IN THE SUPREME COURT OF OHIO

William L. Ridenour et al.,

V.

Appellants,

Reginald A. Wilkinson, Director, OhioState Department of Rehabilitationand Correction

Appellee.

07-2235On Appeal from the Franklin

County Court of Appeals,

Tenth Appellate District

Court of Appeals

Case No. 07AP-200

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS

WILLIAM L. RIDENOUR, JACK D. LIMLE, AND RALPH J. REECE

William L. Ridenour (#A134-385)Chillicothe Correctional Institution15802 State Route 104NChillicothe, Ohio 45601-0990

Jack D. Limle (#A171-372) Marc DannChillicothe Correctional Institution Attorney General15802 State Route 104NChillicothe, Ohio 45601-0990 Janelle C. Totin (0079338)

Assistant Attorney GeneralRalph J. Reece (#A269-724) Corrections Litigation SectionChillicothe Correctional Institution 150 East Gay Street, 16th Floor15802 State Route 104N Columbus, Ohio 43215-6001Chillicothe, Ohio 45601-0990

APPELLANTS, IN PROPRIA PERSONA

QU-BpPELLEE

GRDD

CLERK OF COURTSUpRET pF OHIO

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................... ii

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES SUBSTANTIAL CONSTITUTIONAL QUESTIONS ......... 1

STATEMENT OF THE CASE AND FACTS .................................... 2

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ......................... 6

Proposition of Law No. I: The Ohio General Assembly has failedto clearly enunciate retroactivity of Section 5120.56 of theOhio Revised Code, therefore, it may not be retroactivelyapplied to Appellants ........................................ 6

Proposition of Law No. II: The Appellants' plea agreements arecontracts between the State and each Appellant who enteredinto a plea agreement and are subject to contract lawstandards, in which the law in effect at the time of eachAppellant's contractual plea agreement is part of the terms ofthe contract, as are the custom and usage of the ODRC reliedupon by the Appellants at the time of their agreements withthe State .................................................... 7

Proposition of Law No. III: The provisions in Section 5120.56of the Ohio revised Code reach back in time before itsenactment and create new liabilities and have a punitiveaffect upon Appellants, violating due process and ex postfacto laws ................................................... 9

CONCLUSION ......................................................... 13

CERTIFICATE OF SERVICE ............................................. 14

TABLE OF AUTHORITIES

Cases Page

Ankrom v. Hageman, Franklin County App. No. 04AP-984, 2005-Ohio-1546,at 427-28 ............... .......................................... 8

Bernier v. Becker, ( 1881), 37 Ohio St. 72, 74 ....................... 7

Bielat v. Bielat, ( 2000), 87 Ohio St.3d 350, 352-353 ....... ......... 10

Calder v. Bull, 3 Dall. 386, 391 (1798) . ............................ 10

California Dept. of Corrections v. Morales, (1995), 514 U.S. 499 .... 10

Deshaney v. Winnebago Cty. Dept. of Soc. Serv., ( 1989), 489 U.S. 189 8

Estelle v. Gamble, 429 U.S. 97 (1976) .. ............................. 8

Kelly v. State, ( 1916), 94 Ohio St. 331, 338-339, 114 N.E. 255 ...... 7

LaSalle, 96 Ohio St.3d at 181, 772 N.E.2d 1172 . ..................... 6, 7

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963) . .............. 12

Miller v. Hixson, (1901), 64 Ohio St. 39, 51 ........................ 10

Nasal v. Dover, 169 Ohio App.3d 262, 862 N.E.2d 571, Ohio App. 2Dist., 2006 ....................................................... 9

Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d1115, at 438 ...................................................... 9

Russell v. Gregoire, 124 F.3d 1079, 1086 ( 9th Cir. 1997) .... ........ 12

Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495 ( 1971) ........... 8

Smith v. Smith, 109 Ohio St.3d 285, 2006-Ohio-2419, at 46 ... ........ 10

State v. Butts, 112 Ohio App.3d 683, 685-686, 679 N.E.2d 1170 ( 1996) 8

State v. Consilio, 114 Ohio St.3d 295, 871 N.E.2d 1167,2007-Ohio-4163, at 110 ............................................ 7

TABLE OF AUTHORITIES (Cont)

Cases Page

State ex rel. Matz v. Brown, 37 Ohio St.3d 279, 281-282, 525 N.E.2d 805 9

State ex rel. Slaughter, 132 Ohio St. at 539, 9 N.E.2d 505 ............ 7

State v. Williams, 103 Ohio St.3d 112, 2004-Ohio-4747, at 47 .......... 10

United States v. Ward, 448 U.S. 242, 248 (1980) ....................... 12

Van Fossen v. Babcock & Wilcox Co., (1988), 36 Ohio St.3d 100, 107,522 N.E.2d 489 ...................................................... 6, 7, 9

Weaver v. Graham, 450 U.S. 24, 33 ..................................... 11

STATUTES, POLICIES, AND ADMINISTRATIVE CODE

R.C. §5120.56 ... ...................................................... passium

Departmental Policy 69-OCH-02 ......................................... 1

Administrative Code §5120-5-13 ........................................ 1

OHIO CONSTITUTION

Article I, §16 ........................................................ 1, 2

Article II, §28 ....................................................... 1, 2

UNITED STATES CONSTITUTION

Article I, §9, cl. 3 .................................................. 1, 2

Article I, §10, cl. 1 ................................................. 1, 2

[NOTE: DECISION OF THE COURT OF APPEALS IS ATTACHED TO APPELLANTS' NOTICE

OF APPEAL, WHICH ACCOMPANIES THIS MEMORANDUM]

MEMORANDUM IN SUPPORT

EXPLANATION OF WHY THIS CASE IS A CASE OF

PUBLIC OR GREAT GENERAL INTEREST AND

INVOLVES SUBSTANTIAL CONSTITUTIONAL QUESTIONS

This cause presents several critical issues concerning the retroactive

application to Appellants of the statutory obligations in Section 5120.56 of

the Ohio Revised Code, and its departmental counterparts in Departmental

Policy 69-OCH-02 and Administrative Code §5120-5-13, violating the plea

contract rights of those with plea agreements with the State, and violating

Appellants' due process and ex post facto rights under the provisions of

Article I, Section 16, Article II, Section 28 of the Ohio Constitution and

Article I, Section 9, Clause 3, Article I, Section 10, Clause 1 of the United

States Constitution.

The decisions of the courts below undermines the Appellants' due process

and ex post facto rights under the Ohio and United States Constitutions, and

ignores the clear precedent established by this Court and the United States

Supreme Court. Furthermore, the decisions below have great general

significance because it undermines the plea agreement practices in Ohio, and

circumvents Appellants' clearly established rights under contract law in Ohio.

The decisions below offends Ohio's longstanding constitutional prohibitions

against the retroactive application of laws which cause a deprivation of

substantive property rights and the United States constitutional prohibition

against ex post facto laws.

The decision of this Court will ultimately affect an estimated 45,000

past and present Ohio prison inmates. The impact of Section 5120.56 of the

Ohio Revised Code has broad and far reaching consequences for these inmates.

The rights and privileges involved in this case should not be left to the

unlettered legal abilities of the Appellants. It will be a grave miscarriage

of justice if this Court allows the rights of those inmates to depend upon the

unskilled arguments of the pro se litigants herein. Appellants submit that

justice will best be served if this Court appoints professional counsel to

represent the Appellants and their issues herein.

These are substantial and important constitutional questions of law

which this Court should determine.

STATEMENT OF THE CASE AND FACTS

On January 26, 2006, seven (7) Ohio prison inmates filed a declaratory

judgment and injunctive relief complaint in the Court of Common Pleas. The

Appellants challenged the retroactive application to them of the statutory

obligations in Section 5120.56 of the Ohio Revised Code, and its departmental

counterparts in Departmental Policy 69-OCH-02 and Administrative Code

§5120-5-13, alleging violations of their plea agreement rights, and each of

Appellants' due process and ex post facto rights under Article I, Section 16

and Article II, Section 28 of the Ohio Constitution, and Article I, Section 9,

Clause 3 and Article I, Section 10, Clause 1 of the United States

Constitution. Based upon the fact that a decision in this case could

potentially affect approximately 45,000 past and present Ohio prison inmates,

Appellants filed a motion for class certification in the trial court.

Each Appellant was incarcerated prior to July 1, 1996. Appellants

asserted in the courts below that an administrative rule, having the force and

operation of a statute, which extinguishes or impair a vested legal

relationship, creates a new obligation, imposes a new duty or attaches a new

disability to a previous transaction, constitutes a retroactive enactment and

results in a deprivation of property without due process. Appellants also

asserted that those inmates with plea agreements have a binding contract with

the State, and such agreements are subject to contract law standards.

Appellants demonstrated below that the law in effect as of the time of their

plea agreements are part of the contract terms, as are the custom and usage of

ODRC relied upon by Appellants at the time of their agreements.

The courts below characterized the monetary charges for health care

services received by Appellants as "less than modest fees." t9owever, the

health care service fees are only the tip of the gigantic iceberg of Section

5120.56 of the Ohio Revised Code. The huge cost debt for incarceration under

this statute is indistinguishable from the fines imposed by trial courts after

criminal convictions. In the pertinent part, R.C. §5120.56 provides:

"(A)(2) 'Cost debt' means a cost of incarceration or supervision

that may be assessed against and collected from an

offender as a debt to the state as described in division

(D) of this section.

(B) The department of rehabilitation and correction may

recover from an offender who is in its custody or under

its supervision any cost debt described in division (D) of

this section. To satisfy a cost debt described in that

division that relates to an offender, the department may

apply directly assets that are in the department's

possession and that are being held for that offender

without further proceedings in aid of execution, and, if

assets belonging to or subject to the direction of that

offender are in the possession of a third party, the

department may request the attorney general to initiate

proceedings to collect the assets from the third party to

satisfy the cost debt.

(D) Costs of incarceration or supervision that may be assessed

against and collected from an offender under division (B)

of this section as a debt to the state shall include, but

are not limited to, all of the following costs that accrue

while the offender is in custody or under the supervision

of the department:

(1) Any user or copayment for services at a detention facility

or housing facility, including, but not limited to, a fee

or copayment for sick call visits;

(2) Assessment for damage to or destruction of property in a

detention facility subsequent to commitment;

(3) Restitution to an offender or to a staff member of a state

correctional institution for theft, loss, or damage to the

personal property of the offender or staff member;

(4) The cost of housing and feeding the offender in a detention

facility;

(5) The cost of supervision of the offender;

(6) The cost of any ancillary services provided to the offender;

(7) The cost of any medical care provided to the offender."

The Ohio Department of Rehabilitation and Correction (ODRC) has

estimated the average cost for incarceration of younger prison inmates to be

approximately $22,000.00 per year for each inmate, and approximately

$155,000.00 per year for each inmate defined as 'elderly.' All Appellants are

elderly inmates. Consequently, the estimated average cost debt for each

Appellant is in excess of $88,500.00 per year. To illustrate the enormous

cost debt accrued by Appellants, Appellant Ridenour has been incarcerated for

over thirty-five years, resulting in a minimum total cost debt for

incarceration of an estimated $2,100,000.00 dollars. This is not an

insignificant sum of money, nor a "less than modest fees" as described below.

There is no rational distinction between criminal fines imposed by trial

courts and the financial liabilities in Section 5120.56 of the Ohio Revised

Code.

The Ohio General Assembly has not expressly stated in plain terms that

Section 5120.56 of the Ohio Revised Code is to be applied retroactively.

The courts below have erred to the prejudice of Appellants by dismissing

their action. Such dismissal constitutes a grave miscarriage of justice.

In support of their position on these issues, the Appellants present the

following argument.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I: The Ohio General Assembly has failed to

clearly enunciate retroactivity of Section 5120.56 of the Ohio Revised

Code, therefore, it may not be retroactively applied to Appellants.

As noted in Van Fossen and LaSalle, the Ohio Supreme Court has distilled

the principles of retrospective and retroactive into a two-part test for

evaluating whether statutes may be applied retroactively. First, the

reviewing court must determine as a threshold matter whether the statute is

expressly made retroactive. LaSalle, 96 Ohio St.3d at 181, 772 N.E.2d 1172,

citing Van Fossen, 36 Ohio St.3d 100, 522 N.E.2d 489, at paragraphs one and

two of the syllabus. The General Assembly's failure to clearly enunciate

retroactivity ends the analysis, and the relevant statute may be applied only

prospectively. Id. If a statute is clearly retroactive, though, the reviewing

court must then determine whether it is substantive or remedial in nature.

LaSalle, at 181, 772 N.E.2d 1172; see also, State v. Consilio, 114 Ohio St.3d

295, 871 N.E.2d 1167, 2007-Ohio-4163, at 410.

A statute must clearly proclaim its own retroactivity to overcome the

presumption of prospective application. Retroactivity is not to be inferred.

Kelly v. State (1916), 94 Ohio St. 331, 338-339, 114 N.E. 255. If the

retroactivity of a statute is not expressly stated in plain terms, the

presumption in favor of prospective application controls. Bernier v. Becker

(1881), 37 Ohio St. 72, 74. Moreover, the General Assembly is presumed to

know that it must include expressly retroactive language to create that

effect, and it has done so in the past. Consilio, at 915; See, e.g., Van

Fossen, 36 Ohio St.3d at 103, 522 N.E.2d 489, quoting then R.C. §4121.80(H),

which stated that it applied to "any action *** pending in any court on the

effective date of this section."; State ex rel. Slaughter, 132 Ohio St. at

539, 9 N.E.2d 505, quoting then G.C. 3496-3, which stated, "The provisions of

this act shall apply to all work-relief employees who are injured *** whether

such injury or death occurs prior to the operative date of this act or

subsequent thereof." Consilio, at Footnote #3.

The language in Section 5120.56 of the Ohio Revised Code clearly does

not expressly state in plain terms that it is retroactive. Therefore, the

provisions of this statute cannot be retroactively applied to Appellants in the

instant case.

Proposition of Law No. II: The Appellants' plea agreements are

contracts between the State and each Appellant who entered into a

plea agreement and are subject to contract law standards, in which

the law in effect as the time of each Appellant's contractual plea

agreement is part of the terms of the contract, as are the custom

and usage of the ODRC relied upon by the Appellants at the time of

their agreements with the State.

The Appellants' plea agreements are contracts between the State and each

Appellant and are subject to contract law standards. State v. Butts, 112 Ohio

App.3d 683, 685-686, 679 N.E.2d 1170 (1996); Santobello v. New York, 404 U.S.

257, 92 S.Ct. 495 (1971); Ankrom v. Hageman, Franklin County App. No.

04AP-984, 2005-Ohio-1546, at ¶27-28. It was the custom and practice of the

ODRC at the time of each Appellant's plea agreement with the State to provide

Ohio prison inmates with health care services without cost to the inmate.

This was a critical condition in the implied terms of Appellants' plea

agreement contracts with the State. Without these conditions and

understanding, Appellants would have insisted on going to trial. No person in

their right mind would blindly agree to such enormous financial liability.

The United States Supreme Court has consistently held that the

government has an obligation to provide medical care to inmates. Estelle v.

Gamble, 429 U.S. 97 (1976); Deshaney v. Winnebago Cty. Dept. of Soc. Serv.

(1989), 489 U.S. 189. If a law creates a new obligation, imposes a new duty

or attaches a new disability in respect to transactions already passed, it

must be deemed to be substantive and therefore subject to the constitutional

provision prohibiting its retroactive application. The provisions in Section

5120.56 of the Ohio Revised Code are substantive because it impairs or takes

away vested rights, affects an accrued substantive right, imposes new and

additional burdens, duties, obligations, and liabilities as to the past

transactions of those Appellants who entered into plea agreements with the

State. Nasal v. Dover, 169 Ohio App-3d 262, 862 N.E.2d 571, Ohio App. 2 Dist.,

2006, quoting Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100,

107, 522 N.E.2d 489.

Ohio law has always considered the right of property to be a fundamental

right. Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115,

at 938. "There can be no doubt that the bundle of venerable rights associated

with property is strongly protected in the Ohio Constitution and must be trod

upon lightly, no matter how great the weight of their forces." Id. In State

ex rel. Matz v. Brown, 37 Ohio St.3d 279, 281-282, 525 N.E.2d 805, the Ohio

Supreme Court held that a later enactment does not attach a new disability to

a past transaction "unless" the past transaction "created a least a reasonable

expectation of finality." When Appellants entered into their plea agreement

contracts with the State, they had reasonable expectations of finality based

upon the implied contract terms. U.S. v. Mooney, 654 F.2d 482, at 486.

Proposition of Law No. III: The provisions in Section 5120.56 of

the Ohio Revised Code reach back in time before its enactment and

create new liabilities and have a punitive affect upon Appellants,

violating due process and ex post facto laws.

The Ohio Constitution prohibits the General Assembly from passing

retroactive laws and protects vested rights from new legislative

encroachments. Smith v. Smith, 109 Ohio St.3d 285, 2006-0hio-2419, at 46,

citing Vogel v. Wells (1991), 57 Ohio St.3d 91, 99. The retroactivity clause

nullifies those new laws that 'reach back and create new burdens, new duties,

new obligations, or new liabilities not existing at the time [the statute

becomes effective]."' Bielat v. Bielat (2000), 87 Ohio St.3d 350, 352-353,

quoting Miller v. Hixson (1901), 64 Ohio St. 39, 51. "Retroactivity is

unconstitutional if it 'takes away or impairs vested rights acquired under

existing laws, or creates a new obligation, imposes a new duty, or attaches a

new disability, in respect to transactions or considerations already past. "'

State v. Williams, 103 Ohio St.3d 112, 2004-Ohio-4747, at ¶7, quoting Van

Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 106; also Bielat, 87

Ohio St.3d at 354.

The United States Constitution prohibits the States from passing any ex

post facto laws. California Dept. of Corrections v. Morales (1995), 514 U.S.

499. The ex post facto clause prohibits States from enacting any law that

"changes the punishment, and inflicts a greater punishment, than the law

annexed to the crime, when committed." Calder v. Bull, 3 Dall. 386, 391

(1798). Thus, almost from the outset, the Supreme Court has recognized that

central to the ex post facto prohibition is a concern for "the lack of fair

notice and governmental restraint when the legislature increases punishment

beyond what was prescribed when the crime was consummated." Weaver v. Graham,

450 U.S. 24, at 30. The presence or absence of an affirmative, enforceable

right is not relevant to the ex post facto prohibition, which forbids the

imposition of punishment more severe than the punishment assigned by law when

the act to be punished occurred. Weaver v. Graham, 450 U.S. 24, at 32-33.

In Black's Law Dictionary, Abridged Sixth Edition (1991), the term

"punishment" essentially means "[a] deprivation of property or some right." To

violate the ex post facto clause, the law inust be applied to events occurring

before its enactment. Weaver v. Graham, 450 U.S. 24, at 29. There is no

dispute between the parties that Section 5120.56 of the Ohio Revised Code has

been retroactively applied to Appellants. Moreover, the enormous financial

liability imposed by Section 5120.56 of the Ohio Revised Code is

indistinguishable from fines imposed against criminal defendants by trial

courts after conviction.

The cornerstone of ex post facto jurisprudence is that a law need not be

retroactive on its face to engage the ex post facto prohibition. Weaver, 450

U.S. 24, at 31. Indeed, it is the "effect," and not the form of the law that

determines whether or not the law has been applied ex post facto. Id., at 31.

The ultimate question for courts to answer when considering whether a

retroactively applicable statute is subject to the constraints of the ex post

facto clause is not whether it "produces some ambiguous sort of

'disadvantage,' *** but *** whether [it] *** increases the penalty by which a

crime i:s punishable." California Dept. of Corr. v. Morales, 514 U.S. 499,

506, at n3 (1995).

Whether a statute should be classified as imposing punishment involves a

two-step inquiry. Courts should first consider whether, when enacting the

statute, the legislature "indicated either expressly or impliedly a preference

for one label or the other." United States v. Ward, 448 U.S. 242, 248 (1980).

If the court concludes that the legislature's intent was punitive, then its

inquiry is at an end. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963).

If the court concludes that the legislature did not intent the statute to be

considered punitive, or that its intent is ambiguous, then the court must

inquire whether the statute is "so punitive either in purpose or effect" that

it should be considered to constitute punishment. Ward, 448 U.S. at 249. This

two-step inquiry is known as the "intent-effects test." Russell v. Gregoire,

124 F.3d 1079, 1086 (9th Cir. 1997).

In Mendoza-Martinez, the supreme Court instructs courts to consider

seven factors when applying the effect prong of the two-step test.

Mendoza-Martinez, 372 U.S. 144, 169 (1963). When this Court applies these

factors to Section 5120.56 of the Ohio Revised Code, it will naturally lead

the Court to conclude that this statute is far too broad and punitive to be

classified as procedural, and it is indeed designed and used to intentionally

increase the punishment of Appellants by imposing enormous financial

liabilities for past criminal convictions. In sum, the Mendoza-Martinez test

leads to the obvious conclusion that the "effect" of Section 5120.56 of the

Ohio Revised Code is sufficiently punitive that notwithstanding the Ohio

General Assembly's ambiguous intent, this statute should be classified as

punitive for ex post facto purposes.

CONCLUSION

Wherefore, based upon the foregoing reasons and authority, Appellants

respectfully urge this Honorable Court to grant them leave to appeal the

decision of the Court of Appeals.

Respectfully submitted,

William L. Ridenour

Jack D. Limle

APPELLANTS, IN PROPRIA PERSONA

[NOTE: DECISION OF THE COURT OF APPEALS IS ATTACHED TO APPELLANTS' NOTICE

OF APPEAL, WHICH ACCOMPANIES THIS MEMORANDUM]

CERTIFICATE OF SERVICE

We, the undersigned, certify that a true and accurate copy of this

Memorandum in Support of Jurisdiction was sent via regular U.S. Mail, postage

prepaid, to counsel for Appellee, Janelle C. Totin (0079338), Assistant

Attorney General, Corrections Litigation Section, 150 East Gay Street, 16th

Floor, Columbus, Ohio 43215-6001, on this day of /(!OUt',w L3 c <=

2007.

V`/,cIG^iLtY+^, d ' ^t ^z € e^ l^Wil-liam L. Ridenour

9^'/ack D. Limle

^.^^,Ralph J. Ree e

APPELLANTS, IN PROPRIA PERSONA

4x

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

William L. Ridenour et al.,

Plai ntiffs-Appella nts,No. 07AP-200

V. (C.P.C. No. 06CVH01-1142)

Reginald A. Wilkinson, Director, OhioState Department of Rehabilitationand Correction,

Defendant-Appellee.

(REGULAR CALENDAR)

.It1D ,M NT ENTRY

For the reasons stated in the opinion of this court rendered herein on

November 8, 2007, having sustained in part and overruled in part plaintiffs' sixth

assignment of error, and having overruled all the remaining assignments of error, it is the

judgment and order of this court that the judgment of the Franklin County Court of

Common Pleas is affirmed, as our disposition of the sixth assignment of error supports

neither reversal nor remand. Costs to plaintiffs.

BRYANT, BROWN & BOWMAN, JJ.

By fJudge Pbggy pl•yant

BOWMAN, J., retired of the Tenth AppellateDistrict, assigned to active duty under authorityof Section 6(C), Article IV, Ohio Constitution.

IN THE COURT OF APPEALS OF Ot11iQ;;_ J i t•i I^ 13

TENTH APPELLATE DISTRICT ^^ v• ^-^i 3

William L. Ridenour et al.,

Plaintiffs-Appellants,No. 07AP-200

V. : (C.P.C. No. 06CVH01-1142)

Reginald A. Wilkinson, Director, OhioState Department of Rehabilitationand Correction,

Defendant-Appellee.

O P I N I O N

Rendered on November 8, 2007

(REGULAR CALENDAR)

William L. Ridenour, Jack D. Limle, Arthur L. Schnipper,Charles E Boussum and Ralph J. Reece, pro se.

Marc Dann, Attorney General, and Janelle C. Totin, forappellee.

APPEAL from the Franklin County Court of Common Pleas.

BRYANT, J.

(11} Plaintiffs-appellants, William L. Ridenour, Jack D. Limle, Arthur L.

Schnipper, George D. Bannister, Charles E. Boussum, Richard S. Wells, and Ralph J.

Reece, all prison inmates proceeding pro se, appeal from a judgment of the Franklin

County Court of Common Pleas granting the Civ.R. 12(C) motion for judgment on the

pleadings of defendant-appellee, Reginald A. Wilkinson, in his capacity as Director of the

No. 07AP-200 2

Ohio State Department of Rehabilitation and Corrections ("ODRC"). Because plaintiffs

allege no claims entitling them to declaratory and injunctive relief, we affirm.

{12) Plaintiffs are prison inmates who were convicted and sentenced for crimes

committed before July 1, 1996. From the beginning of their incarceration until 1998,

plaintiffs received free healthcare from ODRC, including medical and dental services,

over-the-counter ("OTC") medication, and medically related products. Effective March 17,

1998, the General Assembly enacted R.C. 5120.56, a financial responsibility statute

authorizing ODRC to recover costs associated with the supervision and incarceration of

criminal offenders in its custody or under its supervision.

{13} In particular, R.C. 5120.56(D)(1) authorizes ODRC to assess inmates for

"[a]ny user fee or copayment for services at a detention facility or housing facility,

including, but not limited to, a fee or copayment for sick call visits[.]" Effective

September 6, 2002, the statute was amended to add subdivision (D)(7), which authorizes

ODRC to collect "[t]he cost of any medical care provided to the offender." As directed in

R.C. 5120.56(F), ODRC adopted rules to implement the medical care cost recovery

provisions of the statute. See Ohio Adm.Code 5120-5-13, effective May 16, 1998, and

Policy Directives 69-OCH-02 and 68-MED-15.

{9[4} Pursuant to the statute, rule, and policy provisions, inmates are notified of

applicable healthcare charges, and procedures are established for (1) ODRC to collect

the charges from inmates' institutional accounts and (2) inmates to contest charges

through informal complaints and an institutional grievance system. R.C. 5120.56(B),

(F)(2)(3), and (I); Ohio Adm.Code 5120-5-13(C), (D) and (E); Policy 68-MED-15.

Pertinently, Ohio Adm.Code 5120-5-13(A) states that "[n]o inmate shall be denied needed

No. 07AP-200 3

medical treatment because of a lack of ability to pay * * * [and] shall receive appropriate

medical care based on their present need, without regard to financial status." See, also,

Policy 68-MED-15 (exempting "indigent inmates" from co-pay fees). ODRC's policy

further provides that inmates receive significant categories of medical services without

charge, including routine physical and dental examinations, preventative health care

education, obstetric care, all mental health care, treatments connected with chronic

medical problems, and follow-up treatments for conditions first diagnosed at an

examination subject to a co-payment. Id.

(15} In 1998, as R.C. 5120.56 and its implementing rule and policy directives

authorize, ODRC began charging and collecting $3 co-payments from plaintiffs and other

inmates for certain medical and dental services and for the cost of OTC medication and

other medically related products, except as specifically exempted or waived by ODRC

rule or policy. See R.C. 5120.56; Ohio Adm.Code 5120-5-13(B); and Policy Directives 69-

OCH-02 and 68-MED-15.

116} On January 26, 2006, plaintiffs filed a complaint for declaratory judgment

and injunctive relief in the Franklin County Court of Common Pleas on behalf of

themselves and a class consisting of all prison inmates in Ohio (collectively, "plaintiffs")

who were imprisoned before July 1, 1996 or upon whom a court imposed a term of

imprisonment for a crime committed before that date. Plaintiffs' complaint challenged the

retroactive application to them of the provisions in R.C. 5120.56, Ohio Adm.Code 5120-5-

13, and ODRC Policy 69-OCH-02 requiring them to make co-payments for healthcare

services and pay costs of OTC medications and other medically related products.

Plaintiffs' complaint alleges the medical care cost recovery provisions, first made effective

No. 07AP-200 4

in 1998, do not apply to them because R.C. 5120.021, as in effect on July 1, 1996,

provided that offenders who were imprisoned before July 1, 1996 are subject to the law in

R.C. Chapter 5120 as it was in effect before, not after, July 1, 1996. Plaintiffs also allege

in their complaint that under ODRC's customs and practices and the law in effect before

July 1, 1996, inmates were provided free medical care and medication, including OTC

medication and medically related products.

(17} Plaintiffs sought a dectaration from the court that ODRC's retroactive

application to plaintiffs of the medical care cost recovery provisions is a material breach of

contract rights of four plaintiffs who entered into plea agreements with the state before

July 1, 1996, and violates constitutional due process and ex post facto rights of all the

plaintiffs. Plaintiffs requested the court to enjoin ODRC from charging and collecting

healthcare co-payments and fees from plaintiffs.

(y[S} On May 17, 2006, ODRC filed a motion for judgment on the pleadings

pursuant to Civ.R. 12(C) contending plaintiffs' complaint fails to state a claim upon which

relief can be granted. ODRC argued nothing in R.C. 5120.021 prevents it from charging

and collecting healthcare co-payments and fees frorri inmates incarcerated for crimes

committed before July 1, 1996.

{19} In its February 9, 2007 decision, the trial court observed that R.C. 5120.021

was amended effective May 18, 2005, modifying the statute's existing provisions and

adding division (C). According to that amendment, "[n]othing in this section limits or

affects the applicability" of any provision in R.C. Chapter 5120, "as amended or enacted

on or after July 1, 1996, that pertains to an issue' other than the duration or potential

No. 07AP-200 5

duration of incarceration or supervised release, to persons in custody or under the

supervision of the department of rehabilitation and correction."

fy[10} Following Woods v. Ohio Dept of Rehab. & Corr. (Mar. 7, 2006), C.C. No.

2003-08410, 2006-Ohio-1800, and Gilbert v. Wilkinson (July 24, 2006), Franklin Cty. C.P.

No. 06CVH02-1864, the trial court held that R.C. 5120.021, as amended, does not

preclude ODRC from charging and collecting healthcare co-payments and fees from

plaintiffs because "these items do not pertain to the duration or potential duration of

incarceration or supervised release [of plaintiffs]." The trial court determined that division

(C) of the statute clarifies the General Assembly's intent that R.C. 5120.021, as amended,

applies retroactively and does not affect medical co-pays.

{111} Concluding the bases of plaintiffs' claims "have no grounding in fact or law"

and each of plaintiffs' claims arises from their "erroneous belief that the retroactive

application of R.C. 5120.56 is a violation of their rights[,]" the court dismissed plaintiffs'

complaint, granted ODRC's motion for judgment on the pleadings, and deemed moot any

remaining motions.

(112} Plaintiffs appeal, assigning the following errors:

ASSIGNMENT OF ERROR I:THE LOWER COURT ERRED TO THE PREJUDICE OFTHE APPELLANTS IN FINDING THAT APPELLANTS'CLAIMS HAVE NO GROUNDING IN FACT OR LAW, ANDTHEREFORE, APPELLANTS HAVE NO RIGHT TOMAINTAIN AN ACTION PURSUANT TO THEDECLARATORY JUDGMENT ACT.

ASSIGNMENT OF ERROR NO. II:THE TRIAL COURT ERRED TO THE PREJUDICE OFAPPELLANTS IN FAILING TO PROPERLY CONSIDERCONTROLLING CASE LAW AUTHORITY FROM THE

No. 07AP-200 6

TENTH DISTRICT OF OHIO AND THE UNITED STATESSUPREME COURT.

ASSIGNMENT OF ERROR NO. III:THE TRIAL COURT ERRED TO THE PREJUDICE OFAPPELLANTS IN FAILING TO PROPERLY APPLY THESTANDARD OF REVIEW REQUIRED BY OHIO CIVIL RULE12 IN CONSIDERING THE APPELLEE'S MOTION FORJUDGMENT ON THE PLEADINGS AND THAT, IN EFFECT,THE COURT CONVERTED THE MOTION TO A SUMMARYJUDGMENT MOTION WITHOUT GIVING APPELLANTSNOTICE OR AN OPPORTUNITY TO PRESENT RELEVANTMATERIALS:

ASSIGNMENT OF ERROR NO. IV:THE TRIAL COURT ERRED TO THE PREJUDICE OFAPPELLANTS IN ADMITTING HEARSAY EVIDENCE INVIOLATION OF THE PROVISIONS OF EVIDENCE RULE802, WHEN THE TRIAL COURT ACCEPTEDDEFENDANT'S ALLEGATIONS THAT "NO INMATE ISDENIED MEDICAL SERVICES BECAUSE OF HIS OR HERINABILITY TO PAY THE CO-PAY," AND IF THE INMATEDOES NOT HAVE MONEY, "THE DEFENDANTREPRESENTS TO THE COURT THAT THE FEES AREWAIVED." UPON ACCEPTING THESE ALLEGATIONSFROM THE DEFENDANT, THE TRIAL COURT ISREQUIRED, UNDER CIVIL RULE 12 TO TREATDEFENDANT'S MOTION AS A MOTION FOR SUMMARYJUDGMENT AND GIVE APPELLANTS NOTICE AND AREASONABLE OPPORTUNITY TO PRESENT ALLMATERIALS MADE PERTINENT TO SUCH MOTION BYCIV.R. 56.

ASSIGNMENT OF ERROR NO. V:THE TRIAL COURT'S FAILURE TO CONDUCT ATEMPORARY RESTRAINING ORDER AND PRELIMINARYINJUNCTION HEARING PRIOR TO ITS DECISION ONAPPELLEE'S MOTION FOR JUDGMENT ON THEPLEADINGS DENIES APPELLANTS THE PROCEDURALDUE PROCESS THEY ARE GUARANTEED UNDERARTICLE I, SECTION 16 OF THE OHIO CONSTITUTIONAND THE FOURTEENTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION.

No. 07AP-200 • 7

ASSIGNMENT OF ERROR NO VI:THE TRIAL COURT ABUSED ITS DISCRETION INRELYING UPON AND FINDING THE FACTS OF WOODS V.ODRC, COURT OF CLAIMS, CASE NO. 2003-08410, 2006-OHIO-1800, AND GILBERT V. WILKINSON (JULY 24, 2006),FRANKLIN COUNTY COURT OF COMMON PLEAS, CASENO. 06CVH02-1864, TO BE CONTROLLING ANDDETERMINATIVE CASE LAW AUTHORITY FORAPPELLANTS' FACTS AND CLAIMS.

ASSIGNMENT OF ERROR NO. VIi:THE TRIAL COURT ABUSED ITS DISCRETION IN FAILINGTO PROPERLY CONSIDER APPELLANT RIDENOUR'SMOTION FOR CLASS CERTIFICATION FIRST IN ORDER,DESPITE THE FACT THAT THE MOTION FOR CLASSCERTIFICATION WAS FILED IN THE TRIAL COURT WELLBEFORE APPELLEE'S MOTION FOR JUDGMENT ON THEPLEADINGS, AND MOREOVER, THE TRIAL COURTFAILED TO FORMALLY ADDRESS FACTORS LISTED INCIVIL RULE 23 IN DECIDING TO RENDER THE MOTIONFOR CLASS CERTIFICATION AS MOOT.

ASSIGNMENT OF ERROR NO. VIII:THE TRIAL COURT ERRED TO THE PREJUDICE OFAPPELLANTS BY DETERMINING THAT APPELLANTRIDENOUR'S MOTION FOR TEMPORARY RESTRAININGORDER AND PRELIMINARY INJUNCTION IS MOOTWITHOUT FIRST CONSIDERING THE EXCEPTION TOTHE MOOTNESS DOCTRINE.

ASSIGNMENT OF ERROR NO. IX:THE TRIAL COURT ERRED TO THE PREJUDICE OFAPPELLANTS BY MISCONSTRUING THE FACTS IN THEIRCOMPLAINT IN FINDING THAT EACH APPELLANTENTERED INTO A PLEA AGREEMENT.

ASSIGNMENT OF ERROR NO. X:THE TRIAL COURT COMMITTED PLAIN ERROR BYSUSTAINING DEFENDANT'S MOTION FOR JUDGMENTON THE PLEADINGS WHILE THE ISSUES INAPPELLANTS' COMPLAINT ARE CLEARLY DRAWN, ANDTHE QUESTIONS OF FACT ARE UNRESOLVED BY THEOPENING STATEMENTS OF THE PARTIES.

No. 07AP-200 8

{113} Several of plaintiffs' assignments of error are interrelated. We combine and

address plaintiffs' assignments of error in such order as facilitates our analysis of the

issues.

(114} Initially, plaintiffs assert the trial court erred in concluding they cannot

maintain an action for declaratory judgment and injunctive relief because their retroactivity

claims under R.C. 5120.56 "have no grounding in fact or law" and thus entitle ODRC to

judgment on the pleadings. Plaintiffs argue the trial court, in entering judgment on the

pleadings, essentially found plaintiffs cannot maintain their declaratory judgment action

because no real "controversy" exists. Plaintiffs contend a real controversy exists in this

case because the pleadings clearly draw the issues for decision and questions of material

fact remain, precluding entry of judgment.

1115} A declaratory judgment action is a civil proceeding that provides a remedy

in addition to other available legal and equitable remedies. Curtis v. Ohio Adult Parole

Auth., Franklin App. No. 04AP-1214, 2006-Ohio-15, at 125, citing Fugett v. Ghee,

Franklin App. No. 02AP-618, 2003-Ohio-1510, at 115. To maintain an action for

declaratory judgment, a real controversy must exist between the parties that is justiciable

in character and necessitates speedy relief to preserve the rights of the parties that may

otherwise be impaired or lost. Id. A "controversy" exists where there is a genuine dispute

between parties with adverse legal interests; a "justiciable issue" requires the existence of

a legal interest or right. Nitl v. Croft Franklin App. No. 05AP-424, 2005-Ohio-6885, at 112;

Curtis, supra, citing Festi v. Ohio Adult Parole Auth., Franklin App. No. 04AP-1372, 2005-

Ohio-3622, at ¶11.

No. 07AP-200 9

{116} Civ.R. 12(C) states that "[a]fter the pleadings are closed but within such

time as not to delay the trial, any party may move for judgment on the pleadings." A

Civ.R. 12(C) motion for judgment on the pleadings presents only questions of law.

Footbank, Inc. v. CompuServe, Inc. (2000), 138 Ohio App.3d 801, 807, appeal not

allowed, 90 Ohio St.3d 1493. In reviewing the trial court's decision to grant such a motion,

this court conducts a de novo review of the legal issues without deference to the trial

court's determination. Id. Determination of a motion for judgment on the pleadings is

restricted solely to the allegations in the pleadings, as well as any material incorporated

by reference or attached as exhibits to those pleadings. Curtis, supra, at ¶24, citing

Drozeck v. Lawyers Title Ins. Corp. (2000), 140 Ohio App.3d 816, 820; Peterson v.

Teodosio (1973), 34 Ohio St.2d 161, 165; Civ.R. 7(A) and 10(C).

{117} Dismissal of a complaint is appropriate under Civ.R. 12(C) where,

construing all material allegations in the complaint along with all reasonable inferences

drawn therefrom in favor of the nonmoving party, the court finds that the plaintiffs can

prove no set of facts in support of their claim that would entitle them to relief. State ex rel.

Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570. Thus, a court may

grant a Civ.R. 12(C) motion only if no disputes of material fact exist and the pleadings

demonstrate that the movant is entitled to judgment as a matter of law. Id.

(118} Notably, although plaintiffs argue the amendments to R.C. 5120.021 are

irrelevant, they do not challenge on appeal the trial court's determination that the medical

care cost recovery provisions in R.C. 5120.56, Ohio Adm.Code 5120-5-13, and Policy 69-

OCH-02 apply retroactively. Rather, in their sixth assignment of error plaintiffs contend

the trial court erred in entering judgment against them, in reliance upon Woods and

No. 07AP-200 10

Gilbert supra, before deciding issues that the pleadings clearly draw: whether plaintiffs'

plea agreements were breached and whether their constitutional due process and ex post

facto rights were violated through the retroactive application of the provisions. Plaintiffs

argue the trial court erred first by failing to fully address their breach of contract claim and

whether retroactive application of the medical care cost recovery provisions breaches

contractual rights of four plaintiffs who entered into plea agreements with the state before

the provisions were enacted. They contend the court erred further by failing to give any

consideration to plaintiffs' due process and ex post facto claims.

{119} Our review of the trial court's decision reveals the trial court failed to fully

consider and decide plaintiffs' breach of contract, due process, and ex post facto claims

alleged in their complaint. Plaintiffs' sixth assignment of error is thus sustained to the

extent the trial court relied on Woods and Giibert in entering judgment without resolving

all of plaintiffs' claims. However, a remand for the trial court to resolve plaintiffs' claims is

unnecessary because this court conducts a de novo review of the legal issues and the

allegations in the pleadings to determine whether dismissal of plaintiffs' complaint is

appropriate under Civ.R. 12(C). Thus, we are able to determine on appeal whether

plaintiffs have presented any claim in their complaint entitling them to declaratory or

injunctive relief. Peterson; Curtis; Midwest Pride IV, supra. We address each of plaintiffs'

claims in turn.

1. Breach of Contractual Rights under Plea Agreements

{$20} Plaintiffs' breach of contract claim, reduced to its essence, alleges four

plaintiffs entered into contractual plea agreements with the state prior to 1996 in reliance

on the law and ODRC's custom and practice at the time to provide free healthcare and

No. 07AP-200 11

medication to prisoners. Plaintiffs allege ODRC breached the plaintiffs' plea agreements

each time since 1998 it required them to pay healthcare co-pays and fees pursuant to

R.C. 5120.56, Ohio Adm.Code 5120-5-13, and ODRC Policy 69-OCH-02. Notably,

plaintiffs' complaint contains no allegation that ODRC denied appropriate or needed

healthcare or medication to inmates who lack an ability to pay. Furthermore, plaintiffs do

not dispute that under its policy and practice ODRC (1) provides inmates with appropriate

medical care based on their present need regardless of their ability to pay for the care, (2)

exempts indigent inmates from co-pay fees, and (3) provides significant categories of

medical services to all inmates without charge. Ohio Adm.Code 5120-5-13(A); ODRC

Policy 68-MED-15.

(1211 Plaintiffs contend in their second assignment of error the trial court ignored

controlling case law when it dismissed their claim for breach of contractual rights under

plea agreements, summarily concluding that each of plaintiffs' claims has "no grounding

in fact or law" and "arises from the plaintiffs' erroneous belief that the retroactive

application of R.C. 5120.56 is a violation of their rights." Plaintiffs are correct that a plea

agreement is a contract between the state and a defendant that is subject to contract law

standards, and the law in effect at the time a plea agreement is entered is part of the

contract. Ankrom v. Hageman, Franklin App. No. 04AP-984, 2005-Ohio-1546, at ¶27-28;

State v. Butts (1996), 112 Ohio App.3d 683, 685-686; Santobello v. New York (1971), 404

U.S. 257. See, also, Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456, 2002-Ohio-

6719. Plaintiffs, however, are incorrect in asserting that, under the law in effect at the time

the four plaintiffs entered into their plea agreements in this case, the state was obligated

by law to provide incarcerated inmates with free healthcare and medication.

No. 07AP-200 12

[122} As support for their contention that the law prior to 1996 required ODRC to

provide incarcerated inmates with free healthcare and medication, plaintiffs rely on the

United States Supreme Court decisions in Estelle v. Gamble (1976), 429 U.S. 97 and

DeShaney v. Winnebago Cty. Dept. of Soc. Serv. (1989), 489 U.S. 189. As authority in

Ohio, plaintiffs rely on R.C. 2921.44(C)(2), State ex rel. Carter v. Schotten (1994), 70

Ohio St.3d 89, and Ankrom, supra. Plaintiffs' reliance is unavailing because none of these

authorities holds that incarcerated inmates have a constitutional or legal entitlement to

free healthcare.

11231 In Estelle, at 103-104, 105, the United States Supreme Court held the

government has an "obligation to provide [adequate] medical care for those whom it is

punishing by incarceration," reasoning "'[i]t is but just that the public be required to care

for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself[,]' "

quoting Spicer v. Williamson (1926), 191 N.C. 487, 490. In DeShaney, and Helling v.

McKinney (1993), 509 U.S. 25, 32, the court commented that pursuant to its decision in

Estelle the government has a duty to provide adequate medical care. Other federal courts

have reached similar conclusions. See, e.g., Hollenbaugh v. Maurer (N.D.Ohio 2005),

397 F.Supp.2d 894, 903, affirmed (C.A.6, 2007), 221 Fed.Appx. 409, and Danese v.

Asman (C.A.6, 1989), 875 F.2d 1239, 1243, certiorari denied, 494 U.S. 1027 (recognizing

that anyone who is incarcerated has a due process right to adequate medical care);

Reynolds v. Wagner (C.A.3, 1997), 128 F.3d 166, 174 (determining Estelle held "a state

must provide inmates with basic medical care").

(124} Noting the states should decide what constitutes adequate medical care for

their prisoners, the United States Supreme Court observed in Estelle that "contemporary

No. 07AP-200 13

standards of decency" are manifested in legislation and regulations the states adopt

"which specify, in varying degrees of detail, the standards of inedical care to be provided

to prisoners." Estelle, at 103-104, fn. 8. The court did not expressly tackle whether states

must provide free healthcare to inmates. But, see, City of Revere v. Massachusetts Gen.

Hosp. (1983), 463 U.S. 239, 245, fn. 7 (noting "[n]othing we say here affects any right a

hospital or government entity may have to recover from a detainee the cost of medical

services provided to him").

{125} Other federal courts, however, addressed the issue. In Reynolds, the

federal court found "there is nothing unconstitutional about a program that'require[s] that

inmates with adequate resources pay a small portion of their medical care.' " id. at 174,

quoting the district court in Reynolds (E.D.Pa.1996), 936 F.Supp 1216, 1224. The federal

appellate court concluded "such a requirement simply represents an insistence that the

prisoner bear a personal expense that he or she can meet and would be required to meet

in the outside world." Reynolds, at 174. See, also, Martin v. Debruyn (N.D.Ind.1995), 880

F.Supp. 610, 614 (stating "[n]othing `'' requires a state to provide an inmate, free of

charge, with a necessary commodity that would not be free outside the prison walls and

which the inmate has the legal means to obtain"); Bihms v. Klevenhagen (S.D.Tex.1996),

928 F.Supp. 717, 718 (concluding that "[i]f the inmate can pay for his medical care, then

the state may require reimbursement"); Shapley v. Nevada Bd. of State Prison Commrs.

(C.A.9, 1985), 766 F.2d 404, 408 (finding no violation under Estelle in charging an inmate

$3 for every medical visit where there is no allegation that prison officials denied medical

care to inmates who were unable to pay).

No. 07AP-200 14

{1261 Contrary to plaintiffs' contention, the Ohio General Assembly did not

statutorily obligate the state to provide incarcerated inmates with free healthcare when the

four plaintiffs entered into the plea agreements at issue here. Rather, since 1974, R.C.

2921.44(C)(2) has required ODRC "to provide persons confined in [a] detention facility

with adequate food, clothing, bedding, shelter, and medical attention." In Carter, the

Supreme Court of Ohio held the state has a duty under the statute to provide incarcerated

inmates with adequate clothing, one of the basic human needs identified in the statute. Id.

The court did not hold that inmates should never bear any cost, if they were financially

able to do so, of the state's meeting their basic needs.

{127} Plaintiffs' reliance on Ankrom also is unavailing. Ankrom held that offenders

who entered into plea agreements before July 1, 1996 could justifiably expect that the law

then in effect concerning the duration of incarceration and parole eligibility was part of

their contractual plea agreement. See Layne, at ¶28 (holding offenders could justifiably

rely on statutorily based parole eligibility standards in effect when offenders enter plea

agreements). Here, parole eligibility and the duration of incarceration are not at issue.

Additionally, unlike Ankrom, when plaintiffs entered into their plea agreements no statute

was in effect that gave rise to a justifiable expectation of legal entitlement to free

healthcare and medication for the term of their incarcera6on.

{11281 In the final analysis, ODRC was legally obligated under the law in effect

prior to 1996 to provide incarcerated prisoners with adequate, basic healthcare; it was not

legally obligated to provide free healthcare to inmates who had the financial ability to pay

for the care. As a result, plaintiffs entering into plea agreements before 1996 could not

justifiably expect they had a legal entitlement, enforceable as a contractual right, to free

No. 07AP-200 15

healthcare and medication for the term of their incarceration. Moreover, because plaintiffs

did not allege that ODRC denied appropriate or needed healthcare to any inmate who

lacks the financial ability to pay for the care, plaintiffs failed to allege that either before or

after 1996 ODRC breached any legal obligation to provide adequate heafthcare to

incarcerated inmates. Because plaintiffs' claim for breach of contractual rights under plea

agreements presents no controversy that is justiciable in character, they cannot maintain

their declaratory judgment action on this basis. Their second assignment of error is

overruled.

1129} Plaintiffs' ninth assignment of error contends the trial court erred in finding

that "each" of the plaintiffs in this action "pled guilty to criminal charges against them prior

to 1996." Plaintiffs' complaint for declaratory judgment and injunctive relief identifies

seven prison inmates who are plaintiffs in this action, four of whom the complaint

specifically alleges entered into plea agreements with the state prior to 1996. The

complaint contains no allegations regarding the bases for the remaining three plaintiffs'

convictions: whether they were found guilty following bench or jury trials or as the result of

a court's acceptance of guilty or no contest pleas.

(130} Based on the specific allegations in the complaint, the trial court in this case

was mistaken when it stated that all, rather than four, of the plaintiffs entered into plea

agreements with the state prior to 1996. Nevertheless, any error was harmless because

any plaintiff who was not convicted and sentenced as the result of a plea agreement

suffers no prejudice upon the dismissal of plaintiffs' breach of plea agreement claim.

Plaintiffs' ninth assignment of error is accordingly overruled.

No. 07AP-200 16

2. Violation of Constitutional Due Process

(1311 Plaintiffs claim the medical care cost recovery provisions in R.C. 5120.56,

Ohio Adm.Code 5120-5-13, and ODRC Policy 69-OCH-02 are unconstitutionally

retroactive under Section 28, Article lI of the Ohio Constitution because application of the

provisions to plaintiffs deprives them of a property interest without due process by

requiring them to pay for healthcare, OTC medication, and medically related products that

were provided to them without charge before the statute, rule, and policy provisions were

enacted.

(132} Statutes enjoy a strong presumption of constitutionality, and a party seeking

to have a statute declared unconstitutional must prove its unconstitutionality beyond a

reasonable doubt. In re Braydon James, 113 Ohio St.3d 420, 2007-Ohio-2335, at ¶13;

State v. Anderson (1991), 57 Ohio St.3d 168, 171. An appellate court's review of the

constitutionality of a statute is de novo. See State v. Cook (1998), 83 Ohio St.3d 404.

(133} Administrative regulations issued pursuant to statutory authority have the

force of law unless they are unreasonable or conflict with the statute. Youngstown Sheet

& Tube Co, v. Lindley (1988), 38 Ohio St.3d 232, 234. Thus, any prohibition against

retroactive laws pertaining to legislative enactments applies to rules and regulations

promulgated by administrative agencies. See Martin v. Ohio Dept. of Human Serv.

(1998), 130 Ohio App.3d 512 (addressing retroactivity of regulation regarding Medicaid

eligibility); Murphy v. Ohio Dept. of Highway Safety (1984), 18 Ohio App.3d 99 (subjecting

an agency's regulation to retroactivity analysis); Fraternal Order of Police v. Hunter

(1975), 49 Ohio App.2d 185 (finding rule promulgated by administrative agency subject to

prohibitions against retroactive laws).

No. 07AP-200 17

(134} Section 28, Article II of the Ohio Constitution prohibits the General

Assembly from passing retroactive laws and protects vested rights from new legislative

encroachments. Smith v. Smith, 109 Ohio St.3d 285, 2006-Ohio-2419, at ¶6, citing Vogel

v. Wells (1991), 57 Ohio St.3d 91, 99. "The retroactivity clause nullifies those new laws

that 'reach back and create new burdens, new duties, new obligations, or new liabilities

not existing at the time [the statute becomes effective].' " Bielat v. Bielat (2000), 87 Ohio

St.3d 350, 352-353, quoting Miller v. Hixson (1901), 64 Ohio St. 39, 51. "Retroactivity is

unconstitutional if it'takes away or impairs vested rights acquired under existing laws, or

creates a new obligation, imposes a new duty, or attaches a new disability, in respect to

transactions or considerations already past.' " State v. Williams, 103 Ohio St.3d 112,

2004-Ohio-4747, at ¶7, quoting Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio

St.3d 100, 106; Bielat, at 354.

(135} A purely remedial law does not violate Section 28, Article II of the Ohio

Constitution, even when it is applied retroactively. Bielat, supra, citing Cook, at 411.

Generally, laws that relate to procedures are remedial in nature. Cook, supra; Van

Fossen, at 107. Curative laws are a valid form of retroactive, remedial legislation where

"'in the exercise of its plenary powers, the legislature * * * [can] cure and render valid, by

remedial retrospective statutes, that which it could have authorized in the first instance.'

Bielat, at 355-356, quoting Burgett v. Norris (1874), 25 Ohio St. 308, 316.

(136} In Bielat, the Supreme Court of Ohio observed Ohio courts have

consistently held that in order for a retroactive law to unconstitutionally impair a right, "not

just any asserted 'right' will suffice." Id. at 357. The court explained the impaired right

must be a "vested right," an "accrued substantive right," a "substantive right," or a "vested

No. 07AP-200 18

substantive right." Id., citing Cook, at 411, Gregory v. Flowers (1972), 32 Ohio St.2d 48,

paragraph three of the syllabus, Van Fossen, at paragraph four of the syllabus, and State

ex rel. Matz v. Brown (1988), 37 Ohio St.3d 279, 281. Indeed, "where no vested right has

been created, 'a later enactment will not burden or attach a new disability to a past

transaction or consideration in the constitutional sense, unless the past transaction or

consideration "*" created at least a reasonable expectation of finality.' " Cook, at 412,

quoting Matz, supra; Bielat, supra.

(137} Here, the medical care cost recovery provisions are "curative," and

therefore remedial in nature, because in enacting the financial responsibility statute, R.C.

5120.56, the Ohio legislature was merely authorizing something "it could have authorized

in the first instance." Bielat, supra, at 355-356. Plaintiffs had no legal entitlement, and

therefore no vested right, to free healthcare, but they do have a protected property

interest in the funds in their institutional accounts. Hampton v. Hobbs (C.A.6, 1997), 106

F.3d 1281, 1287; Stanley v. Ohio Dept of Rehab. & Con: (S.D.Ohio 2002), No. C2-02-

178; Bailey v. Carter (C.A.6, 2001), 15 Fed.Appx. 245, 251. Thus, plaintiffs are entitled to

due process with respect to any deprivation of their money. Reynolds, supra, at 179,

citing Mahers v. Halford (C.A.8, 1996), 76 F.3d 951, 954, certiorari denied, 519 U.S.

1061.

{138} In this case, plaintiffs are not "deprived" of their property without due

process. The co-payments and fees are deducted from prisoner accounts in exchange for

medical services. Plaintiffs have not alleged that they did not receive healthcare services

for which they are charged, or that the benefit of the healthcare services they receive is

less than the modest fees they are assessed. See Stanley and Bailey, supra (finding

No. 07AP-200 19

Ohio's statute and rule requiring inmates to make a $3 co-payment for medical services if

they have available funds does not deprive the inmates of their property without due

process). Nor do plaintiffs allege they are deprived of procedural due process as a result

of deficient notification procedures or inadequate post-deprivation grievance procedures.

Cf. Bailey, supra; Reynolds, at 179-181.

(139) Because (1) the medical care cost recovery provisions are remedial in

nature, and (2) plaintiffs' allegations do not support a claim that application of the

provisions to plaintiffs deprives them of a property interest without due process, plaintiffs'

due process claim under Section 28, Article II of the Ohio Constitution is without support

in fact or law. Thus, no controversy that is justiciable in character exists concerning

plaintiffs' due process claim, and they are unable to maintain their declaratory judgment

action on this basis.

3. Violation of Ex Post Facto Clause

(140} Plaintiffs claim that retroactive application to them of the medical care cost

recovery provisions in R.C. 5120.56, Ohio Adm.Code 5120-5-13, and ODRC Policy 69-

OCH-02 violates the Ex Post Facto Clause of the United States Constitution because the

provisions are punitive in nature.

t9[41} Section 10, Article I of the United States Constitution prohibits the states

from passing any ex post facto laws. Califomia Dept. of Corrections v. Morales (1995),

514 U.S. 499; Cook, supra, at 414. "[T]he Ex Post Facto Clause applies only to criminal

statutes." Cook, supra, at 415, citing Morales, supra, and Colllins v. Youngblood (1990),

497 U.S. 37, 43. It "is aimed at laws that 'retroactively alter the definition of crimes or

increase the punishment for criminal acts.'" Morales, quoting Collins, supra, citing Calder

No. 07AP-200 20

v. Bull (1798), 3 U.S. [Dall.] 386, 391-392 (opinion of Chase, J.); Beazell v. Ohio (1925),

269 U.S. 167, 169-170; Cook, supra.

{142) The Ohio statute and administrative provisions at issue are not laws

susceptible to ex post facto analysis. Stanley, supra. The statute and regulatory

provisions are not criminal statutes, and the imposition of co-payments and charges for

medical services upon inmates does not redefine their crimes or increase their

punishment for criminal acts. Id.; Bailey, supra (finding R.C. 5120.56 and Ohio Adm.Code

5120-5-13 impose no punishment on inmates and thus do not violate the Ex Post Facto

Clause). See, also, Baker v. Gonzalez (E.D.Ky. 2007), Civil Action No. 06-CV-91-HRW

(finding Kentucky inmate co-payment policy does not constitute "punishment" and is not

an unconstitutional ex post facto law); Harris v. Ozmint (D.S.C. 2006), No. 8:05-2209-

HMH-BHH (South Carolina inmate co-pay program is not an unconstitutional ex post

facto law because "charges for medical services are clearly not punitive in nature").

1143) Plaintiffs' claim alleging a violation of the Ex Post Facto Clause lacks an

arguable basis in law. Stanley,• Bailey, supra. Accordingly, plaintiffs cannot maintain their

declaratory judgment action on this basis because the claim presents no controversy that

is justiciable in character.

11441 Having found plaintiffs cannot maintain their action for declaratory judgment

on their breach of contract, due process, and ex post facto claims, we conclude ODRC

was entitled to judgment on the pleadings. Accordingly, we overrule plaintiffs' first

assignment and overrule the sixth assignment of error in part.

No. 07AP-200 21

4. Procedural Issues

{145} Plaintiffs' seventh assignment of error contends the trial court erred when it

granted judgment on the pleadings before formally addressing the factors listed in Civ. R.

23 and deciding whether class certification is appropriate in this case. Plaintiffs'

contention is without merit.

{146} Although plaintiffs' complaint for declaratory judgment and injunctive relief

contains a count entitled "Class Action," the complaint does not request the court to

certify the action as a class action, and plaintiffs did not subsequently file a motion for

class certification. Because the issue of class certification was not formally before the trial

court for consideration, and the "questions of law or fact common to the class" are without

merit, any error in the trial court's granting judgment on the pleadings without first making

a determination about class certification is harmless. Plaintiffs' seventh assignment of

error is overruled.

(147} In their fifth assignment of error, plaintiffs contend the trial court denied

them procedural due process when it failed to conduct a hearing and render a decision on

plaintiffs' motion for temporary restraining order ("TRO") and preliminary and permanent

injunction, before entering judgment on the pleadings and deeming plaintiffs' motion

moot.

{148} Preliminarily, the record reflects that plaintiffs' motion for TRO and

preliminary and permanent injunction, pending at the time the trial court entered judgment

on the pleadings, was filed on January 23, 2007, well after ODRC filed its motion for

judgment on the pleadings on May 17, 2006. Plaintiffs' motion requested an order

enjoining ODRC from interfering with and retaliating against plaintiffs for participating in

No. 07AP-200 22

the instant litigation. The record is devoid of any indication that plaintiffs requested the

trial court to conduct a hearing on their motion for TRO and injunction. Thus, plaintiffs

arguably cannot now complain that the trial court failed to conduct a hearing on the

motion. See Cavanaugh Bldg. Corp. v. Bd. of Cuyahoga Cty. Commrs. (Jan. 27, 2000),

Cuyahoga App. No. 75607.

{149} Regardless, because a TRO and preliminary and permanent injunction are

at issue, we apply Civ.R. 65, which explicitly addresses these matters. Civ.R. 65 does not

require a court to hold a hearing on a TRO. Civ.R. 65(A); Hohmann, Boukis & Curtis Co.,

L.P.A. v. Brunn Law Firm Co., L.P.A. (2000), 138 Ohio App.3d 693, 698-699. Pursuant to

Civ.R. 65(A) and (B), a court must hold a hearing on a motion for a preliminary injunction

only if a TRO has been granted; a TRO was not granted in this case. Accordingly,

plaintiffs were not entitled to a hearing under Civ.R. 65 on their motion for TRO and

preliminary injunction, and thus have not been denied procedural due process under the

rule.

{150} Additionally, we have concluded plaintiffs' action for declaratory judgment

cannot be maintained because their claims lack merit. Upon dismissal of their declaratory

judgment action, plaintiffs would not be able to show a high probability of success on their

underlying claims, irreparable injury, or service of the public interest by issuing a TRO and

injunction that are predicated on continuance of the underlying litigation. As a result, any

error in the trial court's failing to conduct an evidentiary hearing on plaintiffs' motion for

TRO and injunction prior to entering judgment on the pleadings is harmless. See Johnson

v. Morrrs (1995), 108 Ohio App.3d 343, 352-353; Stanley, supra. Because plaintiffs'

procedural due process rights were not violated when the trial court failed to conduct a

No. 07AP-200 23

hearing or render a decision on plaintiffs' motion for TRO and injunction, we overrule

plaintiffs' fifth assignment of error.

{151} Plaintiffs' eighth assignment of error contends the trial court erred in failing

to examine exceptions to the mootness doctrine before it determined that its decision

granting judgment on the pleadings rendered their motion for TRO and injunction moot.

We decline to address this issue because plaintiffs fail to identify any exception to the

mootness doctrine that applies in this case. App.R. 12(A)(2). Plaintiffs' eighth assignment

of error accordingly is overruled.

{152} In their third and fourth assignments of error, plaintiffs contend the trial court

utilized the wrong standard in deciding a motion for judgment on the pleadings under

Civ.R. 12(C). Specifically, plaintiffs contend the trial court erroneously admitted hearsay

under Evid.R. 802 and considered matters outside the pleadings when it accepted

ODRC's "representations," contained in its memorandum in support of its motion for

judgment on the pleadings, that "no inmate is denied medical services because of his or

her inability to make co-payments" and "fees are waived" if an inmate does not have

money in his institutional account. Plaintiffs argue the trial court, in accepting ODRC's

representations, effectively converted the motion for judgment on the pleading to a motion

for summary judgment without giving plaintiffs notice or an opportunity to respond with

pertinent materials.

(153} Initially, to the extent ODRC's "representations" simply reference Ohio

Adm.Code 5120-5-13(A), adopted under R.C. 5120.56, which states that "[n]o inmates

shall be denied needed medical treatment because of a lack of ability to pay [and

i]nmates shall receive appropriate medical care based on their present need, without

No. 07AP-200 24

regard to financial status," they are accurate. Section (B) of the administrative rule then

states that fees are waived as provided in ODRC's co-payment policy, which expressly

exempts indigent inmates from charges for co-pay fees and reaffirms that no inmate shall

be denied needed health care or treatment because of inability to pay. ODRC Policy 68-

MED-15(VI)(B)(1). Because plaintiffs' complaint challenges the administrative rule, which

expressly references and incorporates ODRC's co-payment policy, the rule and policy

provisions were both properly before the court for its consideration in deciding the motion

for judgment on the pleadings.

(154} Next, even if ODRC's "representations" were meant to reflect how ODRC

applies Ohio Adm.Code 5120-5-13(A) in its institutions, the representations were

irrelevant because plaintiffs did not allege ODRC acted contrary to the "representations."

Plaintiffs' allegations, not ODRC's "representations" were pivotal to determining ODRC's

motion for judgment on the pleadings.

(155} Finally, even if the trial court converted ODRC's motion for judgment on the

pleadings to a motion for summary judgment, plaintiffs were given an opportunity to

respond to the motion. In fact, plaintiffs responded by filing a memorandum contra, but

they did not assert any "representations" in ODRC's memorandum constituted "matters

outside the pleadings" that the court could not consider in deciding the motion for

judgment on the pleadings under Civ.R. 12(C). Because plaintiffs failed to raise this issue

in the trial court at a time when the trial court could have addressed the matter, we deem

the issue waived: Plaintiffs' third and fourth assignments of error are overruled.

{156} Plaintiffs' tenth, and final, assignment of error contends judgment on the

pleadings is precluded because questions of material fact exist that were raised in the

No. 07AP-200 25

pleadings. Plaintiffs, however, do not identify the material facts that purportedly remain in

dispute and would preclude entry of judgment under Civ.R. 12(C). See Midwest Pride tV,

supra. Because plaintiffs fail to identify the specific portions of the record on which their

claim of error is based, we decline to address this assignment of error. App.R. 12(A)(2);

State ex ret. O'Brien v. Viereck (Aug. 13, 1992), Franklin App. No. 92AP-46. Plaintiffs'

tenth assignment of error is overruled.

{157} Although we sustained in part and overruled in part plaintiffs' sixth

assignment of error, for the reasons noted, a reversal and remand are unnecessary.

Having overruled all the remaining assignments of error, we affirm the trial court's entry

granting judgment on the pleadings and dismissing plaintiffs' entire action.

Judgment affirmed.

BROWN and BOWMAN, JJ., concur.

BOWMAN, J., retired of the Tenth Appellate District, assignedto active duty under authority of Section 6(C), Article IV, OhioConstitution.