2 State ex rel. Electronic Classroom of Tomorrow v. State Bd. of Edn., 150 Ohio St.3d 1426, 2017-Ohio-7567, 81 N.E.3d 1268.
{¶ 8} As for ECOT‘s administrative appeal, the common pleas court granted a motion to dismiss, concluding that it lacked jurisdiction to entertain the appeal because the enrollment-review statute denominated the state board‘s determination as “final.”
{¶ 9} ECOT has now appealed the court of appeals’ judgment affirming the trial court‘s dismissal order. We must determine whether the enrollment-review statute allows ECOT to appeal the state board‘s “final” determination.
II. Under a plain reading of the enrollment-review statute, the final decision of the state board is not subject to appeal
{¶ 10} Not all orders issued by administrative agencies—even ones that are denoted as final—are subject to appeal. Our Constitution provides that the courts of appeals shall have “such jurisdiction as may be provided by law” to review administrative decisions.
{¶ 11}
{¶ 12} The enrollment-review statute establishes procedures for the department of education to issue findings for the recovery of excess funding based upon a review of a community school‘s enrollment data and for a community school to challenge those findings by appealing to the state board. There is no question that the enrollment-review statute is a more specific statute than
{¶ 13} Our analysis starts with the enrollment-review statute, and specifically what it means when it says that the state board‘s determination following an informal hearing is “final.” ECOT argues that the word “final” should be understood as a legal term of art, meaning that the state board‘s decision is subject to an appeal. The state board disagrees; it says “final” should be understood in the everyday sense of the word, marking the end of the road thus rendering the state board‘s decision nonappealable. We share the state board‘s view.
{¶ 14} The ordinary meaning of “final,” of course, is something that is “not to be altered or undone.” Webster‘s Third New International Dictionary 851 (1986). 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
{¶ 15} ECOT‘s argument is premised on the fact that sometimes in the legal context, labeling something as “final” also imparts an additional meaning to the word. Sometimes we use “final” as a legal term of art to indicate the point at which proceedings before one court are complete, and the matter may be appealed to a higher court. In Ohio, a “final order” is one that may be appealed to a higher court. See
{¶ 16} In determining the meaning of “final” within the enrollment-review statute, we look first to the plain language of the statute, read in context. The statute creates a two-step review of the public funding a community school has received, first by the department of education and then by the state board on appeal. Step one involves the department of education‘s initial review.
{¶ 17} An appeal of the department of education‘s determination leads to the second step: the state board‘s determination of the appeal following an informal hearing on the matter.
{¶ 18} By explicitly designating the department of education‘s initial decision as appealable but not the state board‘s final decision as such, it is evident that the General Assembly meant only for the department‘s initial decision to be subject to an appeal. Why would the General Assembly hide the ball about the supposed appealability of the state board‘s decision after plainly stating in
{¶ 19} This reading is reinforced when one contrasts the way “final” is used in the enrollment-review statute with the way it is typically used when meant as a legal term of art. When “final” is used to specify the point in time in which an order may be appealed to a higher court, it is a modifying word. Thus, legal texts speak of “final order[s],” see
{¶ 20} ECOT insists that had the state legislature meant to foreclose appellate review of the state board‘s decision, it would have used language like “final and not appealable.” In support, it points to other parts of the Revised Code where such language has been employed. See, e.g.,
III. Caselaw supports our plain reading of the enrollment-review statute
{¶ 21} If there is any doubt that this plain reading is the correct interpretation of “final” in the enrollment-review statute, it is removed when one looks to our caselaw. We start with Brookwood. That case also concerned the meaning of “final,” though in a different statute about applying to be a sponsor of a community school. See
{¶ 22} We said in Brookwood that the “crux of this case is the interplay between [former]
{¶ 23} Thus, the key to Brookwood, 127 Ohio St.3d 469, 2010-Ohio-5710, 940 N.E.2d 1256, was the existence of a specific statutory provision allowing for the appeal of the department of education‘s decision disapproving an entity for sponsorship. In our
{¶ 24} In arguing that the state board‘s decision is appealable, both ECOT and the dissent rely heavily on the interplay between the general provision in
{¶ 25} The dissent claims that its preferred result is “consistent” with our decision in Brookwood. See dissenting opinion at ¶ 55. Hardly so. The dissent would hold that the state board‘s decision under
{¶ 26} Moreover, in Brookwood, this court cited that line of authority without any suggestion that those cases were wrongly decided. 127 Ohio St.3d 469, 2010-Ohio-5710, 940 N.E.2d 1256, at ¶ 14. To the contrary, Brookwood found these cases distinguishable because of the existence in former
IV. Conclusion
{¶ 27} When read in context of the entire statute, it is clear that “final” is used in its ordinary sense, marking the end of the enrollment-review statute‘s two-step review process. Accordingly, we hold that the state board‘s final determination that ECOT must repay some $60 million in excess funding cannot be appealed under
Judgment affirmed.
O‘CONNOR, C.J., and FISCHER and GWIN, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by DONNELLY and STEWART, JJ.
W. SCOTT GWIN, J., of the Fifth District Court of Appeals, sitting for BRUNNER, J.
KENNEDY, J., dissenting.
{¶ 28} Because the established legal meaning of the word “final” is that the matter is concluded before a tribunal and subject to an appeal if one is otherwise provided by law,
{¶ 29}
{¶ 30} Resolving this question returns us to a familiar place: statutory interpretation. As we explained long ago, “[t]he 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. In conducting this task, “we must examine the statutory scheme as a whole as well as the specific code sections immediately at issue.” Holben v. Interstate Motor Freight Sys., 31 Ohio St.3d 152, 156, 509 N.E.2d 938 (1987). “When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need for this court to apply the rules of statutory interpretation.” Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). Rather, “[a]n unambiguous statute is to be applied, not interpreted.” Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph five of the syllabus.
{¶ 31}
{¶ 32} With exceptions not relevant here,
{¶ 33} We have long recognized that when
{¶ 34} In addition,
{¶ 35}
{¶ 36} This court has noted that ” ’ “[a]ny” means “one or some indiscriminately of whatever kind.” ’ ” Weiss v. Pub. Util. Comm., 90 Ohio St.3d 15, 17, 734 N.E.2d 775 (2000), quoting State ex rel. Purdy v. Clermont Cty. Bd. of Elections, 77 Ohio St.3d 338, 340, 673 N.E.2d 1351 (1997), quoting Webster‘s Third New International Dictionary 97 (1971). The word “any” is “inclusive,” The Way Internatl. v. Limbach, 50 Ohio St.3d 76, 80, 552 N.E.2d 908 (1990), and “is often used as meaning ‘all,’ ” Wachendorf v. Shaver, 149 Ohio St. 231, 240, 78 N.E.2d 370 (1948), or “every,” State v. Wells, 146 Ohio St. 131, 137, 64 N.E.2d 593 (1945).
{¶ 37} Therefore, unless some other more specific provision creates an express exception to the statutory right to an administrative appeal afforded by
{¶ 38}
If the review results in a finding that additional funding is owed to the school, such payment shall be made within thirty days of the written notice. If the review results in a finding that the community school owes moneys to the state, the following procedure shall apply:
(a) Within ten business days of the receipt of the notice of findings, the community school may appeal the department‘s determination to the state board * * * or its designee.
(b) The [state] board or its designee shall conduct an informal hearing on the matter within thirty days of receipt of such an appeal and shall issue a decision within fifteen days of the conclusion of the hearing.
(c) If the [state] board has enlisted a designee to conduct the hearing, the designee shall certify its decision to the [state] board. The [state] board may accept the decision of the designee or may reject the decision of the designee and issue its own decision on the matter.
(d) Any decision made by the [state] board under this division is final.
(Emphasis added.) “If it is decided that the community school owes moneys to the state, the department shall deduct such amount from the school‘s future payments in accordance with guidelines issued by the superintendent of public instruction.”
{¶ 39} The state board maintains that by making its decision “final” without also providing that the order is “appealable,”
{¶ 40} The General Assembly has not provided a specific definition of the word “final” for purposes of
{¶ 41} One definition of the adjective “final,” as the majority points out, is ” ‘not to be altered or undone.’ ” Majority opinion at ¶ 14, quoting Webster‘s Third New International Dictionary 851 (1986). Under this definition, the state board‘s funding determination would be final, unalterable, and therefore not subject to any appeal. Not even the state board appears to believe that its decision is unalterable, however, because it asserts that its adverse funding determination may be challenged by ECOT (and therefore altered) in a mandamus action. If the state board‘s decision were truly unalterable, then it could not be undone by a tribunal.
{¶ 42} In any case, that is not the only definition of the word “final.” It has acquired
{¶ 43} As these definitions demonstrate, a decision that is “final” in the legal sense puts an end to the litigation before a particular tribunal but does not mean that the decision is unalterable on appeal. We pointed out in Brookwood Presbyterian Church v. Ohio Dept. of Edn. that “in our system of law, ‘final’ can mean the opposite of ‘not appealable.’ ” 127 Ohio St.3d 469, 2010-Ohio-5710, 940 N.E.2d 1256, ¶ 12.
{¶ 44} This understanding that a tribunal‘s order may be “final” yet nonetheless subject to an appeal is well established. As the late Justice Felix Frankfurter once noted, requiring finality as the test for appealability is “an historic characteristic” of appellate procedure. Cobbledick v. United States, 309 U.S. 323, 324, 60 S.Ct. 540, 84 L.Ed. 783 (1940). The requirement for finality existed in the common-law courts of England and was carried over into the federal Judiciary Act of 1789. Id. at 324-325; McLish v. Roff, 141 U.S. 661, 665, 12 S.Ct. 118, 35 L.Ed. 893 (1891). This court also accepted the common-law rule that a writ of error is not available until the matter before the inferior court is final. State ex rel. Cook v. Ottinger, 43 Ohio St. 457, 461, 3 N.E. 298 (1885); Kinsley v. State, 3 Ohio St. 508 (1854). The General Assembly extended the same rule to equitable matters in 1830. Crick, The Final Judgment as a Basis for Appeal, 41 Yale L.J. 539, 549 (1932), quoting 29 Ohio Laws 90 (“appeals might be only from ‘any final sentence or decree made in any cause in chancery’ “). And Ohio has retained finality as a requirement for appealability in
{¶ 45} And the way that the General Assembly uses the word “final” in statutes addressing the appealability of final decisions confirms that the word “final” in
{¶ 46} In Title 33 alone, for example, the General Assembly states at various points that a decision is “final,”
{¶ 47} But the word “final” is not synonymous with “appealable,” either. Instead, the word “final,” when used in the legal context of describing the effect of a tribunal‘s decision, means that the matter is concluded in that tribunal and subject to an appeal if one is otherwise provided by law. And because the General Assembly uses the word “final” consistently, a decision that is final may be appealable or not appealable, depending on the language of the relevant statute or statutory scheme either granting or denying an appeal. This construction therefore does not render any language superfluous—the phrases “final and appealable” and “final and not appealable” may each be given effect. In contrast, construing the word “final” as meaning “unalterable” renders the statutory language that an appeal is “final and appealable“—i.e., unalterable yet appealable—unintelligible.
{¶ 48} The majority acknowledges that in the legal context, finality generally corresponds with appealability, in the sense that an order that is final in one tribunal may be appealed to another. Majority opinion at ¶ 15. Nonetheless, in construing
{¶ 49} That analysis, however, depends on reading
{¶ 50} That is the case here. In statutes expressing the effect of a final decision, the General Assembly—throughout the Revised Code and within
{¶ 51} And because the majority reads
{¶ 52} “[T]his court has long recognized that the canon ’expressio unius est exclusio alterius’ is not an interpretive singularity but merely an aid to statutory construction, which must yield whenever a contrary legislative intent is apparent.” Baltimore Ravens, Inc. v. Self-Insuring Emp. Evaluation Bd., 94 Ohio St.3d 449, 455, 764 N.E.2d 418 (2002). There is a well-established meaning of “final” in this context, which the General Assembly consistently uses in statutes relating to administrative appeals. The General Assembly also consistently uses express language when creating an exception to an otherwise-available appeal. After all, ”expression unius est exclusio alterius is a double-edged sword.” Setser v. United States, 566 U.S. 231, 238, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012). And while
{¶ 53} For these reasons, the negative inference drawn by the majority has too little heft to demonstrate that the General Assembly must have meant to except an adverse funding determination by implication from the express right to appeal from the state board‘s final adjudication orders. See United States v. Vonn, 535 U.S. 55, 65, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), quoting Burns v. United States, 501 U.S. 129, 136, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991) (” ‘An inference drawn from congressional silence certainly cannot be credited when it is contrary to all other textual and contextual evidence of congressional intent’ “).
{¶ 54} Rather, the General Assembly enacted statutes providing that all the state board‘s final adjudication orders are appealable, and the state board‘s adverse funding determination is an adjudication order that
{¶ 55} This conclusion is consistent with our decision in Brookwood Presbyterian Church, 127 Ohio St.3d 469, 2010-Ohio-5710, 940 N.E.2d 1256. At issue in that case was
{¶ 56} Brookwood Presbyterian Church also distinguished decisions from lower appellate courts’ holdings that a statute‘s characterization of an administrative body‘s decision as “final” precludes review through an
{¶ 57} Because
{¶ 58} Here, the state board issued a final order directing ECOT to repay $60,350,791 that it had received over the 2015-2016 school year and directing the department to collect the overpayment. ECOT had the right to pursue an administrative appeal as provided by
{¶ 59} 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. We granted the state board‘s motion to dismiss ECOT‘s mandamus action, in which it asserted that ECOT had an adequate remedy by way of this administrative appeal. See State ex rel. Electronic Classroom of Tomorrow v. State Bd. of Edn., 150 Ohio St.3d 1426, 2017-Ohio-7567, 81 N.E.3d 1268. And today, the majority holds that ECOT has no right to an administrative appeal, recognizing that a mandamus action will lie to challenge the state board‘s adverse funding determinations in the future. Majority opinion at ¶ 7, fn. 2. But that revelation comes too late for ECOT.
{¶ 60} For these reasons, I would reverse the judgment of the Tenth District Court of Appeals and remand this matter to the Franklin County Common Pleas Court to hear ECOT‘s appeal. Because the majority does not, I dissent.
DONNELLY and STEWART, JJ., concur in the foregoing opinion.
Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Christopher J. Hogan, for appellant.
Organ Law, L.L.P., and Erik J. Clark, for appellees.