[Cite as Ashenhurst v. Ohio State Elections Comm., 2016-Ohio-777.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

David R. Ashenhurst, : 

 Plaintiff-Appellant, : 

 No. 15AP-184 

v. : (C.P.C. No. 14CV-10441)

Ohio State Elections Commission et al., : (ACCELERATED CALENDAR) 

 Defendants-Appellees. : 

 

D E C I S I O N 

Rendered on March 1, 2016 

 

On brief: David R. Ashenhurst, pro se. Argued: David R. 

Ashenhurst

On brief: Mike DeWine, Attorney General, Tiffany L. 

Carwile, and Zachery P. Keller, for appellees. Argued: 

Tiffany L. Carwile

 

APPEAL from the Franklin County Court of Common Pleas 

HORTON, J. 

{¶ 1} Appellant, David R. Ashenhurst, appeals from the February 13, 2015 

judgment of the Franklin County Court of Common Pleas granting a motion to dismiss 

filed by appellee, Ohio State Elections Commission ("Commission"), on grounds that his 

appeal was untimely. For the reasons that follow, we affirm the judgment of the trial 

court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Appellant was the complainant against respondent the City of Oberlin in a 

case before the Commission. On August 28, 2014, the Commission conducted a 

preliminary review of his complaint. The Commission held a hearing, took evidence, and 

heard argument. The Commission then voted and found no violation. 
No. 15AP-184 2 

{¶ 3} On September 16, 2014, the Commission mailed its order by regular U.S. 

Mail to appellant. The order contained the following language, some of which was in bold 

face type: 

On 8/28/2014 after careful consideration of the evidence, the 

Ohio Elections Commission adopted the following finding(s) 

in the above referenced matter: 

THE COMMISSION FOUND NO VIOLATION. 

* * * 

If the decision in this case is adverse to you, this case 

may be appealed pursuant to Ohio Revised Code 

§119.12. A Notice of Appeal must be filed within 15 

days after the mailing of this Order. The Notice must 

be filed with the Commission and also at the Clerk's 

Office for the Franklin County Court of Common 

Pleas. 

(Emphasis sic.) 

{¶ 4} Appellant filed his notice of appeal with the Franklin County Court of 

Common Pleas on October 8, 2014, 22 days after the Commission had mailed its notice. 

Appellant attributed his late filing of his notice of appeal to problems with the electronic 

filing process with the Franklin County Court of Common Pleas, as well what he deemed 

an untimely response from the Commission for certain records. 

{¶ 5} Appellant had applied for a pro se account with the office of the Franklin 

County Clerk of Courts on October 1, 2014, but "did not understand there would be a 

delay between the application and the approval of the Clerk's office to use that account 

and to begin accepting documents." (Memorandum in Opposition to Defense Motion to 

Dismiss, 2.) Appellant then attempted to file his notice of appeal electronically with the 

clerk of the Franklin County Court of Common Pleas on October 2 and October 3, 2014, 

but his filings were not accepted by the clerk's office. He was finally able to file 

electronically on October 8, 2014, 22 days after the Commission's order was mailed to 

him. 
No. 15AP-184 3 

{¶ 6} The Commission filed a motion to dismiss for lack of subject-matter 

jurisdiction pursuant to Civ.R. 12(B)(1) contending that appellant failed to strictly comply 

with the filing requirements for a notice of appeal. 

{¶ 7} The trial court found that the time to file an appeal started to run when the 

Commission mailed its decision and that appellant failed to timely file a notice of appeal 

with the common pleas court. The trial court stated that appellant's "arguments regarding 

problems complying with the electronic filing system and alleged delays by the 

Commission in responding to a request for information cannot overcome the requirement 

of strict compliance with the requirements of R.C. 119.12." (Decision and Entry, 3.) 

Therefore, the trial court determined that the appeal was untimely, that it lacked 

jurisdiction to entertain the appeal, and that the motion to dismiss should be granted. 

II. ASSIGNMENT OF ERROR

{¶ 8} Appellant appealed the dismissal to this court assigning as error the 

following: 

The Court of Common Pleas erred in granting the appellee 

administrative agency's motion to dismiss on the basis of the 

reasons advanced in the agency's motion alleging 

untimeliness under O.R.C. Section 119.12. Appellant's 

administrative appeal to the Court of Common Pleas was not 

untimely, especially given the Commission's ten-day delay in 

responding to a request for its Journal during the fifteen-day 

window available for an Administrative Appeal. 

III. STANDARD OF REVIEW

{¶ 9} A motion to dismiss for lack of subject-matter jurisdiction is a question of 

law, which we review de novo. Courtyard Lounge v. Bur. of Environmental Health, 190 

Ohio App.3d 24, 2010-Ohio-4442, ¶ 5 (10th Dist.). 

IV. SUPPLEMENTAL BRIEFING

{¶ 10} At oral argument, this court questioned whether the time for appeal had 

ever begun to run given that the order from the Commission was sent to appellant by 

ordinary mail and not certified mail. This court requested supplemental briefing by the 

parties on the following three questions: 

In considering R.C. 119.12, and the requirement that notices 

of appeal shall be filed within fifteen days after the "mailing of 
No. 15AP-184 4 

the notice of the agency's order as provided in this section," 

was the September 16, 2014 order of the Ohio Elections 

Commission sent by certified mail? Pursuant to R.C. 119.09 

and Hughes v. Ohio Dept. of Commerce, 114 Ohio St.3d 47, 

2007-Ohio-2877, has the 15-day appeal period contained in 

R.C. 119.12 commenced if the order was not served by certified 

mail? What is the effect, if any, of Ohio Adm.Code 3517-1-

03(E) in this case? 

V. ANALYSIS

{¶ 11} Chapter 119 of the Ohio Revised Code governs administrative appeals in the 

courts of common pleas. When the right to appeal is conferred by statute, as it is here, an 

appeal can be perfected only in the manner prescribed by statute. Courtyard Lounge at 

¶ 6. In addition, the administrative agency must strictly comply with the procedural 

requirements of R.C. 119.09 for serving the final order of adjudication or the 15-day 

period set forth in R.C. 119.12 does not begin to run. Hughes v. Ohio Dept. of Commerce, 

114 Ohio St.3d 47, 2007-Ohio-2877, paragraph one of the syllabus. Massey v. Ohio 

Elections Comm., 10th Dist. No. 13AP-20, 2013-Ohio-3498, ¶ 11. 

{¶ 12} This raises the question of whether the Commission's administrative rule 

permitting service of notice of adjudication by regular mail in Ohio Adm.Code 3517-1-

03(E) conflicts with the statute requiring service by certified mail as set forth in R.C. 

119.09. Administrative agencies, such as the Commission, possess rule-making powers 

pursuant to a statutory delegation of power; since administrative rules are made pursuant 

to a statutory delegation of authority, a rule which conflicts with a statute is invalid. Kelly 

v. Accountancy Bd. of Ohio, 88 Ohio App.3d 453, 457 (10th Dist.1993). 

{¶ 13} Although our request for supplemental briefing was focused on the issue of 

certified mail service versus regular mail service, the response from the Commission at 

the supplemental briefing stage raised a more fundamental jurisdictional issue. 

VI. WAS THE COMMISSION'S DETERMINATION APPEALABLE?

{¶ 14} Before the trial court, the Commission took the position that the proceeding 

on August 28, 2014 was an adjudication, and that dismissal was proper because Mr. 

Ashenhurst filed his notice of appeal too late. For example, in its memorandum in 

support of its motion to dismiss before the trial court, the Commission stated as follows: 

"This matter arises out of an adjudication by the Ohio Elections Commission of a 
No. 15AP-184 5 

complaint filed by David R. Ashenhurst in which the Commission found that there was no 

violation of the allegations contained in the complaint." (Defendant Ohio Elections 

Commission's Motion to Dismiss, 2.) 

{¶ 15} However, at the supplemental briefing stage, the Commission changed 

course and took the position that the proceeding was not a full adjudicative hearing, but 

rather a preliminary review from which no right of appeal exists. The Commission argued 

as follows: 

Here, the [Commission] was acting in their investigatory and 

executive function to determine if they even had jurisdiction 

to consider Mr. Ashenhurst's complaint. Because they were 

acting in an executive rather than adjudicatory function, there 

was no right for Mr. Ashenhurst to appeal and no need for the 

[Commission] to send its order by certified mail. [Citation 

omitted]. Thus, in answer to the second question, the 15-day 

appeal period in R.C. 119.12 does not even apply to this case, 

as there is no statutory authority for Mr. Ashenhurst to appeal 

the [Commission's] decision on preliminary review. 

(Supplemental Brief of Appellee Ohio State Elections Commission, 4-5.) 

{¶ 16} Although we are not inclined to address issues that are raised for the first 

time on appeal, we did request supplemental briefing, and we find that this case is directly 

on point with a prior decision of this court finding a lack of jurisdiction to pursue an 

appeal from a preliminary determination by the Commission. Accordingly, we must 

address the question of whether the trial court had jurisdiction over the attempt to appeal 

the Commission's determination. 

{¶ 17} In Robinson v. Ohio Elections Comm., 10th Dist. No. 04AP-495, 2004-

Ohio-6452, the notice the Commission sent to the appellant advising him of his right to 

appeal was directly at odds with its later claim that the determination being appealed 

from was not appealable. Id. at ¶ 8. In Robinson, just as in this case, the appellant 

received a notice from the Commission advising him of his right to appeal from a 

determination that no violation of Ohio law occurred and dismissing his complaint. Id. at 

¶ 2, 3. The appellant filed his notice of appeal in the trial court after the 15-day time period 

had lapsed, and the trial court dismissed the appeal for lack of jurisdiction. Id. at ¶ 3. 
No. 15AP-184 6 

{¶ 18} This court found that no right of appeal exists under R.C. 119.12 from a 

determination by the Commission that no probable cause exists after conducting its 

preliminary review. Id. at ¶ 11. The court determined that at the preliminary review phase, 

the Commission is acting in an executive, rather than an adjudicative function, and 

because a dismissal based on lack of probable cause is not an adjudication, there is no 

provision for appeal. Id. citing Common Cause/Ohio v. Ohio Elections Comm., 150 Ohio 

App.3d 31, 35 (10th Dist.2002). 

{¶ 19} The court went on to examine the circumstances of the proceeding from 

which appellant attempted to appeal, comparing it to the procedures set forth in Ohio 

Adm.Code 3517-1-11(A) which provides as follows: 

All cases * * * shall be subject to the following provisions. A 

preliminary review of the allegations shall be held by a 

probable cause panel or the full commission, at the discretion 

of the staff attorney to the commission. At the preliminary 

review stage, the body hearing the case shall review all 

pleadings, evidence, and motions before it to determine 

jurisdiction, sufficiency of the complaint, and whether 

probable cause exists for the full commission to determine 

whether a violation of Ohio election law has occurred. 

(1) At the preliminary review stage of the proceedings, the 

body hearing the case shall not hear arguments, receive 

evidence or take testimony unless: 

(a) All parties (whether pro se or through counsel) have filed a 

stipulation agreeing to such procedure and a majority of the 

members present, in their sole discretion, agree to do so; or 

(b) Any member wishes to request specific information which 

will aid in a proper determination of the matter at the 

preliminary review stage. 

{¶ 20} Thus, if the preliminary review is held before a probable cause panel or the 

full Commission, the hearing body may dismiss the case if, among other things, no 

probable cause exists. Ohio Adm.Code 3517-1-11(A)(2)(a) and (e)(i). 

{¶ 21} In Robinson, the court then went on to examine the proceedings that were 

held before the Commission finding that the Commission "went beyond examining the 

pleadings or hearing oral argument. Instead, it swore in witnesses and inquired of the 
No. 15AP-184 7 

witnesses." Robinson at ¶ 13. The court then determined that even under those 

circumstances, "the commission's proceedings are closer to a preliminary review than to a 

full hearing, and its no violation determination closer to a finding of no probable cause 

than to an adjudication of no violation." Id. 

{¶ 22} Specifically, nothing in the record before the Commission in the Robinson

case indicated the Commission set the matter for a full adjudicatory hearing. The evidence 

showed the Commission conducted only a preliminary review, and consequently, the 

appellant had no right to an appeal under R.C. 119.12. Id. at ¶ 14-15. 

{¶ 23} Other cases from this court are in accord with Robinson. State ex rel. 

Citizens for Van Meter v. Ohio Elections Comm., 78 Ohio App.3d 289 (10th Dist.1992), 

involved a prior legislative scheme governing the Commission, but the reasoning was the 

same as in Robinson. The issue in Van Meter was whether political action committees 

were deprived of due process when the Commission did not comply with statutory service 

requirements to issue by certified mail copies of its decision. This court held that the 

"Relators could not be deprived of an appeal by virtue of the commission's noncompliance 

with any statutory service requirements because there is no appeal in this instance 

pursuant to R.C. 119.12 or otherwise." Id. at 292. 

{¶ 24} Similarly, in Billis v. Ohio Elections Comm., 146 Ohio App.3d 360 (10th 

Dist.2001), this court held there was no provision for anyone to appeal from an action of 

the Commission dismissing a complaint for lack of probable cause, since such a dismissal 

is not an adjudication from which an appeal lies. Id. at 364. 

{¶ 25} Almost identical circumstances to Robinson are present in the case before 

us. The Commission sent notices to appellant, Mr. Ashenhurst, and the City of Oberlin 

scheduling it for "preliminary review" on August 28, 2014. (Ohio Elections Commission 

Case Summary, 27, 29.) The Commission reviewed the material submitted by the parties, 

swore in Mr. Ashenhurst, and heard testimony and argument from him. (Record of 

Proceedings, 3-7.) It then heard argument from the attorney for the City of Oberlin, and 

addressed certain questions to the staff attorney present. (Record of Proceedings, 7-12.) 

It heard additional comments from Mr. Ashenhurst. (Record of Proceedings, 12-14.) The 

Commission then discussed the matter and voted 5-2 that there was no violation. (Record 

of Proceedings, 14-18.) 
No. 15AP-184 8 

{¶ 26} Based on our review of the record, and the reasoning and precedent in 

Robinson, Van Meter, and Billis, we are compelled to find that appellant did not have a 

right to appeal from the Commission's determination of no violation. Because the 

Commission did not move beyond its executive function, appellant never had a right to 

appeal under R.C. 119.12. As such, the issue of whether the notice should have been sent 

by certified mail or regular mail is moot, and the trial court correctly determined that it 

lacked jurisdiction over appellant's attempt to appeal the order, albeit for a different 

reason than argued by the Commission and articulated by the trial court. 

VIII. CONCLUSION

{¶ 27} The single assignment of error is overruled, and the judgment of the 

Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

DORRIAN, P.J. and BROWN, J., concur. 

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