[Cite as Toledo v. Corr. Comm. of N.W. Ohio, 2017-Ohio-9149.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                    LUCAS COUNTY


City of Toledo                                           Court of Appeals No. L-16-1155

        Appellee                                         Trial Court No. CI0201505017

v.

Corrections Commission of
Northwest Ohio, et al.                                   DECISION AND JUDGMENT

        Appellants                                       Decided: December 20, 2017

                                                *****

        Andy Douglas, Adam W. Loukx, Law Director, and John T. Madigan,
        Senior Attorney, for appellee.

        Marc A. Fishel and Melanie Williamson, for appellants Corrections
        Commission of Northwest Ohio and the Boards of Commissioners of
        Defiance County, Fulton County, Henry County, and Williams County.

        Fritz Byers, for appellant Lucas County Board of Commissioners.

        Julia R. Bates, Lucas County Prosecuting Attorney, John A. Borell,
        Kevin A. Pituch, and Evy M. Jarrett, Assistant Prosecuting Attorneys,
        for appellant Lucas County Sheriff John Tharp.

        Melissa M. Purpura, Director of Law, City of Oregon, for amicus curiae
        city of Oregon.
       Beth A. Tischler, Director of Law, City of Maumee, for amicus curiae city
       of Maumee.

       Leslie B. Brinning, Director of Law, City of Sylvania, for amicus curiae
       city of Sylvania.

       Gallon, Takacs, Boissoneault & Schaffer, Co., LPA, and John M. Roca, for
       amici curae International Union of Police Associations, AFL-CIO, CCNO
       Supervisors Association Local 53, CCNO Corrections Officers Association
       Local 64 and CCNO Case Managers Association Local 79.

                                       *****

       KLATT, J.

       {¶ 1} Defendants-appellants, the Corrections Commission of Northwest Ohio

(“Commission”), the Lucas County Board of Commissioners (“Board”), the Lucas County

Sheriff (“Sheriff”), and the Boards of Commissioners of Defiance County, Fulton County,

Henry County, and Williams County, appeal a judgment entered by the Lucas County

Court of Common Pleas in favor of plaintiff-appellee, the City of Toledo. For the

following reasons, we affirm that judgment.

       {¶ 2} Toledo is the largest municipal corporation within Lucas County, Ohio.

Toledo does not own or operate any type of detention facility. Individuals arrested in

Toledo, who are denied bail or who are unable to make bail, are confined to the Lucas

County Corrections Center (“LCCC”).1 The Sheriff operates the LCCC and has charge of


1
 A court must order the detention of an individual charged with a crime “[i]f [the]
offense is not bailable, if the court denies bail to the accused, or if the accused does not
offer sufficient bail.” R.C. 2937.32.




2.
all individuals confined in it. See R.C. 341.01 (“The sheriff shall have charge of the county

jail and all persons confined therein.”).

       {¶ 3} Generally, if an individual is convicted of a misdemeanor offense by a court

located in Toledo,2 that individual serves any jail sentence imposed at the Corrections

Center of Northwest Ohio (“CCNO”). CCNO is the product of agreements between

Defiance County, Fulton County, Henry County, Lucas County, Williams County, and the

City of Toledo to construct and operate a multicounty-municipal correctional center.

CCNO has operated under successive organizational and operational agreements since

1988. In 2011, the five member counties and Toledo entered into the Fourth Amended and

Restated Organizational and Operational Agreement for the Corrections Commission of

Northwest Ohio’s Multicounty-Municipal Correctional Center (“Fourth Agreement”).

       {¶ 4} Under the Fourth Agreement, the Commission was tasked with the

management, maintenance, operation, occupation, repair, and administration of CCNO.

The Commission consisted of the sheriff and one member of the board of commissioners

from each member county, and the Toledo chief of police and mayor. The Fourth

Agreement required the Commission to appoint an executive director, who was in charge

of CCNO.

       {¶ 5} As mandated by the Fourth Agreement and CCNO’s fiscal agent, each

member had to remit its share of CCNO’s annual operating and capital costs on a quarterly


2
  Both the Toledo Municipal Court and the Lucas County Court of Common Pleas are
located in Toledo.




3.
basis. The amount owed by each member depended on the number of beds reserved by the

member. Toledo reserved 228 beds, or 35.65 percent of the available beds. Thus, Toledo

owed 35.65 percent of CCNO’s annual operating and capital costs. Lucas County, which

reserved 203 beds, owed 31.84 percent of the annual operating and capital costs.

       {¶ 6} The Fourth Agreement permitted the Commission to rent unused beds to

members and non-members. The Commission charged a per diem rate for the rental of

beds. If a member’s unused beds were rented, that member received a credit based on its

percentage of total unused bed space available on a monthly basis. The Commission

entered that credit on the member’s quarterly invoices as an off-set against the member’s

proportional share of the operating and capital costs.

       {¶ 7} Finally, the Fourth Agreement provided that it could be “modified, amended

or supplemented in any respect not prohibited by law upon the approval of the

modification, amendment or supplement by a two-thirds roll call vote of the Commission

representatives and by the governing bodies of at least two-thirds (2/3) of the Members.”

(Commission’s Ex. F, Fourth Agreement, Section 10.) Once approved, the modification,

amendment, or supplement would become binding on the Commission and all members.

       {¶ 8} In 1998, CCNO’s executive director codified the billing rules CCNO used.

However, neither the billing rules nor the successive organizational and operational

agreements addressed how to divide between Lucas County and Toledo the cost of housing

prisoners sentenced to a jail term by a court located in Toledo. In practice, offenders

convicted in the Toledo Municipal Court filled beds Toledo paid for, while offenders




4.
convicted in the Lucas County Court of Common Pleas filled beds Lucas County paid for.3

Toledo challenged this practice in 2014.

       {¶ 9} Toledo’s challenge began because, on October 15, 2014, Toledo’s mayor

directed the Toledo Police Department to stop charging alleged offenders under the Toledo

ordinances if a comparable Revised Code offense existed. This directive constituted a sea

change, as the Toledo Police Department had previously charged misdemeanors mostly

under Toledo’s ordinances. After mandating this change, Toledo’s mayor initiated a

campaign to alter CCNO’s billing practices. Toledo’s mayor urged CCNO’s executive

director to charge Lucas County with the cost of housing all prisoners convicted of a

violation of the Revised Code, regardless of which Toledo-based court sentenced the

prisoner. Under the rule proposed by Toledo’s mayor, Toledo would only have the

responsibility of providing for those few prisoners convicted of violating ordinances for

which there was no Revised Code equivalent.

       {¶ 10} The executive director capitulated. On October 27, 2014, the executive

director adopted the rule that, “[i]f the City of Toledo issues a criminal complaint under the

Ohio Revised Code versus [the] Toledo Municipal Code[,] that charge is billed to Lucas

County.” (Commission’s Ex. K, CCNO Ohio Billing Rules, Rule 13.) CCNO then began

assigning beds based on the type of offense (i.e., an ordinance violation versus a state law



3
  Additionally, offenders sentenced to jail time in the municipal courts of Maumee,
Sylvania, and Oregon occupied Lucas County beds. Maumee, Sylvania, and Oregon are
all municipal corporations located in Lucas County.




5.
violation), instead of the sentencing court (i.e., Toledo Municipal Court versus Lucas

County Court of Common Pleas).

       {¶ 11} As a result of the rule change, offenders who had once filled Toledo beds

began occupying Lucas County beds instead. Lucas County soon developed a need for

more beds than the 203 beds that it had reserved. Toledo, on the other hand, had numerous

empty beds. CCNO began billing Lucas County thousands of dollars, in addition to its

proportional share of costs, for the rental of extra beds. At the same time, CCNO issued

credits to Toledo for the rental of its empty beds to Lucas County.

       {¶ 12} Lucas County resisted this cost transfer. At that time, an ad hoc committee

was drafting the Fifth Amended and Restated Organizational and Operational Agreement

for the Corrections Commission of Northwest Ohio’s Multicounty-Municipal Correction

Center (“Fifth Agreement”). As a result of Lucas County’s efforts, the committee added to

the draft a section stating:

       All Members which are a municipal corporation and operate a municipal

       court established in Section 1901.02 of the Ohio Revised Code bear the

       fiscal responsibility for the costs of incarceration of inmates/prisoners

       originating out of the jurisdiction of their municipal court, regardless of the

       criminal code for which the prisoner is held or sentenced.

(Commission’s Ex. S, Fifth Agreement, Section 7(L).) This section was intended to

reimpose on Toledo the obligation to pay the costs for all prisoners sentenced by the

Toledo Municipal Court, no matter what the nature of the offense charged.




6.
       {¶ 13} At the Commission’s May 27, 2015 meeting, the Commission adopted the

Fifth Agreement. With the exception of one abstention, all of the five counties’

representatives voted in favor of the Fifth Agreement. Toledo’s mayor and chief of police

cast the only dissenting votes. Subsequently, the boards of commissioners of the five

member counties approved the Fifth Agreement. Toledo refused to approve the Fifth

Agreement, and its director of finance did not certify that Toledo possessed, or was in the

process of collecting, the amount required to meet Toledo’s financial obligations under the

Fifth Agreement.

       {¶ 14} On December 7, 2015, Toledo filed an action against the Commission; the

Boards of Commissioners of Defiance County, Fulton County, Henry County, Lucas

County, and Williams County; and the Sheriff. Along with other claims, Toledo sought

declaratory judgments stating that: (1) Lucas County was responsible for the costs of

housing state prisoners,4 regardless of what authority committed the arrest and what

Toledo-based court imposed the sentence, and (2) the Fifth Agreement was not binding on

Toledo. The Commission and each of the named Boards of Commissioners filed

counterclaims against Toledo.

       {¶ 15} The trial court ordered the parties to brief the issues raised by Toledo’s

claims for declaratory judgment. In its briefing, Toledo argued that it only had a statutory

obligation to pay for housing individuals charged and convicted of violations of Toledo’s


4
 In its complaint, Toledo defined “state prisoners” as pretrial detainees and sentenced
misdemeanants who were charged or sentenced under the Revised Code.




7.
ordinances. Toledo maintained that Lucas County was responsible for the costs of

incarcerating those charged and convicted of state law misdemeanors. In response, the

Board and Sheriff asserted that the statutory duty to pay for housing prisoners turned on the

court that adjudicated the prisoners’ cases, not the type of offense. The Board and Sheriff

thus contended that Toledo had to pay to house those prisoners under the jurisdiction of the

Toledo Municipal Court, while Lucas County had the responsibility to pay for housing

prisoners under the jurisdiction of the Lucas County Court of Common Pleas.

       {¶ 16} As to its second claim, Toledo argued that it was bound by the Fourth

Agreement, but not the Fifth Agreement. The Commission5 asserted that Toledo was

obligated to perform under the Fifth Agreement, even though Toledo neither adopted it nor

certified the availability of funds to meet the payment terms contained in it.

       {¶ 17} In a judgment issued June 27, 2016, the trial court granted Toledo summary

judgment on each of its claims. The trial court declared that, “where a municipal police

department arrests, detains and charges an individual pursuant to a violation of state law, it

is the county who is financially responsible for the incarceration of that individual and the

accompanying costs associated therewith.” (June 27, 2016 Order at 5.) The trial court also




5
 The Boards of Commissioners of Defiance County, Fulton County, Henry County, and
Williams County joined the Commission in its trial court and appellate briefing. For the
ease of discussion, we hereinafter will refer to those appellants collectively as “the
Commission.”




8.
declared that the Fifth Agreement did not bind Toledo, and instead, the Fourth Agreement

delineated Toledo’s contractual rights and responsibilities.6

       {¶ 18} The Commission, Board, and Sheriff appealed the June 27, 2016 judgment.

On appeal, the Commission assigns the following errors:

              [1.] The Lucas County Court of Common Pleas erred when it

       granted Partial Summary Judgment to the City and determined the City was

       not bound to the Fifth Amended Agreement.

              [2.] The Lucas County Court of Common Pleas erred when it

       granted Partial Summary Judgment to the City and determined that Ohio

       Revised Code § 307.93 requires unanimous consent of CCNO members to

       amend its Operating Agreement.

       {¶ 19} The Board assigns the following error:

              The trial court erred in entering partial summary judgment in favor

       of Plaintiff-Appellee and against Defendant-Appellant.

       {¶ 20} The Sheriff assigns the following error:

              The Common Pleas Court committed prejudicial error when it

       granted the City of Toledo’s motion for summary judgment and when it

       denied the Sheriff’s motion for summary judgment.




6
  Although claims remain pending below, the trial court included Civ.R. 54(B) language
in its judgment. We, therefore, may review this partial judgment on appeal.




9.
       {¶ 21} We will begin our review with the Board’s and Sheriff’s assignments of

error. Both of these assignments of error challenge the trial court’s conclusion that, under

Ohio law, Lucas County must pay the cost of incarcerating individuals charged with or

convicted of state law misdemeanors, regardless of the court that adjudicates those

individuals’ cases. The Board and Sheriff argue that the trial court’s conclusion is wrong

because the court ignored R.C. 753.02(A). According to the Board and Sheriff, R.C.

753.02(A) imposes upon Toledo the duty to: (1) operate its own detention facility or

contract with Lucas County to house prisoners, and (2) pay for housing all prisoners

charged with or convicted of a misdemeanor in the Toledo Municipal Court. In response,

Toledo asserts that R.C. 753.02(A) is irrelevant.

       {¶ 22} To resolve the parties’ dispute, we must construe the language of R.C.

753.02(A). A question of statutory construction presents an issue of law that appellate

courts review de novo. Lang v. Dir., Ohio Dept. of Job & Family Servs., 134 Ohio St.3d

296, 2012-Ohio-5366, ¶ 12. The goal of statutory construction is to ascertain and give

effect to the General Assembly’s intent. Hulsmeyer v. Hospice of Southwest Ohio, Inc.,

142 Ohio St.3d 236, 2014-Ohio-5511, ¶ 21; Summerville v. Forest Park, 128 Ohio St.3d

221, 2010-Ohio-6280, ¶ 18. In determining that intent, courts first look to the statutory

language and the purpose to be accomplished. Hulsmeyer at ¶ 21. When a statute’s

meaning is clear and unambiguous, courts apply the statute as written. Summerville at

¶ 18. In such a situation, courts have no basis for resorting to rules of statutory

interpretation, as an unambiguous statute is to be applied, not interpreted. Jacobson v.




10.
Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 8. If, however, a statute is ambiguous,

“ ‘courts seek to interpret the statutory provision in a manner that most readily furthers the

legislative purpose as reflected in the wording used in the legislation.’ ” State v. Black, 142

Ohio St.3d 332, 2015-Ohio-513, ¶ 38, quoting State ex rel. Toledo Edison Co. v. Clyde, 76

Ohio St.3d 508, 513 (1996). To discern that purpose, courts may consider several factors,

including the object sought to be obtained, the legislative history, and the consequences of

a particular construction. R.C. 1.49.

       {¶ 23} In its entirety, R.C. 753.02(A) states:

       The legislative authority of a municipal corporation shall provide by

       ordinance for sustaining all persons sentenced to or confined in a prison or

       station house at the expense of the municipal corporation, and in counties

       where prisons or station houses are in quarters leased from the board of

       county commissioners, may contract with the board for the care and

       maintenance of those persons by the sheriff or other person charged with

       the care and maintenance of county prisoners. On the presentation of bills

       for food, sustenance, and necessary supplies, to the proper officer, certified

       by the person whom the legislative authority designates, the officer shall

       audit the bills under the rules prescribed by the legislative authority, and




11.
       draw the officer’s order on the treasurer of the municipal corporation in

       favor of the person presenting the bill.7

       {¶ 24} Initially, we see nothing in the plain language of R.C. 753.02(A) that

requires a municipal corporation to either operate its own detention facility or contract with

the county for the housing of prisoners. Outside of R.C. 753.02(A), the Revised Code

contains multiple statutes governing municipal corporations’ ability to establish and

operate a detention facility. See R.C. 715.16(A) (“Any municipal corporation may:

(A) Establish, erect, maintain, and regulate jails, * * * workhouses, station houses, [and]

prisons * * *.”); R.C. 717.01(F) (“Each municipal corporation may do any of the

following: * * * Construct * * * prisons * * *.”); R.C. 753.21(B) (authorizing the

legislative authority of a municipal corporation to permit the use of certain types of

structures as a minimum security jail). By the repeated use of the word “may,” these

statutes permit, but do not require, a municipal corporation to found and run a detention

facility. See Smucker v. Levin, 113 Ohio St.3d 337, 2007-Ohio-2073, ¶ 14 ‘ “May” is

generally construed to render optional, permissive, or discretionary the provision in which

it is embodied.’ ”). Nothing in R.C. 753.02(A) transforms this statutory authority to




7
 A “station house” is “[a] building for the temporary detention of offenders, attached to or
under the jurisdiction of a police station.” Oxford English Dictionary (3d Ed.2012).




12.
establish a municipal detention facility into a statutory mandate. Rather, the only mandate

in R.C. 753.02(A) is the provision of payment for the sustenance of certain prisoners.8

       {¶ 25} Moreover, R.C. 753.02(A) contains no requirement that a municipal

corporation contract with the county for the detention of prisoners. If the municipal

corporation leases space from the county for a prison or station house, then the municipal

corporation “may contract” with the county for the sheriff to care for and maintain the

prisoners housed in that space. R.C. 753.02(A). Due to the use of “may,” the statute

leaves the option to contract to the municipal corporation’s discretion. See Smucker at

¶ 14. When the municipal corporation choses to enter such a contract, it must pay the

county for the “food, sustenance, and necessary supplies” the sheriff provides to the

prisoners. R.C. 753.02(A).

       {¶ 26} Given the plain language of R.C. 753.02(A), we reject the Board’s and

Sheriff’s contention that the statute compels a municipal corporation to either operate its

own detention facility or contract with the county to house and sustain prisoners. R.C.

753.02(A) does not address the establishment of detention facilities at all, and it permits,

but does not require, a municipal corporation to contract with the county. Accordingly, we

turn to the question of whether R.C. 753.02(A) requires Toledo to assume the costs of

imprisoning individuals charged with or convicted of misdemeanors in the Toledo

Municipal Court.


8
 We discuss below the category of prisoners that municipal corporations must pay to
sustain.




13.
       {¶ 27} Indisputably, by the first clause of the first sentence of R.C. 753.02(A), the

General Assembly imposes a duty on municipal corporations to pay the cost of sustaining

prisoners. The statute, however, is less clear regarding which prisoners municipal

corporations must provide sustenance. Pursuant to the plain language of the statute,

municipal corporations must pay for sustaining “all persons sentenced to or confined in a

prison or station house.” R.C. 753.02(A). If we read this language literally, we would

necessarily conclude that municipal corporations have to shoulder the expense of

sustaining all individuals held in any Ohio prison, including those institutions under the

control of the Department of Rehabilitation and Correction. This reading is implausible,

and consequently, we must delve further into R.C. 753.02(A) to determine its meaning.

See State v. Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, ¶ 47 (“ ‘It is a cardinal rule of

statutory construction that a statute should not be interpreted to yield an absurd result.’ ”);

accord R.C. 1.47(C) (courts must presume that the General Assembly intended a “just and

reasonable result” when enacting a statute).

       {¶ 28} In order to ascertain the meaning of R.C. 753.02(A), we turn to the history of

the statute. The General Assembly first enacted the statutory language that now appears in

R.C. 753.02(A) in 1869 as part of a comprehensive act providing for the organization and

government of municipal corporations. For our purposes, three sections enacted in 1869

are relevant:

                Sec. 215. The council of any city or incorporated village shall have

       power to erect, establish and maintain a prison and one or more watch or




14.
       station houses, as shall be necessary; and such prison, watch or station

       houses shall be under the control of the marshal, or chief of police, under

       such rules and regulations as the council may prescribe.

              Sec. 216. It shall be the duty of the marshal or chief of police to

       provide all persons confined to such prison, watch or station houses, with

       necessary food during such confinement, and to see that such places of

       confinement are kept clean and made comfortable for the inmates thereof.

              Sec. 217. The council shall provide, by ordinance, for sustaining all

       persons sentenced to or confined in such prison at the expense of the

       corporation; and on the presentation of bills for food, sustenance and

       necessary supplies to the proper officer, certified to by such person or

       persons as the council may designate, not exceeding forty cents a day, such

       officer shall audit the same under such rules and regulations as the council

       may prescribe, and draw his order on the treasurer of the corporation in

       favor of the officer presenting such bill.

66 Ohio Laws 185-86.

       {¶ 29} This historical context elucidates the meaning of R.C. 753.02(A). Section

217 of the 1869 act required a municipal corporation to pay for sustaining all persons

sentenced to or confined in “such prison,” i.e., the prison the municipal corporation had the

power to erect, establish, and maintain pursuant to Section 215. Thus, the statute, as




15.
originally passed, required municipal corporations to pay for the sustenance of prisoners

sentenced to or confined in municipal prisons or station houses.

       {¶ 30} Although much of the context that surrounded the 1869 statute has fallen

away, the language of present-day R.C. 753.02(A) corresponds closely with its

predecessor. Moreover, even today, the Revised Code permits municipal corporations to

“[e]stablish, erect, maintain, and regulate * * * station houses [and] prisons.” R.C.

715.16(A). Given the consistency in the relevant statutory language, we conclude that R.C.

753.02(A) serves the same purpose it served when originally enacted. Thus, R.C.

753.02(A) requires a municipal corporation to pay the expense of sustaining those persons

it holds in the prison or station house that it establishes or maintains.9

       {¶ 31} Our conclusion is strengthened by the two cases that have reviewed R.C.

753.02(A) and determined its meaning. In Univ. Hosps. v. Cleveland, 28 Ohio Misc. 134,

138 (C.P.1971), the Cuyahoga County Court of Common Pleas held that R.C. 753.02

“clearly provides that the municipal corporation shall provide for the sustenance of all

persons sentenced to or confined in a municipal prison.” (Emphasis added.) Likewise, the

Ninth District Court of Appeals determined that R.C. 753.02(A) places upon a municipal

corporation “the responsibility of furnishing necessities to persons confined in its prison.”

(Emphasis added.) Akron City Hosp. v. Akron, 9th Dist. No. 12133 (Oct. 30, 1985).



9
  This obligation pertains to a municipal corporation regardless of whether it establishes
and maintains its own prison or station house, or it leases space from the county in which
to establish and maintain a prison or station house.




16.
       {¶ 32} Because R.C. 753.02(A) only requires a municipal corporation to pay for the

sustenance of prisoners detained in its prison or station house, the statute does not become

relevant unless a municipal corporation has a prison or station house. Toledo does not

possess a prison or station house. R.C. 753.02(A), therefore, does not impose any financial

obligations on Toledo.

       {¶ 33} The Board and Sheriff cite multiple cases that they characterize as

supporting their argument that Toledo must pay for the care and sustenance of all prisoners

charged with or convicted of misdemeanors in the Toledo Municipal Court. These cases,

however, conform with our interpretation of R.C. 753.02(A). A decision from this court,

St. Vincent Hosp. & Med. Ctr. v. Shatzer, 6th Dist. No. L-85-150 (Jan. 31, 1986) illustrates

this point.

       {¶ 34} In Shatzer, a prisoner held in the Norwalk City Jail deliberately set a fire,

which seriously burned him. The prisoner received medical treatment at St. Vincent

Hospital, and the hospital sued the city seeking payment for the medical services it

rendered to the prisoner. After quoting R.C. 753.02(A), this court held that Norwalk was

liable for the costs of the prisoner’s medical care because it had exerted actual, physical

dominion and control over the prisoner at the time of his injury.

       {¶ 35} Under our interpretation of R.C. 753.02(A), a municipal corporation must

pay to sustain the prisoners held in its prison or station house. In Shatzer, we required

Norwalk to pay for the medical care of a prisoner because that prisoner was held in

Norwalk’s jail when he suffered injury. Our conclusion in Shatzer that care is incident to




17.
custody is completely consistent with a municipal corporation’s duty, under R.C.

753.02(A), to assume the cost of providing sustenance for the prisoners it holds in its

prison or station house.

       {¶ 36} Finally, the rules of statutory interpretation preclude us from adopting the

Board’s and Sheriff’s interpretation of R.C. 753.02(A). Both the Board and Sheriff

construe R.C. 753.02(A) to obligate a municipal corporation to pay the cost of sustaining

prisoners charged with or convicted of misdemeanors in the municipal court located in the

municipal corporation. However, nothing in the text of R.C. 753.02(A) premises a

municipal corporation’s payment obligation on the kind of court that adjudicates prisoners’

cases. Therefore, to interpret R.C. 753.02(A) as the Board and Sheriff advocate, we would

have to add language to the statute. We cannot do this. See In re Application of Columbus

S. Power Co., 147 Ohio St.3d 439, 2016-Ohio-1608, ¶ 49 (“But in construing a statute, we

may not add or delete words.”); Hulsmeyer, 142 Ohio St.3d 236, 2014-Ohio-5511, at ¶ 23

(“[C]ourt[s] must give effect to the words used, making neither additions nor deletions

from words chosen by the General Assembly.”).

       {¶ 37} In sum, we conclude that R.C. 753.02(A) does not require Toledo to pay for

housing prisoners charged with or convicted of misdemeanors in the Toledo Municipal

Court. We, therefore, turn our attention to R.C. 1905.35, the statute that Toledo claims

resolves how to divide imprisonment costs between it and Lucas County.




18.
       {¶ 38} Pursuant to R.C. 1905.35:

       Imprisonment under the ordinances of a municipal corporation shall be in

       the workhouse or other jail of the municipal corporation. Any municipal

       corporation not provided with a workhouse, or other jail, may, for the

       purpose of imprisonment, use the county jail, at the expense of the

       municipal corporation, until the municipal corporation is provided with a

       prison, house of correction, or workhouse. Persons so imprisoned in the

       county jail are under the charge of the sheriff. Such sheriff shall receive

       and hold such persons in the manner prescribed by the ordinances of the

       municipal corporation, until such persons are legally discharged.

“Imprisonment,” as used in R.C. 1905.35, means “being imprisoned under a sentence

imposed for an offense or serving a term of imprisonment, prison term, jail term, term of

local incarceration, or other term under a sentence imposed for an offense * * *.” R.C.

1.05(A).

       {¶ 39} Under the plain language of R.C. 1905.35, a municipal corporation must pay

the cost of housing persons convicted of a city ordinance, either by incarcerating those

persons in its own detention facility or reimbursing the sheriff for maintaining such persons

in the county jail. Moreover, by explicitly requiring municipal corporations to pay for the

incarceration of ordinance violators, R.C. 1905.35 implicitly relieves municipal

corporations from the obligation to pay for incarcerating state law violators. See Myers v.

Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, ¶ 24 (“The canon expressio unius est




19.
exclusio alterius tells us that the express inclusion of one thing implies the exclusion of the

other.”).

       {¶ 40} As applied to the case at bar, R.C. 1905.35 allocates to Toledo the obligation

to pay for imprisoning misdemeanants convicted of ordinance violations. Lucas County,

consequently, must pay the costs of imprisoning misdemeanants convicted of state law

violations.

       {¶ 41} In arguing to the contrary, the Board and Sheriff assert that R.C. 1905.35

does not apply to this case because that statute appears in R.C. Chapter 1905, which is

entitled “Mayor’s Court.” Pointing to R.C. 1905.35’s location in the statutory framework,

the Board and Sheriff contend that R.C. 1905.35 pertains only when a mayor’s court

sentences an individual to imprisonment. We disagree.

       {¶ 42} If the language of a statute is plain and unambiguous, a court must apply, not

interpret, that statute. Jacobson, 149 Ohio St.3d 398, 2016-Ohio-8434, at ¶ 8. Courts “ ‘do

not have the authority’ to dig deeper than the plain meaning of an unambiguous statute

‘under the guise of either statutory interpretation or liberal construction.’ ” Id., quoting

Morgan v. Ohio Adult Parole Auth., 68 Ohio St.3d 344, 347 (1994). In other words, courts

cannot look beyond the language of an unambiguous statute to determine its meaning. See

Jones v. Action Coupling & Equip., 98 Ohio St.3d 330, 2003-Ohio-1099, ¶ 12 (“When the

statutory language is plain and unambiguous, and conveys a clear and definite meaning, we

must rely on what the General Assembly has said.”). Thus, while the location of a statute




20.
in the Revised Code framework may influence the interpretation of an ambiguous statute,

such a consideration has no place in the interpretation of an unambiguous statute.

       {¶ 43} Here, R.C. 1905.35 is an unambiguous statute that requires a municipal

corporation to pay for “[i]mprisonment under the ordinances of [the] municipal

corporation.” We, therefore, have no cause to go further than the plain language of the

statute to determine its meaning. Because that language does not limit the statute’s

application to imprisonment ordered by a mayor’s court, we must reject the Board’s and

Sheriff’s interpretation of R.C. 1905.35.

       {¶ 44} R.C. 1905.35, however, only provides a partial answer to whether Toledo or

Lucas County must pay for housing prisoners charged with or convicted of a misdemeanor

in a Toledo-based court. R.C. 1905.35 addresses postconviction imprisonment; it gives no

guidance as to which governmental subdivision must pay for housing pretrial detainees.

Fortunately, the Board has provided us with direction. The Board has conceded that,

“[w]hen a detainee is housed in the county jail, the sheriff has actual custody, and

responsibility for the costs of confinement rests on the County without regard to any

statute-ordinance distinction.” (Board’s Reply Brief at 7.)

       {¶ 45} The Board’s concession is consistent with the law governing the

circumstances present in Lucas County. As we stated above, individuals arrested in Toledo

for misdemeanor violations are housed in the LCCC if they are denied bail or cannot pay

the bail amount set by the court. The Sheriff has charge of the LCCC and all persons

confined there. R.C. 341.01. The Sheriff has the duty to “keep * * * persons [confined in




21.
the county jail] safely, attend to the jail, and govern and regulate the jail according to the

minimum standards for jails in Ohio promulgated by the department of rehabilitation and

correction.” Id. Under the standards applying to full-service jails, the Sheriff must provide

a minimum level of security, sanitation, food, clothes, bedding, and medical services to

LCCC inmates. See Ohio Adm.Code Chapter 5120:1-8. Lucas County, therefore, must

bear the cost of providing housing, food, clothes, bedding, and medical care to LCCC

prisoners, including pretrial detainees with misdemeanor cases pending before the Toledo

Municipal Court. See Shatzer, 6th Dist. No. L-85-150 (Jan. 31, 1986) (ordering the city to

pay the cost of medical care provided to a prisoner in the custody of the city jail because

“ ‘care * * * is incident * * * to the custody’ ”); Akron City Hosp., 9th Dist. No. 12133

(Oct. 30, 1985) (holding that “[p]rovision of sustenance is a natural corollary to physical

custody of the person,” and thus, ordering the city to pay for the medical care of a prisoner

who fell ill while in the custody of the city corrections facility). In short, Lucas County

must pay to maintain all prisoners in the Sheriff’s custody.10

       {¶ 46} As a final matter, we acknowledge that the Board and Sheriff argue that

allocating the imprisonment costs as the trial court did contradicts sound public policy.


10
   We recognize that the effect of our conclusion is that Lucas County has the obligation
to pay for housing pretrial detainees charged with any misdemeanor, regardless of
whether that misdemeanor is a state law offense or ordinance offense. However, given
the assignments of error before us, the only question under our review is whether the trial
court erred in imposing on Lucas County the responsibility to pay for imprisoning those
alleged to have violated state law. As Toledo did not appeal the trial court’s judgment,
we expressly decline to rule regarding which governmental subdivision must pay for
housing detainees alleged to have violated ordinances.




22.
We, however, must leave that argument to the General Assembly to decide. The General

Assembly, not the judiciary, resolves public policy issues. Johnson v. Microsoft Corp., 106

Ohio St.3d 278, 2005-Ohio-278, ¶ 14; accord Arbino v. Johnson & Johnson, 116 Ohio

St.3d 468, 2007-Ohio-6948, ¶ 71 (“[T]he General Assembly is charged with making the

difficult policy decisions * * * and codifying them into law.”). Courts do not second-guess

the General Assembly’s policy choices. Stetter v. R.J. Corman Derailment Servs., L.L.C.,

125 Ohio St.3d 280, 2010-Ohio-1029, ¶ 93. Rather, where the General Assembly has

spoken, and in so speaking violated no constitutional provision, the courts must follow and

apply the legislature’s expression of public policy. Yoder v. Thorpe, 10th Dist. No.

07AP-225, 2007-Ohio-5866, ¶ 38.

       {¶ 47} In this case, we have followed and applied the relevant statutes to determine

which governmental subdivision must pay the cost of imprisoning individuals charged with

or convicted of misdemeanors in the Toledo Municipal Court. If the General Assembly

wishes to change the law, it is free to do so.

       {¶ 48} In sum, we conclude that the trial court did not err in declaring that Lucas

County must bear the cost of housing individuals charged with or convicted of state law

misdemeanors in Toledo Municipal Court. We note that the trial court also found Lucas

County responsible for the “accompanying” or “attendant” costs of housing the relevant

prisoners. Those “accompanying” or “attendant” costs are the costs associated with

housing prisoners in a detention facility compliant with the minimum standards applicable

to full-service jails. See Ohio Adm.Code 5120:1-8. Having found no error in the trial




23.
court’s first declaration, we overrule the Board’s assignment of error and the portion of the

Sheriff’s assignment of error that relates to that declaration.

       {¶ 49} We next turn to the second issue presented in this appeal. By the

Commission’s first assignment of error and the Sheriff’s assignment of error, the

Commission and Sheriff argue that the trial court erred in declaring that the Fifth

Agreement was not binding on Toledo. We disagree.

       {¶ 50} Toledo argues that the Fifth Agreement does not bind it because its director

of finance did not certify the availability of funds as required in R.C. 5705.41 and Chapter

XIII, Sections 226 and 229, of Toledo’s Charter. In relevant part, R.C. 5705.41 states that

“[n]o subdivision or taxing unit shall:”

       (D) (1) Except as otherwise provided in division (D)(2) of this section and

       section 5705.44 of the Revised Code, make any contract or give any order

       involving the expenditure of money unless there is attached thereto a

       certificate of the fiscal officer of the subdivision that the amount required to

       meet the obligation or, in the case of a continuing contract to be performed

       in whole or in part in an ensuing fiscal year, the amount required to meet

       the obligation in the fiscal year in which the contract is made, has been

       lawfully apportioned for such purpose and is in the treasury or in process of

       collection to the credit of an appropriate fund free from any previous

       encumbrances. * * * Every such contract made without such a certificate




24.
       shall be void, and no warrant shall be issued in payment of any amount due

       thereon.

The definition of “subdivision,” as used in R.C. 5705.41, encompasses all municipal

corporations, including those municipal corporations that have a charter under Article

XVIII of the Ohio Constitution. R.C. 5705.01(A) and (B).11

       {¶ 51} Under the plain language of R.C. 5705.41(D)(1), a subdivision generally

“cannot enter into a contract that requires spending public money unless the fiscal officer

of that subdivision certifies that the entire amount required to satisfy the obligation has

been appropriated for that purpose and is available and unencumbered.” St. Marys v.

Auglaize Cty. Bd. of Commrs., 115 Ohio St.3d 387, 2007-Ohio-5026, ¶ 49. The failure to

attach a certificate as required by R.C. 5705.41(D)(1) is fatal to the validity of the contract.

Pincelli v. Ohio Bridge Corp., 5 Ohio St.2d 41 (1966), paragraph four of the syllabus;

NaphCare, Inc. v. Cty. Council Ohio, 9th Dist. No. 24906, 2010-Ohio-4458, ¶ 11. The

certification requirement is intended “ ‘to preclude the creation of any valid obligation

against the [subdivision] above or beyond the fund previously provided and at hand for

such purpose.’ ” St. Marys at ¶ 49, quoting State v. Kuhner, 107 Ohio St. 406, 413 (1923).




11
  Sections 226 and 229 of the Toledo Charter are substantively identical to R.C.
5705.01(D)(1). Section 226 of the Toledo Charter requires the same certification as R.C.
5705.01(D)(1), and Section 229 states that all contracts without the necessary
certification are void.




25.
       {¶ 52} The Commission and Sheriff do not contest that the Fifth Agreement lacks a

R.C. 5705.41(D)(1) certificate signed by Toledo’s director of finance. Instead, the

Commission and Sheriff argue that R.C. 5705.41(D)(1) does not apply to contracts

between political subdivisions. Because all the parties to the Fifth Agreement are political

subdivisions, the Commission and Sheriff contend that the absence of a R.C.

5705.41(D)(1) certificate from Toledo’s director of finance does not invalidate that

agreement.

       {¶ 53} In support of their argument, the Commission and Sheriff cite Bd. of Cty.

Commrs. v. Bd. of Twp. Trustees, 3 Ohio App.3d 336 (7th Dist.1981), and two cases

following it.12 In Bd. of Cty. Commrs., the Board of Trustees of Island Creek Township

entered into a contract with the Board of Commissioners of Jefferson County for Jefferson

County to service and supply water to Island Creek’s fire hydrants. The contract did not

include an R.C. 5705.41(D)(1) certificate. Island Creek stopped paying under the contract,

and Jefferson County sued it. In response, Island Creek argued that it was not bound by the

contract because the contract lacked an R.C. 5705.41(D)(1) certificate. The Seventh

District Court of Appeals disagreed, concluding that R.C. 5705.41(D)(1) did not apply

when two political subdivisions contract with each other.




12
  The two cases are Rua v. Shillman, 28 Ohio App.3d 63 (11th Dist.1985), and Sagamore
Hills Twp. v. Troutman, 9th Dist. No. 11159 (Jan. 18, 1984).




26.
       {¶ 54} R.C. 5705.41(D)(1) contains two enumerated exceptions; namely, it permits

a subdivision to contract without an R.C. 5705.41(D)(1) certificate as “provided in division

(D)(2) of [R.C. 5705.41] and [R.C.] 5705.44.” Neither R.C. 5705.41(D)(2) nor R.C.

5705.44 exempt contracts between two or more public subdivisions from the operation of

R.C. 5705.41(D)(1).13 The exception created in Bd. of Cty. Commrs., therefore, has no

statutory basis.

       {¶ 55} “When a statutory provision imposing a mandatory obligation has

specifically enumerated exceptions, a court does not have discretion to create additional

exceptions.” State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, ¶ 15; accord State

ex rel. Sapp v. Franklin Cty. Ct. of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, ¶ 26



13
   R.C. 5705.41(D)(2) allows boards of county commissioners to “adopt a resolution
exempting county purchases of one thousand dollars or less from the requirement of
division (D)(1) of this section that a certificate be attached to any contract or order
involving the expenditure of money.” R.C. 5705.44 provides:

       The certificate required by section 5705.41 of the Revised Code as to
       money in the treasury shall not be required for contracts on which payments
       are to be made from the earnings of a publicly operated water works or
       public utility, but in the case of any such contract made without such
       certification, no payment shall be made on account thereof, and no claim or
       demand thereon shall be recoverable, except out of such earnings. That
       certificate also shall not be required if requiring the certificate makes it
       impossible for a county board of developmental disabilities to pay the
       nonfederal share of medicaid expenditures that the county board of is
       required by sections 5126.059 and 5126.0510 of the Revised Code to pay.

Additionally, we note that R.C. 5705.412, which governs “qualifying contract[s]” made
by school districts, applies to school districts “[n]otwithstanding [R.C.] 5705.41.” R.C.
5705.412(B)(1).




27.
(when the plain language of a statute does not recognize the exception sought, the court

could not add it); State ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76,

2008-Ohio-333, ¶ 39 (“But the statute contains no exception, and we cannot add one to its

express language.”). Here, R.C. 5705.41(D)(1) imposes a mandatory obligation on

subdivisions to attach a certificate from its fiscal officer to any contract it makes, with

specifically enumerated exceptions. Those enumerated exceptions do not include contracts

between two or more public subdivisions. Consequently, in the cases the Commission and

Sheriff cite, the courts exceeded the boundaries of their discretion in applying an

uncodified exception to the R.C. 5105.41(D)(1) requirement. For this reason, we cannot

follow those cases.

       {¶ 56} Next, the Sheriff argues that R.C. 307.19 exempts the Fifth Agreement from

compliance with R.C. 5105.41(D)(1). R.C. 307.19 states:

       Sections 307.14 to 307.19, inclusive, of the Revised Code, do not repeal or

       abrogate other sections of the Revised Code authorizing contracts or

       agreements among particular classes of subdivisions, or modify or impair

       the force of such sections in respect of contracts or agreements entered into

       under such sections. Nor shall such other sections control or limit the

       making of agreements under sections 307.14 to 307.19, inclusive, of the

       Revised Code; it being intended that such sections shall be applied as fully

       as though such other sections did not exist.




28.
         {¶ 57} Relying on the second sentence of R.C. 307.19, the Sheriff argues that no

Revised Code sections, other than R.C. 307.14 to 307.19, control or limit the Fifth

Agreement, which the parties made under R.C. 307.15. Thus, the Sheriff contends, the

requirements of R.C. 5105.41(D)(1) do not exist as to the Fifth Agreement.

         {¶ 58} The Sheriff misreads R.C. 307.19. The “such other sections” that do not

control or limit agreements made under R.C. 307.14 to 307.19 are “other sections of the

Revised Code authorizing contracts or agreements among particular classes of

subdivisions.” To reach his interpretation, the Sheriff disregards the limiting phrase

“authorizing contracts or agreements among particular classes of subdivisions.” The

Sheriff interprets R.C. 307.19 as if the “such other sections” that do not control or limit

agreements made under R.C. 307.14 to 307.19 were all “other sections of the Revised

Code.”

         {¶ 59} However, in interpreting a statute, courts cannot delete language used in the

statute. Cleveland Elec. Illuminating Co. v. Cleveland, 37 Ohio St.3d 50 (1988), paragraph

three of the syllabus (“In matters of construction, it is the duty of [a] court to give effect to

the words used, not to delete words used or to insert words not used.”). Read in its entirety,

R.C. 307.19 does not exempt contracts made under R.C. 307.15 from all other Revised

Code sections. Instead, R.C. 307.19 only exempts contracts made under R.C. 307.15 from

other Revised Code sections “authorizing contracts or agreements among particular classes

of subdivisions.”




29.
       {¶ 60} R.C. 5105.41(D)(1) does not authorize contracts or agreements among

particular classes of subdivisions. R.C. 307.19, therefore, does not preclude the application

of R.C. 5105.41(D)(1) to the Fifth Agreement.

       {¶ 61} In sum, we reject all the reasons the Commission and Sheriff offer for

exempting the Fifth Agreement from R.C. 5105.41(D)(1)’s certification requirement.

Because Toledo’s director of finance did not attach an R.C. 5105.41(D)(1) certificate to the

Fifth Agreement, that agreement is invalid and nonbinding as to Toledo.

       {¶ 62} As a final matter, we must address the Sheriff’s argument that the trial court

erred in its interpretation of the interplay between Sections 6 and 8 of the Fourth

Agreement. After reviewing the trial court’s judgment, we conclude that the trial court

engaged in no such interpretation. The trial court merely concluded that Sections 6 and 8

of the Fourth Agreement bound Toledo. Thus, the trial court did not err as the Sheriff has

alleged.

       {¶ 63} Having concluded that the Fifth Agreement does not bind Toledo, we find no

error in the trial court’s declaration. Accordingly, we overrule the Commission’s first

assignment of error and the remainder of the Sheriff’s assignment of error.

       {¶ 64} By the Commission’s second assignment of error, it argues that the trial

court erred in determining that the Fifth Agreement was not binding because the parties did

not unanimously consent to it. We have concluded that the Fifth Agreement does not bind

Toledo for a separate, unrelated reason. The Commission’s second assignment of error,

therefore, is moot.




30.
       {¶ 65} Finally, we turn to Toledo’s cross-assignment of error, by which Toledo

argues that the trial court erred in ruling that Toledo was not entitled to reimbursement of

the payment it made to the Commission at the end of the second quarter of 2016. This

cross-assignment of error is not properly before this court.

       {¶ 66} Pursuant to App.R. 3(C):

              (1) Cross appeal required. A person who intends to defend a

       judgment or order against an appeal by an appellant and who also seeks to

       change the judgment or order or, in the event the judgment or order may be

       reversed or modified, an interlocutory ruling merged into the judgment or

       order, shall file a notice of cross appeal within the time allowed by App.R.

       4.

              (2) Cross appeal and cross-assignment of error not required. A

       person who intends to defend a judgment or order appealed by an appellant

       on a ground other than that relied on by the trial court but who does not

       seek to change the judgment or order is not required to file a notice of cross

       appeal or to raise a cross-assignment of error.

       {¶ 67} Here, by its cross-assignment of error, Toledo seeks to reverse the trial

court’s ruling that denied it reimbursement. Thus, App.R. 3(C)(1) required Toledo to file a

notice of cross appeal. Toledo did not do that. Accordingly, we cannot consider Toledo’s

argument, and therefore, we dismiss the cross-assignment of error. See Bennett v.

Waidelich, 6th Dist. No. F-04-023, 2005-Ohio-2489, ¶ 32 (refusing to consider an




31.
appellee’s argument seeking to reverse the trial court’s judgment when the appellee failed

to file a notice of cross appeal).

       {¶ 68} For the foregoing reasons, we overrule the Commission’s first assignment of

error, and the Board’s and Sheriff’s assignments of error. Our ruling on the Commission’s

first assignment of error renders the Commission’s second assignment of error moot, and

consequently, we do not rule on it. We affirm the judgment of the Lucas County Court of

Common Pleas. Pursuant to App.R. 24, it is ordered that appellants pay the costs of this

appeal.

                                                                        Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


William A. Klatt, J.                           _______________________________
                                                           JUDGE
Lisa L. Sadler, J.
                                               _______________________________
Julia L. Dorrian, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE

Judges William A. Klatt, Lisa L. Sadler and Julia L. Dorrian, Tenth District Court of
Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.




32.
