[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

O’Neal v. State, Slip Opinion No. 2021-Ohio-3663.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2021-OHIO-3663

O’NEAL, APPELLANT, ET AL. v. THE STATE OF OHIO ET AL., APPELLEES.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as O’Neal v. State, Slip Opinion No. 2021-Ohio-3663.] 

Execution protocol— R.C. 111.15—Ohio’s execution protocol is not a rule having 

a general and uniform operation—Court of appeals’ judgment affirmed. 

Nos. 2020-0676 and 2020-0683—Submitted June 30, 2021—Decided October 19, 

2021. 

APPEALS from the Court of Appeals for Franklin County, Nos. 19AP-260 and 

19AP-289, 2020-Ohio-506. 

______________ 

FISCHER, J. 

{¶ 1} The Department of Rehabilitation and Correction (“DRC”) is 

responsible for carrying out death sentences in Ohio. See R.C. 2949.22(A) and (B). 

In furtherance of its duty, DRC has adopted a written execution protocol: a 

document that sets forth the specific process by which DRC personnel are to carry 

out death sentences by lethal injection. 
SUPREME COURT OF OHIO

 2

{¶ 2} In these appeals, two condemned inmates contend that DRC may 

adopt the execution protocol only by following the procedures for promulgating it 

as an administrative rule in accordance with R.C. 111.15(B), and that until this is 

done, the protocol is invalid and may not be used to carry out death sentences. 

I. Facts and Procedural History 

{¶ 3} Both appellants, Cleveland Jackson (case No. 2020-0676) and James 

D. O’Neal (case No. 2020-0683) (collectively, “the inmates”) have been convicted 

of aggravated murder and sentenced to death. See State v. Jackson, 107 Ohio St.3d 

53, 2005-Ohio-5981, 836 N.E.2d 1173; State v. O’Neal, 87 Ohio St.3d 402, 721 

N.E.2d 73 (2000). The appellees in both cases are the state of Ohio and DRC 

(collectively, “the state”). 

{¶ 4} DRC has maintained a written execution protocol since 1994. The 

protocol has gone through 20 versions; the current one, designated DRC policy 01-

COM-11, took effect on October 7, 2016. See Ohio Department of Rehabilitation 

and Correction, https://drc.ohio.gov/LinkClick.aspx?fileticket=-r0rnCS3AGc% 

3d&portalid=0 (accessed Aug. 3, 2021) [https://perma.cc/N8UU-C9EF]. In 

adopting 01-COM-11, DRC did not follow Ohio’s procedures for formal 

rulemaking set forth in R.C. 111.15. Specifically, DRC “did not file the protocol 

with any State entity.” O’Neal v. State, Franklin C.P. No. 18CVH-01-758, at 2 

(Apr. 4, 2019). 

{¶ 5} In 2018, O’Neal filed a complaint in the Franklin County Court of 

Common Pleas seeking an injunction halting his execution and a declaration that 

the protocol is invalid. The trial court subsequently permitted Jackson to intervene 

in the lawsuit. The inmates and the state filed motions for summary judgment; the 

trial court granted the state’s motion, denied those of the inmates, and entered 

summary judgment in the state’s favor. O’Neal, Franklin C.P. No. 18CVH-01-758, 

at 1. The court of appeals affirmed the trial court’s judgment. 2020-Ohio-506, 146 

N.E.3d 605. 
January Term, 2021 

3

{¶ 6} Jackson and O’Neal each filed discretionary appeals in this court. We 

granted review of Jackson’s and O’Neal’s first propositions of law. See O’Neal v. 

State, 160 Ohio St.3d 1418, 2020-Ohio-4811, 154 N.E.3d 97; O’Neal v. State, 160 

Ohio St.3d 1418, 2020-Ohio-4811, 154 N.E.3d 98. 

{¶ 7} Jackson’s first proposition of law is: “Ohio’s execution protocol 01-

COM-11 governs the day-to-day staff procedures and operations by which DRC 

carries out a core statutory function—the execution of condemned persons—and 

thus is a ‘rule’ subject to R.C. 111.15.” O’Neal’s first proposition of law is: “DRC’s 

execution protocol 01-COM-11 is subject to the rule-making requirements of R.C. 

111.15 and is invalid for failing to comply with the statute.” 

II. Standing 

{¶ 8} Before examining those issues, we will consider the state’s challenge 

to the inmates’ standing. 

{¶ 9} The state contends that the inmates lack standing to sue over the 

validity of DRC’s execution protocol. Standing is a “ ‘jurisdictional requirement’ 

that must be met for a party to maintain a lawsuit.” Ohioans for Concealed Carry, 

Inc. v. Columbus, 164 Ohio St.3d 291, 2020-Ohio-6724, 172 N.E.3d 935, ¶ 42, 

quoting State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio 

St.2d 176, 179, 298 N.E.2d 515 (1973). 

{¶ 10} “[S]tanding depends on whether the plaintiffs have alleged such a 

personal stake in the outcome of the controversy that they are entitled to have a 

court hear their case.” ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 

2014-Ohio-2382, 13 N.E.3d 1101, ¶ 7. Standing has three elements: injury, 

causation, and redressability. Moore v. Middletown, 133 Ohio St.3d 55, 2012-

Ohio-3897, 975 N.E.3d 977, ¶ 22. Thus, to establish standing, the inmates must 

show that they suffered an injury that is fairly traceable to the state’s allegedly 

illegal conduct and that their injury is likely to be redressed by the relief they are 
SUPREME COURT OF OHIO

 4

requesting. See id. The state contends that the inmates’ standing fails on the third 

element: redressability. 

{¶ 11} As the inmates point out, they themselves are the objects of the 

injurious state action: their executions will be carried out under an assertedly 

invalid protocol. That makes their claim to standing a strong one. 

When the suit is one challenging the legality of government 

action or inaction, the nature and extent of facts that must be averred 

(at the summary judgment stage) or proved (at the trial stage) in 

order to establish standing depends considerably upon whether the 

plaintiff is himself an object of the action (or forgone action) at 

issue. If he is, there is ordinarily little question that the action or 

inaction has caused him injury, and that a judgment preventing or 

requiring the action will redress it. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-562, 112 S.Ct. 2130, 119 L.Ed.2d 

351 (1992). 

{¶ 12} However, the state points out that an alleged injury is not redressable 

when a ruling in the plaintiff’s favor would leave the plaintiff subject to the same 

injury from which he seeks relief. See State ex rel. Walgate v. Kasich, 147 Ohio 

St.3d 1, 2016-Ohio-1176, 59 N.E.3d 1240, ¶ 27 (lead opinion) (holding that an 

injury was nonredressable because “[e]ven if the state’s actions were nullified,” the 

alleged injury “would continue to exist”). 

{¶ 13} The state contends that the injury alleged by the inmates is that they 

“do not want to be executed in the manner provided for by the protocol.” According 

to the state, because DRC has statutory authority to carry out death sentences and 

no statute requires that it adopt an execution protocol, winning this case would not 

actually benefit the inmates. Hence, the state argues, if the execution protocol, 01-
January Term, 2021 

5

COM-11, is declared invalid, DRC could simply execute the inmates pursuant to 

its statutory authority “in precisely the same manner provided for by the protocol.” 

{¶ 14} But “standing turns on the nature and source of the claim asserted by 

the plaintiffs.” Moore, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.3d 977, at 

¶ 23. And the state’s argument, we think, misconceives the nature of the inmates’ 

claim. 

{¶ 15} Contrary to the state’s assertion, the injury alleged in this case is not 

that the inmates are to be executed in any particular fashion. It is alleged that they 

are to be executed in accordance with a protocol that is legally invalid because it 

was not promulgated as an administrative rule under R.C. 111.15(B). That alleged 

injury could be redressed by a declaration that the protocol is invalid. 

{¶ 16} Although the state does not raise the point, we acknowledge that a 

declaratory-judgment action is not a proper means to litigate some of the challenges 

to the protocol’s validity. Indeed, we have held: “There is no state postconviction 

relief or other state-law mode of action to litigate the issue of whether a specific 

lethal-injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 

1250, 170 L.Ed.2d 420 (2008), or under Ohio law.” Scott v. Houk, 127 Ohio St.3d 

317, 2010-Ohio-5805, 939 N.E.2d 835, ¶ 4. But “Scott does not foreclose every 

possible avenue for raising a protocol challenge in Ohio courts.” State v. Belton, 

149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 75. The instant case does 

not involve a state or federal constitutional challenge to the protocol, and Scott does 

not address whether a state-law cause of action, such as declaratory judgment, may 

be used to challenge an execution protocol on nonconstitutional grounds. 

{¶ 17} In any event, the availability of declaratory judgment goes to the 

merits of the action; it does not affect the inmates’ standing. The fact remains that 

should the inmates obtain the judgment they seek, it will provide them with redress, 

which disposes of the state’s redressability argument. 
SUPREME COURT OF OHIO

 6

{¶ 18} We also reject the state’s contention that because no Ohio statute 

requires DRC to adopt an execution protocol, it may execute condemned inmates 

without a protocol yet in the same manner that is specified in the protocol. This 

argument draws an empty distinction between the protocol and the procedures 

specified in the protocol. Those procedures are the protocol, and in following them, 

DRC would be following the protocol. 

{¶ 19} In any event, DRC’s execution procedures have been the subject of 

frequent Eighth Amendment litigation. In that litigation, federal courts have 

required DRC not only to have an execution protocol, but to follow it consistently. 

Indeed, federal courts have stayed scheduled executions because of DRC’s failures 

to consistently follow its own protocol. See, e.g., Reynolds v. Strickland, 583 F.3d 

956, 957 (6th Cir.2009) (staying execution in light of serious questions about 

“whether Ohio is fully and competently adhering to the Ohio lethal injection 

protocol”); In re Ohio Execution Protocol Litigation, 671 F.3d 601, 602 (6th 

Cir.2012) (denying the state of Ohio’s motion to vacate the district court’s order 

staying an execution due to the state’s “persistent failure or refusal * * * to follow 

its own written execution protocol”). Given this history, we do not see how DRC 

would be able to execute condemned inmates without an execution protocol. 

{¶ 20} We conclude that the injury alleged by the inmates is redressable and 

that they “have alleged such a personal stake in the outcome of the controversy that 

they are entitled to have a court hear their case.” ProgressOhio.org, 139 Ohio St.3d 

520, 2014-Ohio-2382, 13 N.E.3d 1101, at ¶ 7. The inmates have standing to 

challenge the legality of the execution protocol. Accordingly, we now proceed to 

address the merits of their arguments. 

III. Merits 

{¶ 21} In most circumstances, R.C. 111.15 creates a procedure that state 

agencies must adhere to when promulgating rules. Of specific relevance to this 

case, R.C. 111.15(B)(1)(a) provides that a rule adopted pursuant to R.C. 111.15 
January Term, 2021 

7

may take effect only after the adopting agency has filed it with the secretary of state 

and the director of the Ohio Legislative Service Commission (“LSC”): 

Any rule * * * adopted by any agency pursuant to this 

section shall be effective on the tenth day after the day on which the 

rule in final form and in compliance with division (B)(3) of this 

section is filed as follows: 

(a) The rule shall be filed in electronic form with both the 

secretary of state and the director of the legislative service 

commission * * *. 

The rule must also be filed with the Joint Committee on Agency Rule Review 

(“JCARR”), R.C. 111.15(B)(1)(b), unless it is exempt from legislative review 

under R.C. 111.15(D)(1) through (7). 

{¶ 22} R.C. 111.15(B)(1) applies to “any rule” adopted by “any agency.” 

R.C. 111.15(A) supplies definitions of both “rule” and “agency”: 

(A) As used in this section: 

(1) “Rule” includes any rule, regulation, bylaw, or standard 

having a general and uniform operation adopted by an agency under 

the authority of the laws governing the agency; any appendix to a 

rule; and any internal management rule. “Rule” does not include 

* * * any order respecting the duties of employees * * *. 

(2) “Agency” means any governmental entity of the state and 

includes * * * any * * * department * * *. 

(3) “Internal management rule” means any rule, regulation, 

bylaw, or standard governing the day-to-day staff procedures and 

operations within an agency. 
SUPREME COURT OF OHIO

 8

{¶ 23} The parties do not dispute that DRC is an “agency” within the 

meaning of R.C. 111.15(A)(2) or that the protocol was adopted by DRC under the 

authority of the laws governing DRC. Thus, the dispositive issue is whether the 

execution protocol constitutes a “rule” as defined in R.C. 111.15(A)(1). 

{¶ 24} If the execution protocol is either a “rule, regulation, bylaw, or 

standard having a general and uniform operation” or an “internal-management 

rule,” then it fits under the definition of a “rule” under R.C. 111.15(A)(1). If the 

protocol does not fit into either one of those categories or if it is an “order respecting 

the duties of employees,” id., then it is not a “rule” and is therefore not subject to 

the statute’s rule-filing requirements. 

{¶ 25} The inmates contend that DRC should have filed the execution 

protocol with the secretary of state and LSC’s director because the protocol is a 

“rule * * * having a general and uniform operation” in accordance with R.C. 

111.15(A)(1) or, alternatively, because it is an internal-management rule as defined 

by R.C. 111.15(A)(3). We will examine both contentions. 

A. Is the execution protocol a rule having a general and uniform operation? 

{¶ 26} There is little authority interpreting the meaning of “rule” in R.C. 

111.15(A)(1). However, Ohio’s Administrative Procedure Act, R.C. Chapter 119, 

defines the word “rule” with similar language: “any rule, regulation, or standard, 

having a general and uniform operation, adopted, promulgated, and enforced by 

any agency under the authority of the laws governing such agency.” R.C. 

119.01(C). We will therefore look to our precedents applying R.C. 119.01(C) to 

help us construe R.C. 111.15(A). 

{¶ 27} In applying the definition of “rule” in R.C. 119.01(C), we have

distinguished between an administrative action that establishes a policy or standard 

and one that merely implements or interprets a rule or statute that already exists. 

See Adams v. Testa, 152 Ohio St.3d 207, 2017-Ohio-8853, 94 N.E.3d 539, ¶ 37; 
January Term, 2021 

9

State ex rel. Saunders v. Indus. Comm., 101 Ohio St.3d 125, 2004-Ohio-339, 802 

N.E.2d 650, ¶ 27. An action that establishes a new policy or standard is a rule under 

R.C. 119.01(C); one that implements or interprets a pre-existing rule or statute is 

not. See Saunders at ¶ 27 (“The pivotal issue in determining the effect of a 

document is whether it enlarges the scope of the rule or statute from which it derives 

rather than simply interprets it”). 

{¶ 28} Indeed, in Ohio Nurses Assn., Inc. v. State Bd. of Nursing Edn. & 

Nurse Registration, 44 Ohio St.3d 73, 540 N.E.2d 1354 (1989), we held that the 

Ohio State Board of Nursing Education and Nurse Registration’s decision, which 

was issued in a “position paper,” to greatly expand the authority of licensed 

practical nurses (“LPNs”) to administer intravenous fluids fell within the statutory 

definition of a “rule.” The position paper “enlarge[d] the scope of practice for 

LPNs” beyond what any existing statute or rule authorized. Id. at 75. Hence, “the 

[position] paper [did] not purport merely to interpret an extant statute or rule, but 

rather to establish a new rule, standard or regulation regarding LPN practice.” Id. 

{¶ 29} Likewise, in Fairfield Cty. Bd. of Commrs. v. Nally, 143 Ohio St.3d 

93, 2015-Ohio-991, 34 N.E.3d 873, we held that a limitation on phosphorus 

discharge imposed by the Ohio Environmental Protection Agency was a “standard” 

having a “general and uniform operation” and was therefore a “rule” that had to be 

filed in accordance with the Administrative Procedure Act. We explained that the 

discharge limit “prescribe[d] a legal standard that did not previously exist,” id. at 

¶ 29, and “create[d] new legal obligations,” id. at ¶ 32. Moreover, it “applie[d] to 

a large segment of the public rather than a narrow group” and was thus “generally 

and uniformly applicable.” Id. at ¶ 30. 

{¶ 30} By contrast, “[d]ocuments that explain, rather than expand, fall 

outside [the definition of ‘rule’ contained in] R.C. Chapter 119.” Saunders, 101 

Ohio St.3d 125, 2004-Ohio-339, 802 N.E.2d 650, at ¶ 33. To illustrate this 

principle, Saunders examined Princeton City School Dist. Bd. of Edn. v. Ohio State 
SUPREME COURT OF OHIO

 10 

Bd. of Edn., 96 Ohio App.3d 558, 645 N.E.2d 773 (1st Dist.1994). Princeton

involved a legislatively created statewide computer-information network for public 

schools. The state board of education established “guidelines” for the compilation, 

collection, and reporting of data in conjunction with the network. The First District 

held in Princeton that the guidelines were not rules and did not have to be formally 

promulgated in compliance with the Administrative Procedure Act because 

[t]he guidelines * * * are a kind of instruction manual showing

methods and alternatives to identify, compile, collect and report the 

data. * * * [T]hese guidelines merely control the procedure by

which the duties in the statute and rule must be performed * * *. 

Princeton at 563-564. 

{¶ 31} The execution protocol in 01-COM-11 has little in common with the 

kind of edicts that we have found that fit within the statutory definition of “rule.” 

It creates neither a “legal standard,” Nally at ¶ 29, nor a “legal obligation[],” id. at 

¶ 32. Unlike the position paper in Ohio Nurses, 01-COM-11 does not expand 

anyone’s functions or abilities; the obligation to execute death sentences by lethal 

injection is already conferred on DRC by statute, and the protocol “is merely the 

implementation * * * of a rule already in existence.” Adams, 152 Ohio St.3d 207, 

2017-Ohio-8853, 94 N.E.3d 539, at ¶ 37. And unlike the discharge limit in Nally, 

the execution protocol applies only to “a narrow group” rather than to “a large 

segment of the public,” Nally at ¶ 30; thus, while it is intended to operate uniformly 

to “all individuals involved in carrying out a court-ordered death sentence,” 01-

COM-11 at 1, it does not have a “general and uniform operation [emphasis added],” 

R.C. 119.01(C). 

{¶ 32} Like the guidelines at issue in Princeton, the execution protocol 

described in 01-COM-11 amounts to an instruction manual: it is a 21-page, step-
January Term, 2021 

11 

by-step, minutely detailed directive explaining precisely how DRC personnel are 

to administer a lethal injection to a condemned inmate, from start to finish. 

{¶ 33} The execution protocol in 01-COM-11 provides for (1) the selection 

of specific drugs to be used in an execution, (2) ordering and testing the drugs 

before an execution, (3) securely storing and handling the drugs before and after an 

execution, (4) physical- and mental-health evaluations of the prisoner, (5) training 

and rehearsal by the personnel involved in an execution, (6) how and when to 

inventory the prisoner’s effects, (7) allowing visitors, (8) the prisoner’s “special 

meal,” id. at 11, (9) reading the death warrant aloud, and (10) the prisoner’s last 

words. The protocol lays out what is to take place 30 days, 14 days, and 24 hours 

before a scheduled execution and on the day of the execution. 

{¶ 34} The step-by-step procedure for preparing the lethal-injection drugs 

consists of two and a half pages. The procedure for the execution itself, i.e., the 

establishment of intravenous sites, insertion of the needles, consciousness checks, 

and administration of the drugs, consists of five pages. The protocol precludes 

deviation from some provisions and specifies that only DRC’s director may 

authorize deviations from others. It also requires that certain actions be 

documented. Finally, it provides for post-execution debriefings and performance 

reviews of the execution team. Specific duties are assigned to DRC’s director, the 

warden, the execution team, the execution-team leader, the medical team, the drug 

administrators, and others. 

{¶ 35} In short, 01-COM-11 “control[s] the procedure by which the duties 

[imposed] in the statute * * * must be performed.” See Princeton, 96 Ohio App.3d 

at 564, 645 N.E.2d 773. Accordingly, we hold that the execution protocol is not a 

“rule * * * having a general and uniform operation,” R.C. 111.15(A)(1). 

{¶ 36} The inmates support their argument that 01-COM-11 is a rule and

that “[t]he failure to comply with R.C. 111.15 filing requirements invalidates the 

proposed rule” with two cases that applied a former version of R.C. 111.15: State 
SUPREME COURT OF OHIO

 12 

ex rel. N. Canton Exempted Village School Dist. Bd. of Edn. v. Holt, 174 Ohio St. 

55, 186 N.E.2d 862 (1962), and State ex rel. Ryan v. State Teachers Retirement 

Sys., 71 Ohio St.3d 362, 643 N.E.2d 1122 (1994). Both Holt and Ryan held that 

certain resolutions adopted by the School Employees Retirement Board were 

invalid and could not be implemented because those resolutions had not been filed 

with the secretary of state pursuant to the versions of R.C. 111.15 in effect at that 

time. Holt at 56-57 (applying Am.Sub.H.B. No. 317, 136 Ohio Laws, Part II, 2399, 

2400-2401); Ryan at 365-366 (applying Sub.S.B. No. 359, 144 Ohio Laws, Part II,

2391, 2398-2401). 

{¶ 37} But it is the current version of R.C. 111.15 that concerns us today, 

and Holt and Ryan provide little help in construing it. Neither Holt nor Ryan

applied the current definition of “rule” in R.C. 111.15(A)(1), because the 

resolutions at issue in those cases were adopted before the General Assembly 

enacted that definition. In fact, the versions of R.C. 111.15 that we applied in Holt

and Ryan did not define the word “rule.” See Ryan at 366 (discussing and applying 

Holt). Rather, in Ryan, the court used Black’s Law Dictionary to define the word 

“rule”: “A ‘rule’ is ‘[a]n established standard, guide, or regulation’ and a 

‘regulation’ is a ‘[r]ule of order prescribed by superior or competent authority 

relating to action of those under its control.’ ” (Brackets added in Ryan.) Ryan at 

366, quoting Black’s Law Dictionary 1331, 1286 (6th Ed.1990). This definition is 

significantly broader than the definition adopted by the General Assembly. 

Therefore, we do not find the analyses in Holt or Ryan persuasive. 

{¶ 38} In support of his argument that the execution protocol in 01-COM11 is a rule having a general and uniform operation, Jackson also relies heavily on 

two cases construing R.C. 111.15: Ohio Assn. of Cty. Bds. of Mental Retardation 

& Dev. Disabilities v. Pub. Emps. Retirement Sys., 61 Ohio Misc.2d 836, 585 

N.E.2d 597 (C.P.1990) (“Assn. of MRDD Bds.”), and B&T Express, Inc. v. Pub. 

Util. Comm., 145 Ohio App.3d 656, 763 N.E.2d 1241 (10th Dist.2001). 
January Term, 2021 

13 

{¶ 39} In Assn. of MRDD Bds., the common pleas court interpreted the 

phrase “general and uniform operation” from R.C. 111.15 as follows: “The statute 

does not require that the rule be broadly applied statewide. It is only required that 

the proposed rule be uniformly applied by the promulgating agency to those 

affected by the rule.” (Emphasis added.) Assn. of MRDD Bds. at 842-843; accord

B&T Express at 665. 

{¶ 40} But we have not adopted any such interpretation of the phrase 

“general and uniform operation.” To the contrary, in Nally, one of the factors we 

considered in determining whether a rule was generally and uniformly applicable 

was whether it “applie[d] to a large segment of the public rather than a narrow 

group.” Id., 143 Ohio St.3d 93, 2015-Ohio-991, 34 N.E.3d 873, at ¶ 30. 

Accordingly, we decline to adopt the reading of R.C. 111.15(A)(1) that was set 

forth in Assn. of MRDD Bds. 

B. Is the execution protocol an internal-management rule? 

{¶ 41} Even if the execution protocol is not a “rule * * * having a general 

and uniform operation,” R.C. 111.15(A)(1), it still must be filed in accordance with 

the statute if it is an internal-management rule, because R.C. 111.15(A)(1) includes 

internal-management rules within the definition of the word “rule.” 

{¶ 42} R.C. 111.15(A)(3) defines the term “internal-management rule” as 

“any rule, regulation, bylaw, or standard governing the day-to-day staff procedures 

and operations within an agency.” In this case, the trial court concluded that the 

protocol is an internal-management rule because it “governs the operations of” 

DRC.1

 But the Tenth District held otherwise: 

1. The trial court nonetheless concluded that the protocol was not a rule, because that court 

mistakenly thought that internal-management rules were exempt from the rule-filing requirements 

of R.C. 111.15(B). In fact, R.C. 111.15(A)(1)’s definition of “rule” includes internal-management 

rules. Internal-management rules are exempt from filing with JCARR, see R.C. 111.15(D)(4), but 

must still be filed with the secretary of state and LSC. Compare R.C. 119.01(C) (defining “rule” to 

generally exclude internal-management rules). 
SUPREME COURT OF OHIO

 14 

01-COM-11 is not “an internal management rule” as defined in R.C. 

111.15(A)(3), as it does not govern “the day-to-day staff procedures 

and operations within an agency.” Executions are not day-to-day 

procedures or operations. They do not occur on a regular or frequent 

basis, nor are they routine. 

2020-Ohio-506, 146 N.E.3d 605, at ¶ 19. 

{¶ 43} The inmates argue that the court of appeals was wrong to hold that 

an internal-management rule must govern operations that occur daily.2

 According 

to the inmates, the “only requirement is that the Agency intend[s] to apply the 

standard uniformly in those circumstances where the standard applies at all.” 

{¶ 44} However, this argument incorrectly conflates rules “having a general 

and uniform operation” with internal-management rules. Under R.C. 111.15(A), 

these are two distinct categories and both must comply with the statute to take 

effect. Thus, whether a directive is to be applied uniformly is irrelevant to whether 

it is an internal-management rule; to qualify as an internal-management rule, the 

directive must satisfy the definition contained in R.C. 111.15(A)(3). 

{¶ 45} The inmates cite Assn. of MRDD Bds., 61 Ohio Misc.2d 836, 585 

N.E.2d 597, and B&T Express, 145 Ohio App.3d 656, 763 N.E.2d 1241, in support 

of their argument that the protocol is an internal-management rule. But neither case 

supports their argument, because neither case addressed whether the administrative 

edict before the court fits the statutory definition of an internal-management rule. 

Instead, as we discuss above, both cases held that the edicts in question had a 

2. The inmates misstate the Tenth District’s conclusion here, as it did not limit internal-management 

rules to procedures and operations that occur “daily,” but those that are “regular,” “frequent,” and 

“routine.” 2020-Ohio-506, 146 N.E.3d 605, at ¶ 19.
January Term, 2021 

15 

general and uniform operation. See Assn. of MRDD Bds. at 842-843; B&T Express

at 665. 

{¶ 46} The court of appeals had it right. “Day-to-day” is defined as “a day 

at a time in unbroken succession; daily.” Webster’s Third New International 

Dictionary 578 (1993).3 See also Hall v. Progress Pig, Inc., 259 Neb. 407, 414, 

610 N.W.2d 420 (2000), quoting Webster’s Encyclopedic Unabridged Dictionary 

of the English Language 370 (1989) (“ ‘[d]ay-to-day’ ” means “ ‘occurring each 

day; daily’ ”); Random House Dictionary of the English Language 510 (2d 

Ed.1987). 

{¶ 47} As used in R.C. 111.15(A)(3), “day-to-day” is perhaps best 

understood as not literally meaning daily operations and procedures. However, the 

court of appeals’ reading of “day-to-day” as “frequent” or “routine,” 2020-Ohio506, 146 N.E.3d 605, at ¶ 19, preserves the core of the phrase’s meaning. And 

other courts have similarly construed “day-to-day.” See Hall at 414 (“day-to-day 

labor and management” of a farm or ranch means “those activities that occur as a 

routine part of the farm or ranch operation”); Enix v. Burrell, 572 F.Supp. 1364, 

1369-1370 (S.D.Ohio 1983) (“day-to-day management” of a pension plan includes 

“ordinary administration” but not “extraordinary” matters). Indeed, the inmates’ 

argument simply misconstrues the statutory language of R.C. 111.15. 

{¶ 48} And as the court of appeals said, executions are not routine 

occurrences. Since 1999, Ohio has carried out or attempted to carry out 58 death 

sentences. See Ohio Attorney General, 2020 Capital Crimes Report, at 34 

(identifying 56 executions), https://www.ohioattorneygeneral.gov/ 

2020CapitalCrimesReport (accessed Aug. 12, 2021) [https://perma.cc/7CXTECK7]; Broom v. Shoop, 963 F.3d 500, 504-506, 513 (6th Cir.2020) (discussing 

3. “Day-to-day” may also mean “a day at a time without provision for continuance thereafter,” as 

in “life * * * lived on an aimless, day-to-day basis.” Webster’s Encyclopedic Dictionary of the 

English Language 370 (1989). But it is hard to see how that definition could apply to “staff 

procedures and operations within an agency,” R.C. 111.15(A)(3).
SUPREME COURT OF OHIO

 16 

the two unsuccessful attempts). An operation or procedure that is performed on 

average fewer than three times a year is hardly a “day-to-day” occurrence under 

any definition. It follows that the execution protocol in 01-COM-11 is not an 

“internal-management rule” as defined in R.C. 111.15(A)(3). 

C. Is the protocol an “order respecting the duties of employees”? 

{¶ 49} Finally, if the execution protocol is an “order respecting the duties 

of employees,” R.C. 111.15(A)(1), then it is not a “rule.” The court of appeals held 

that the protocol is an order respecting the duties of employees. As that court 

explained: 

01-COM-11 is an “order respecting the duties of employees” 

because it establishes the methods, processes, and procedures to be 

employed by ODRC personnel in carrying out the execution of a 

condemned inmate. 01-COM-11 is a 21-page document setting 

forth detailed instructions, procedures, and guidelines to be followed 

by “all individuals involved in carrying out a court-ordered death 

sentence.” (01-COM-11, Section III.) It stands to reason that

ODRC employees are the “individuals involved in carrying out a 

court-ordered death sentence.” The policy sets forth numerous 

procedures to be accomplished by ODRC personnel 30 days, 14 

days, 24 hours, and 15 minutes prior to a scheduled execution, as 

well as procedures to be employed post-execution. The policy also 

includes extensive instructions directing employees in the 

procurement, preparation, and administration of the drugs to be

utilized in the execution process. 

2020-Ohio-506, 146 N.E.3d 605, at ¶ 21. 
January Term, 2021 

17 

{¶ 50} This analysis is correct. It is true, as the inmates argue, that certain 

provisions of the protocol affect people who are not DRC employees—most 

obviously, the inmate being executed, but also the inmate’s family, clergy, counsel, 

and the news-media personnel covering the execution. Nevertheless, as we 

discussed above, the protocol amounts to an instruction manual on how to perform 

an execution. As one would expect of such a manual, nearly all of it deals with the 

duties of DRC personnel participating in an execution. 

D. Is the protocol a “rule” because it was adopted under the authority of 

R.C. 5120.01? 

{¶ 51} R.C. 5120.01 provides, in part: 

The director of rehabilitation and correction is the executive 

head of the department of rehabilitation and correction. All duties 

conferred on the various divisions and institutions of the department 

by law or by order of the director shall be performed under the rules 

and regulations that the director prescribes and shall be under the 

director’s control. 

{¶ 52} The inmates point to the provision of R.C. 5120.01 that requires 

DRC to carry out all its duties “under the rules and regulations that the director 

prescribes” to argue that this language requires whatever DRC does to fulfill its 

duties to be done under a “rule or regulation.” And their argument implicitly 

assumes, without attempting to demonstrate, that “rules and regulations” as used in 

R.C. 5120.01 means only those rules that have been adopted in accordance with the 

rule-filing procedures of R.C. 111.15. 

{¶ 53} The inmates further note that while R.C. 5120.01 applies specifically 

to DRC, R.C. 111.15 applies generally to state agencies that are not subject to the 

Administrative Procedure Act. Citing the principle that “specific statutory 
SUPREME COURT OF OHIO

 18 

provisions prevail over conflicting general statutes,” State v. Chippendale, 52 Ohio 

St.3d 118, 120, 556 N.E.2d 1134 (1990), they contend that R.C. 5120.01 prevails 

over the provision of R.C. 111.15(A) that “orders regarding the duties of 

employees” are not “rules” and are therefore not subject to the filing requirement 

of R.C. 111.15(B). 

{¶ 54} Generally, when there is a conflict between a general statutory

provision and a more specific statutory provision, the specific provision controls. 

MacDonald v. Cleveland Income Tax Bd. of Rev., 151 Ohio St.3d 114, 2017-Ohio7798, 86 N.E.3d 314, ¶ 27, citing Scalia & Garner, Reading Law: The 

Interpretation of Legal Texts 183 (2012). But when two statutes are capable of 

coexisting, it is the duty of the courts to regard each as effective and, when possible, 

to interpret them in a way that gives effect to both. Morton v. Mancari, 417 U.S. 

535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). Thus, if we can, we must construe 

R.C. 5120.01 so that it does not conflict with R.C. 111.15(A). If the conflict 

between the two statutes is irreconcilable, then may we decide that one prevails 

over the other. See State v. Pribble, 158 Ohio St.3d 490, 2019-Ohio-4808, 145 

N.E.3d 259, ¶ 13.

{¶ 55} R.C. 5120.01 conflicts with R.C. 111.15(A) only if we adopt the

inmates’ proposed reading of R.C. 5120.01, i.e., that the director of DRC must 

formally promulgate an administrative rule to govern every duty carried out by 

DRC personnel. As the state points out, that covers a lot of territory—from 

deciding the direction in which the lunch line should move to dealing with an 

inmate’s unforeseen medical emergency. And the inmates cite no language in R.C. 

5120.01 or elsewhere that indicates that the term “rules and regulations” in that 

statute refers only to “rules adopted through the rule-filing procedures of R.C. 

111.15.” Thus, the two statutes are reconcilable and we thus reject the argument 

that R.C. 5120.01 requires that all of DRC’s duties be carried out pursuant to 

formally promulgated rules. 
January Term, 2021 

19 

E. The inmates’ other arguments 

{¶ 56} The inmates’ remaining arguments take us away from the controlling 

statutes and may be disposed of quickly. 

{¶ 57} The inmates argue that when an administrative agency engages in

filling in legislative “gaps,” it must do so by adopting rules. Thus, they contend 

that 01-COM-11 was required to be rule-filed because it specifies details that are 

not prescribed by legislation. They cite no statute to support this argument, and 

instead quote the following language from N.W. Ohio Bldg. & Constr. Trades 

Council v. Conrad, 92 Ohio St.3d 282, 289, 750 N.E.2d 130 (2001), quoting Morton 

v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974): “As the United 

States Supreme Court has noted, ‘[t]he power of an administrative agency to 

administer a * * * program necessarily requires the formulation of policy and the 

making of rules to fill any gap left, implicitly or explicitly,’ by the legislature.” 

(Brackets, ellipsis, and emphasis added in N.W. Ohio Bldg. & Constr. Trades.) 

{¶ 58} But this unremarkable general observation does not mean that all 

legislative gaps must be filled by formal rulemaking. That question was not before 

us in N.W. Ohio Bldg. & Constr. Trades, because the rules challenged in that case 

were formally promulgated as provisions of the Administrative Code. Id. at 285-

292. 

{¶ 59} Indeed, the great majority of directives that agencies issue, whether 

formally promulgated or not, fill in legislative gaps by solving matters that have 

not been specified by statutes. Accordingly, this argument does not help to 

distinguish between administrative edicts that must be rule-filed under R.C. 

111.15(A) and those that need not be. 

{¶ 60} The inmates also argue that the protocol should have been 

promulgated under R.C. 111.15 because the drafting, filing, and reviewing 

requirements of R.C. 111.15 are essential to prevent agencies from crossing “the 
SUPREME COURT OF OHIO

 20 

line between legislation and rulemaking.” However, this policy argument is quite 

untethered from the language of R.C. 111.15. 

{¶ 61} Finally, the inmates note that outside the death-penalty context, DRC 

has promulgated administrative rules dealing with some of the matters that are also 

covered by 01-COM-11, such as attorney-client access and the transfer of prisoners 

between institutions. From this, they infer that DRC has “recognized that these 

matters are subject to the rulemaking requirements of R.C. 111.15.” But of course, 

the fact that DRC has used formal rulemaking in the past to address certain subjects 

in no way amounts to an admission that it must do so when it addresses those same 

subjects in the future. 

IV. Conclusion 

{¶ 62} We hold that the inmates have standing to challenge the validity of 

the execution protocol described in 01-COM-11. We reject the inmates’ arguments, 

however, on their merits. We hold that 01-COM-11 is neither a rule having a 

general and uniform application nor an internal-management rule and that it is an 

order dealing with the duties of DRC’s employees. Therefore, DRC was not 

required to file 01-COM-11 pursuant to R.C. 111.15. We affirm the judgment of 

the court of appeals.4

Judgment affirmed. 

O’CONNOR, C.J., and KENNEDY, DEWINE, DONNELLY, STEWART, and 

BRUNNER, JJ., concur. 

_________________ 

 Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, 

Michael J. Hendershot, Chief Deputy Solicitor General, Charles A. Schneider, 

4. Counsel for O’Neal has called this court’s attention to an inadvertent misstatement that counsel 

had made during oral argument. We note the correction, and we further note that the misstatement 

in no way affects our disposition of this case. 
January Term, 2021 

21 

Criminal Justice Section Chief, and Brenda S. Leikala, Senior Assistant Attorney 

General, for appellees. 

 Timothy Young, Ohio Public Defender, and Richard A. Cline and Randall 

Porter, Assistant State Public Defenders; Dale A. Baich, Assistant Federal Public 

Defender; and Porter, Wright, Morris & Arthur, L.L.P., and L. Bradfield Hughes, 

for appellant Cleveland Jackson in case No. 2020-0676. 

 S. Adele Shank and Lawrence J. Greger, for appellant James D. O’Neal in 

case No. 2020-0683. 

_________________