P.D., et al. Appellants
COPLEY-FAIRLAWN CITY SCHOOL DISTRICT Appellee
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV 2015-12-5661.
D. WALLACE and DANIEL R. BACHE, Attorneys at Law, for
GISELLE S. SPENCER, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
J. CARR, Presiding Judge.
Appellants, P.D. and J.D., appeal an order of the Summit
County Court of Common Pleas that dismissed their
administrative appeal. This Court reverses.
P.D. and J.D. are the parents of a minor child who was
enrolled at Copley High School during the 2015-2016 school
year. The minor was expelled from school following a
disciplinary incident in November 2015. After the expulsion,
P.D. and J.D. pursued two different administrative remedies:
they appealed the District's denial of a manifestation
determination related to an alleged disability by filing a
due process complaint under Ohio Adm. Code 3301-1-05(K)(7)
and (K)(22), and they appealed the expulsion to the Board of
Education under R.C. 3313.66(E). While the due process
complaint was pending, the Board of Education affirmed the
expulsion, and P.D. and J.D. filed an administrative appeal
in the Summit County Court of Common Pleas under R.C.
3313.66(E) and R.C. Chapter 2506. The trial court determined
that because P.D. and J.D. filed the administrative appeal of
the expulsion determination before the due process
proceedings reached their conclusion, they had failed to
exhaust their administrative remedies. The trial court
dismissed the administrative appeal on that basis, and P.D.
and J.D. filed this appeal.
TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DISMISSED [P.D.
AND J.D'S] APPEAL FOR FAILING TO EXHAUST ADMINISTRATIVE
P.D. and J.D.'s assignment of error is that the trial
court erred by dismissing this administrative appeal on the
basis that they failed to exhaust administrative remedies by
waiting until the due process complaint procedure had reached
its conclusion. This Court agrees.
Under R.C. 2506.04, a trial court considering an
administrative appeal reviews the order at issue to determine
whether it is "unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance
of substantial, reliable, and probative evidence on the whole
record." The scope of this Court's review is more
limited. Smith v. Granville Twp. Bd. of Trustees, 81
Ohio St.3d 608, 613 (1998). When reviewing a trial
court's decision in an administrative appeal, this Court
must ordinarily determine whether, as a matter of law, the
trial court's decision is unsupported by a preponderance
of reliable, probative, and substantial evidence.
Independence v. Office of Cuyahoga Cty. Executive,
142 Ohio St.3d 125, 2014-Ohio-4650, ¶ 14, citing
Kisil v. Sandusky, 12 Ohio St.3d 30, 34 (1984). This
case, however, presents solely a matter of law.
Failure to exhaust administrative remedies is an affirmative
defense in a civil action that must be asserted pursuant to
Civ.R. 8 and Civ.R. 12(H). Jones v. Chagrin Falls,
77 Ohio St.3d 456 (1997), syllabus. The affirmative
defense may be asserted in actions in mandamus, actions
seeking a declaratory judgment, and actions for damages.
Kaufman v. Newburgh Heights, 26 Ohio St.2d 217, 219
(1971). In contrast, the affirmative defense of failure to
exhaust administrative remedies is not available in an
appellate proceeding. An administrative appeal under R.C.
Chapter 2506 is by nature an appeal: the trial court is
charged with reviewing an administrative decision based on
the existing record, absent circumstances described by R.C.
2506.03(A). The trial court's role is to determine
whether the decision "is unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative
evidence on the whole record, " and to "affirm,
reverse, vacate, or modify the order, adjudication, or
decision, or remand the cause to the officer or body appealed
from with instructions to enter an order, adjudication, or
decision consistent with the findings or opinion of the
court." R.C. 2506.04.
P.D. and J.D. did not pursue an action in which the
affirmative defense of failure to exhaust administrative
remedies is available. Instead, they availed themselves of
the administrative appeal provided by R.C. 3313.66(E). The
trial court erred by dismissing the ...