[Cite as Autumn Care Center, Inc. v. Todd, 2014-Ohio-5235.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



AUTUMN CARE CENTER, INC.                         :            JUDGES:
                                                 :            Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                      :            Hon. Sheila G. Farmer, J.
                                                 :            Hon. John W. Wise, J.
                                                 :
-vs-                                             :
                                                 :
CAROL TODD, ET AL.                               :            Case No. 14-CA-41
                                                 :
        Defendants-Appellees                     :            OPINION




CHARACTER OF PROCEEDING:                                      Appeal from the Court of Common
                                                              Pleas, Case No. 2014 CV 00090



JUDGMENT:                                                     Affirmed




DATE OF JUDGMENT:                                             November 21, 2014




APPEARANCES:

For Plaintiff-Appellant                                       For Defendants-Appellees

RICK L. BRUNNER                                               ARA MEKHJIAN
PATRICK M. QUINN                                              EMILY PELPHREY
KAITLIN L. MADIGAN                                            30 East Broad Street
35 North Fourth Street                                        26th Floor
Suite 200                                                     Columbus, OH 43215
Columbus, OH 43215
Licking County, Case No. 14-CA-41                                                     2

Farmer, J.

      {¶1}   Appellant, Autumn Care Center, Inc., owns and operates a skilled nursing

home facility.   On January 3, 2013, employees of the Ohio Department of Health,

appellees herein, surveyed the facility to determine if it was in compliance with the

federal requirements for nursing homes participating in the Medicare/Medicaid

programs. Based upon the survey, appellant received citations, two of which appellant

contested, one for hot cereal which was lukewarm and had no flavor, and one for a

dispute which occurred between two residents.

      {¶2}   On January 29, 2014, appellant filed a complaint for declaratory judgment,

seeking a declaration that appellees violated its rights to due course of law and equal

protection under the Ohio Constitution. On March 31, 2014, appellees filed a motion to

dismiss. By judgment entry filed April 30, 2014, the trial court granted the motion and

dismissed the complaint, finding appellant failed to state a claim upon which relief can

be granted and failed to exhaust its administrative processes and remedies.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶4}   "THE TRIAL COURT ERRED IN HOLDING THAT AUTUMN COULD NOT

BRING ITS CLAIMS BEFORE THE COURT BECAUSE THE EQUAL PROTECTION

AND DUE COURSE OF LAW CLAUSES OF THE OHIO CONSTITUTION ARE NOT

SELF-EXECUTING."
Licking County, Case No. 14-CA-41                                                         3


                                             II

       {¶5}   "THE TRIAL COURT ERRED IN HOLDING THAT AUTUMN WAS

REQUIRED TO EXHAUST ITS ADMINISTRATIVE REMEDIES PRIOR TO FILING ITS

COMPLAINT IN THE LICKING COUNTY COURT OF COMMON PLEAS."

                                             I

       {¶6}   Appellant claims the trial court erred in determining the equal protection

and due course of law clauses of the Ohio Constitution are not self-executing, thereby

dismissing its declaratory judgment action under Civ.R. 12(B)(6). We disagree.

       {¶7}   Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.

Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d 228 (1990). A

motion to dismiss for failure to state a claim upon which relief can be granted is

procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey

County Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo

analysis, we must accept all factual allegations of the complaint as true and all

reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber,

57 Ohio St.3d 56 (1991).

       {¶8}   Article I, Section 2, of the Ohio Constitution is the equal protection clause

and states: "All political power is inherent in the people. Government is instituted for

their equal protection and benefit, and they have the right to alter, reform, or abolish the

same, whenever they may deem it necessary; and no special privileges or immunities

shall ever be granted, that may not be altered, revoked, or repealed by the General

Assembly."
Licking County, Case No. 14-CA-41                                                       4


       {¶9}   Article I, Section 16, of the Ohio Constitution is the due course of law

clause and states: "All courts shall be open, and every person, for an injury done him in

his land, goods, person, or reputation, shall have remedy by due course of law, and

shall have justice administered without denial or delay. Suits may be brought against

the state, in such courts and in such manner, as may be provided by law."

       {¶10} In its judgment entry filed April 30, 2014, the trial court dismissed the

declaratory judgment action, stating the following in pertinent part:



              Because Sections 2 and 16 of Article I "are not self-executing

       provision, they do not create independent causes of action. Moreover,

       unlike the federal system where 42 U.S.C. § 1983 creates a private cause

       of action to remedy violations of the United States Constitution, there

       exists no statute in Ohio analogous to Section 1983." PDU [v. City of

       Cleveland, 8th Dist. Cuyahoga No. 81944, 2003-Ohio-3671] at ¶27. Thus,

       Plaintiff fails to state a claim upon which relief can be granted.



       {¶11} The January 29, 2014 declaratory judgment action named individual

employees of the Ohio Department of Health.             The facts claimed the individual

employees, in issuing certain citations to appellant, denied appellant "due course of law

and equal protection of the law." Paragraph 11 of the complaint stated: "On or about

August 29, 2013 a corporate affiliate of Plaintiff, Autumn Health Care of Zanesville, Inc.

filed a suit against the Defendants and others, a copy of which is attached hereto as

Exhibit 1, in which averments of denial of due course of law and equal protection were
Licking County, Case No. 14-CA-41                                                        5


raised." Exhibit 1 is a complaint filed in Muskingum County. Thereafter, appellees

conducted an inspection of appellant's facility and issued the aforementioned citations

(Exhibit 2, attached to the complaint). Appellant filed the action sub judice, seeking to

have the trial court determine the following:



              28.1 That Defendants in dealing with Plaintiff in connection with

       Exhibit 2 through 2.1 to the Plaintiff's Complaint failed to provide and

       afford Plaintiff with due course of law and equal protection of law under

       the Ohio Constitution,

              28.2 That the Defendant named in Exhibit 1 (Defendant Todd)

       knew or had reason to know that she had a conflict of interest in dealing

       with Plaintiff by reason of Exhibit 1;

              28.3 That Defendant named in Exhibit 1 (Defendant Todd) should

       have recused or sought recusal of herself from any involvement with or

       any connection with the investigation which resulted in Exhibits 2 and 2.1.

              28.4 That all Defendants can and will be ordered to afford Plaintiff

       due course of law and equal protection of the law in accordance with the

       Ohio Constitution including but not limited to voiding any action taken by

       any of them in any way connected with the circumstances pled in

       paragraphs 13 through 24 of Plaintiff's Complaint and removing

       themselves     from   any    ongoing     or   future   involvement   with   the

       circumstances pled in paragraphs 13 through 24 of Plaintiff's Complaint or

       in the alternative,
Licking County, Case No. 14-CA-41                                                      6


             28.5 That this Court declare what constitutes due course of law and

      equal protection of law under the Ohio Constitution in Defendants dealing

      with Plaintiff, or in the alternative,

             28.6 That this court declare the rights and responsibilities of the

      parties.



      {¶12} The principle of self-executing and non-self-executing was discussed in

detail by the Supreme Court of Ohio in State ex rel. Russell v. Bliss, 156 Ohio St. 147,

150-152 (1951):



             Although a constitution may be adopted to provide a framework of

      government, granting certain powers to the legislative branch of the

      government and withholding others, many state constitutions have in more

      recent times included therein forms of legislation with such detail of

      operation as to make them self-executing. On this subject, 11 American

      Jurisprudence, 689, Section 72, states as follows: 'When the federal

      Constitution and the first state constitutions were formed, a constitution

      was treated as establishing a mere outline of government providing for the

      different departments of the governmental machinery and securing certain

      fundamental and inalienable rights of citizens, but leaving all matters of

      administration and policy to the departments created by the constitution.

      This form of the organic instrument gave rise to a general presumption

      that legislation is necessary in order to give effect to the provisions of the
Licking County, Case No. 14-CA-41                                                      7


      constitution and that its terms operate primarily as commands to the

      officers and departments of the government. During the last fifty years,

      state constitutions have been generally drafted upon a different principle

      and have often become, in effect, extensive codes of laws intended to

      operate directly upon the people in a manner similar to that of statutory

      enactments. Accordingly, the presumption now is that all provisions of the

      constitution are self-executing. As in the case of the question whether a

      constitutional provision is mandatory or directory, the courts may be

      influenced in interpreting such provisions as self-execution rather than as

      requiring legislation, by the knowledge that if not treated as self-executing,

      the legislature would have the power to ignore and practically nullify the

      directions of the fundamental law.'

             In discussing the tests by which a constitutional provision may or

      may not be construed to be self-execution, the same text, 11 American

      Jurisprudence, 691, Section 74, states as follows: 'One of the recognized

      rules is that a constitutional provision is not self-executing when it merely

      lays down general principles, but that it is self-executing if it supplies a

      sufficient rule by means of which the right which it grants may be enjoyed

      and protected, or the duty which it imposes may be enforced, without the

      aid of a legislative enactment.       Therefore, if a constitutional provision

      either directly or by implication imposes a duty upon an officer, no

      legislation is necessary to require the performance of such duty. Another

      way of stating this general, governing principle is that a constitutional
Licking County, Case No. 14-CA-41                                                        8


      provision is self-executing if there is nothing to be done by the legislature

      to put it in operation. In other words, it must be regarded as self-executing

      if the nature and extent of the right conferred and the liability imposed are

      fixed by the constitution itself, so that they can be determined by an

      examination and construction of its terms, and there is no language

      indicating that the subject is referred to the legislature for action. Thus, a

      constitutional provision which reduces the number of grand jurors from

      sixteen to seven, five of whom must concur in the finding of an indictment,

      is self-executing.    Similarly, a constitutional provision that a corporate

      charter shall be forfeited if certain conditions are not complied with within a

      specified time is self-executing. * * *'



      {¶13} In State v. Williams, 88 Ohio St.3d 513, 2000-Ohio-428, former Chief

Justice Thomas Moyer further elaborated on the differences between self-executing and

non-self-executing provisions. As he noted at 523, the issue involved in self-executing

versus non-self-executing is whether the language of the constitutional guarantee "gives

us a methodology to determine how to accord protection to these rights."

      {¶14} In using this analysis, it is clear that the equal protection and due course

of law clauses in the Ohio Constitution are statements of fundamental ideals upon which

governments are created.       As with Article 1, Section 1, the language in Article I,

Sections 2 and 16, "lacks the completeness required to offer meaningful guidance for

judicial enforcement." Williams at 523. In addition to this explicit guidance given to us

that leads to the conclusion that Article I, Sections 2 and 16, are not self-executing, our
Licking County, Case No. 14-CA-41                                                       9

brethren from the Eighth District in PDU, Inc. v. City of Cleveland, 8th Dist. Cuyahoga

No. 81944, 2003-Ohio-3671, ¶ 21, stated: "The language of Article I, Sections 2, 11,

and 16 is not sufficiently precise to provide clear guidance to the courts with respect to

enforcement of its terms or application of its provisions." The PDU court further stated

at ¶ 27: "Thus, because Sections 2, 11, and 16 of Article I of the Ohio Constitution are

not self-executing provisions, they do not create independent causes of action.

Moreover, unlike the federal system where 42 U.S.C. § 1983 creates a private cause of

action to remedy violations of the United States Constitution, there exists no statute in

Ohio analogous to Section 1983."

      {¶15} Apart from this determination which appellant appears to assent to,

appellant argues the trial court's determination was in error because the action was

initiated under the Declaratory Judgment Act, R.C. Chapter 2721, and in particular, R.C.

2721.03 which states the following:



             Subject to division (B) of section 2721.02 of the Revised Code, any

      person interested under a deed, will, written contract, or other writing

      constituting a contract or any person whose rights, status, or other legal

      relations are affected by a constitutional provision, statute, rule as defined

      in section 119.01 of the Revised Code, municipal ordinance, township

      resolution, contract, or franchise may have determined any question of

      construction or validity arising under the instrument, constitutional

      provision, statute, rule, ordinance, resolution, contract, or franchise and

      obtain a declaration of rights, status, or other legal relations under it.
Licking County, Case No. 14-CA-41                                                        10




       {¶16} Appellant argues as a private business, it may bring a claim under R.C.

2721.03, seeking the trial court to declare its constitutional rights were violated.

Appellant argues it is irrelevant whether Article 1, Sections 2 and 16, are or are not self-

executing.

       {¶17} " 'The essential elements for declaratory relief are (1) a real controversy

exists between the parties, (2) the controversy is justiciable in character, and (3) speedy

relief is necessary to preserve the rights of the parties.' " Aust v. Ohio State Dental Bd.,

136 Ohio App.3d 677, 681 (10th Dist.2000). In addition, a moving party in a declaratory

judgment action must have sufficient standing to bring the action:



              ***Ohio Rev. Code § 2721.03 does not by itself provide a plaintiff

       with the standing to sue, but rather serves as the legal basis for obtaining

       declaratory judgment by a plaintiff who already has standing. See Aarti

       [Hospitality v. City of Grove City, Ohio, 486 F.Supp.2d 696 (S.D.Ohio

       2007)], 486 U.S. at 700 (The statute itself is simply a mechanism through

       which an appropriate plaintiff may proceed, but the statute does not create

       the appropriate plaintiff.); see also Walgash v. Bd. Of Trs. of Monclova

       Twp. Lucas County, No. L-80-105, 1981 WL 5518, at *4 (Ohio App. 6th

       Dist. Mar. 20, 1981) ("While R.C. 2721.03 creates the right to bring a

       declaratory judgment action to determine the validity of an ordinance, the

       requirements of justiciability, including standing and ripeness, must still be

       met before a court can entertain the action.")
Licking County, Case No. 14-CA-41                                                       11




Bridge v. Aames Capital Corporation, N.D.Ohio No. 1:09 CV 2947, 2010 WL 3834059,

*5 (Sept. 29, 2010).



       {¶18} Despite appellant's arguments, the facts in this case do not lead us to the

conclusion that it had standing or that it had pled a justiciable claim.

       {¶19} The complaint does not allege any injury or any punitive action taken by

appellees, state employees. There is no pending action relative to the findings in the

survey. What the complaint does allege is that the named state employees did not do

their jobs. However, no corrective action has resulted from this claimed malfeasance.

Therefore, we conclude no justiciable claim has been raised.

       {¶20} Upon review, we find the trial court did not err in its determination relative

to the Civ.R. 12(B)(6) dismissal on failure to state a claim upon which relief can be

granted.

       {¶21} Assignment of Error I is denied.

                                              II

       {¶22} Appellant claims the trial court erred in finding it had failed to exhaust

administrative remedies.

       {¶23} In its judgment entry filed April 30, 2014, the trial court, after having

determined appellant had failed to state a claim upon which relief can be granted, stated

the following:
Licking County, Case No. 14-CA-41                                                    12


             Further, the damages and harm plaintiff alleges it has been or may

      be subjected to are provided for by state and federal regulations for which

      there are administrative processes and remedies.           Plaintiff has not

      exhausted those remedies. "[N]o one is entitled to judicial relief for a

      supposed or threatened injury until the prescribed administrative remedy

      has been exhausted."***Finally, courts "have uniformly held that actions

      for declaratory judgment and injunction are inappropriate where special

      statutory proceedings would be bypassed." (Citations omitted.)



      {¶24} Per our review of the complaint, we find the issue of exhaustion of

administrative remedies was moot once the trial court concluded appellant had failed to

state a claim upon which relief can be granted.

      {¶25} As the record before the trial court reveals, using the four corners of the

complaint and answer, there is no administrative action involved in the case. There has

been no administrative action taken by the Ohio Department of Health or the U.S.

Department of Health and Human Services relative to appellant's right to be a

Medicare/Medicaid provider.

      {¶26} Federal cases, Autumn Health Care of Zanesville, Inc. v. U.S. Dept. of

Health & Human Services, 959 F.Supp.2d 1044 (S.D.Ohio 2013) and Cathedral Rock of

North College Hill, Inc. v. Shalala, 223 F.3d 254 (6th Cir.2000), are very explicit that

exhaustion of administrative remedies is a predicate to a civil action. Chapter 119

appeals are also explicit as to exhaustion of administrative remedies.
Licking County, Case No. 14-CA-41                                              13


       {¶27} Upon review, we find the issue under this assignment to be moot given

our ruling in Assignment of Error I.

       {¶28} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.


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