Ohio Government, Actually

Three Business Days Means Three Business Days

West Geauga told Brian Ames it was standing by its response to his public-records request. Ames sued the next day, itching to let the court settle the disagreement. He was still too early.

The school board had received his presuit complaint on Monday, April 28, 2025, after he challenged redactions the board had made to a check register before production. The board reaffirmed its response on Tuesday, and Ames filed Wednesday.

Under R.C. 149.43(C)(1), however, the board had three business days after receipt to cure or otherwise address his complaint. The day the board received the presuit complaint didn’t count, so Ames was supposed to wait through Thursday and could file Friday. So, the court dismissed the case. The Ohio Supreme Court affirmed dismissal without deciding whether the redactions were proper. State ex rel. Ames v. West Geauga, 2026-Ohio-4076, ¶¶ 6–8, 18–19.

The part of this decision that struck me is the fact that even though the board confirmed to Ames that it wasn't changing its position before the three-day period was over, Ames still could not file until the three business days had passed. I read that as leaving room for an office to reconsider during the remaining time, rather than treating its first response to the complaint as the end of the discussion.

You may have already told the requester that the denial stands when counsel notices a problem with a redaction, or an employee finds a record that was missed. I suggest correcting the response at that point, instead of quietly sweeping it under the rug. There’s no need to defend the earlier answer just because it has already gone out, and producing the record before suit may avoid a dispute that would otherwise cost considerably more to resolve.

The board didn’t change its mind in Ames, so the Court didn’t need to decide how a change in position before the end of the cure period would change the outcome of the case. But the requester’s obligation to wait gives the office a chance to do more than repeat its denial. If a second review turns up a mistake, use that chance to fix it.

The Immunity Appeal We Should Be Able to Take for Granted

This one is mostly for the lawyers who defend public entities (and/or the people who get lost in the less practical philosophical questions in the practice of law). Those of us who regularly litigate political subdivision immunity sometimes take this for granted: when the trial court denies immunity to our clients, we still aren’t going to trial any time soon. We can appeal!

A recent split decision from the Eighth District made me pause and chew on that assumption.

In Alkayali v. Case Western Reserve University, 2026-Ohio-4054, the university and its officers appealed the denial of their immunity-based motion to dismiss. Three judges produced three opinions, with two voting that the trial court’s decision was not a final, appealable order.

The lead opinion concluded that even though CWRU operates a statutorily authorized police department, it was not a political subdivision, so the decision to deny it immunity under RC Ch. 2744 was not a final appealable order.

Though the concurring opinion also concluded that the trial court’s decision was not a final appealable order, it criticized the lead opinion for analyzing and deciding whether CWRU was a political subdivision for purposes of RC 2744 immunities. The concurrence stated:

“The trial court’s denial did not find that CWRU was a political subdivision or that political-subdivision immunity applies . . . I would not speculate as to what the trial court meant in its journal entry regarding whether CWRU is a political subdivision entitled to immunity. We must be mindful that this court’s function is that of a reviewing court and ‘[w]hen there is no determination before us to review, this Court cannot step into the role of the trial court and determine a matter for the first time on appeal.’ . . . Because there was no determination by the trial court that CWRU is entitled to political-subdivision immunity, I would find that this appeal is interlocutory and dismiss for lack of final appealable order.”

The court dismissed the appeal without a majority holding on CWRU’s status as a political subdivision.

So why does this matter? At first glance, this looks like a case about whether a private entity that operates a police force can claim immunity under Chapter 2744. Cool, some well-reasoned guidance from the lead opinion on a familiar issue. But what kept nagging at me was whether the concurrence’s line of thinking, if it caught on, could affect my public and private clients’ prospects for taking interlocutory appeals.

Does this opinion mean to suggest that a trial court’s order denying a motion to dismiss is only appealable if it addresses whether the defendant is a political subdivision entitled to immunity?

And when an entity’s status as a political subdivision is disputed, could the absence of an express ruling on that issue keep it from taking an immediate appeal?

You’re likely familiar with RC 2744.02(C), which makes an order final when it denies a political subdivision or its employee the “benefit of an alleged immunity.” The statute reaches beyond Chapter 2744, including federal qualified immunity asserted by political subdivision employees. The rule exists because Ohio public policy favors determining immunity issues early in order to save political subdivisions (and taxpayers) the financial and other burdens of litigation.

In DiGiorgio v. Cleveland, 2011-Ohio-5824, the trial court had denied Cleveland’s motion for judgment on the pleadings that challenged both the sufficiency of the allegations and asserted a statutory immunity defense. The Eighth District, sitting en banc, held that denial of a motion for judgment on the pleadings asserting immunity was appealable, even though the trial court did not issue an opinion as to why it denied the motion (and made no explicit finding regarding whether Cleveland was a political subdivision for purposes of RC Ch. 2744).

In Supportive Solutions v. Electronic Classroom of Tomorrow, 2013-Ohio-2410, the Ohio Supreme Court approved of DiGiorgio. Reviewing the denial of leave to ECOT to add an affirmative immunity defense to its answer, it expressly rejected the reasoning that an order was unappealable because it made no determination about immunity, emphasizing the order’s effect on the asserted defense. (This decision is useful when an order denies the benefit of alleged immunity even without deciding the merits of that defense.)

The Eighth District also recognized in Riscatti v. Prime Properties Ltd. Partnership, 2012-Ohio-2921, ¶ 23, that an order denying the benefit of alleged immunity can be appealable even when it does not address immunity. The defendants’ status as political subdivisions was undisputed there, too. Id. at ¶ 28.

OK, so nobody in their right mind was questioning whether Cleveland was a political subdivision in DiGiorgio, and RC 2744.01(F) expressly includes community schools like ECOT, so its status was rightfully unquestioned in Supportive Solutions. Perhaps the concurring judge in Alkayali meant to say that the court of appeals should not decide issues briefed by the parties in the appellate court but left undecided by the trial court; whatever the intended limit, taken at face value it could be construed to mean an order denying immunity to a political subdivision is not appealable unless the trial court addressed whether the defendant is a political subdivision under RC 2744.01(F).

Let’s assume that I’m being ridiculous and the concurring opinion in Alkayali does not suggest that a trial court needs to state explicitly that it finds a defendant is a political subdivision before its decision denying immunity to that defendant can be considered a final, appealable order. Even on that narrower reading, adopting the concurrence’s reasoning could make the right to an immediate appeal turn on whether the trial court expressly addressed the disputed status issue.

For example, say a defendant whose status as a political subdivision is disputed moves to dismiss claims against it under RC Ch. 2744, asserting that it qualifies and that no exception to immunity applies. If the trial court denies the motion because the allegations could support an exception, without deciding the status issue (or provides no explanation for the denial at all!), applying the concurrence’s reasoning could leave that defendant waiting for an express status ruling before it can appeal. If that ruling never comes, appellate review could be delayed until after trial.

Finally, as a practical matter, the split in Alkayali could lengthen the litigation process. If the concurring judge had joined the lead opinion, a majority holding that CWRU was not a political subdivision would ordinarily have governed further proceedings as the law of the case, subject to further review. Without a majority decision on status, that question remains open, potentially requiring more litigation in the trial court and another appeal.

The concurring opinion in Alkayali is still only a single concurrence and does not change the status of the law. For attorneys, I suggest always making sure you address the issue of whether your client is a political subdivision – for entities that are obviously political subdivisions, it only takes one sentence of your brief, and it’s always been good practice to do so anyway.

My objection to the concurrence in Alkayali is this: when an order denies the benefit of alleged immunity, access to appellate review should not depend solely on whether the trial court expressly discussed the defendant’s status as a political subdivision.

An incomplete inventory, but not an unconstitutional search: Henderson v. New Holland

I think the inventory-search discussion in Henderson is worth a close read. The officers did not finish the paperwork their policy required. That did not make the search unconstitutional, but I wouldn’t read the decision as a reason to leave the paperwork unfinished.

The Sixth Circuit considered whether the officers’ departures from the inventory policy made the search unconstitutional in Henderson v. Village of New Holland, No. 26-3051, slip op. (6th Cir. Aug. 7, 2026), decided August 7. Although the case involved several challenges to the officers’ conduct, its discussion of inventory searches is particularly useful for police departments and the public officials who advise them.

What happened

New Holland officers stopped Cody Henderson for driving with expired registration tags after previously citing him and warning him about the same problem. They impounded his car and conducted an inventory search, during which they forced open a locked tote containing hemp, CBD, and similar substances. Henderson was also arrested for obstructing official business during the encounter. The charges were later dismissed, and he sued the officers and the village.

The district court granted summary judgment on all claims against the village but allowed certain Fourth Amendment and state-law malicious prosecution claims against Police Chief William Lawless to proceed. On appeal, the Sixth Circuit reversed, concluding that no Fourth Amendment violation had occurred.

How the policy violations affected the search

An inventory search allows officers to account for the contents of a vehicle lawfully taken into police custody without obtaining a search warrant. The exception does not permit officers to impound a vehicle simply because they suspect it contains evidence and then call the resulting search an inventory. Standardized criteria governing impoundment and the scope of the search help distinguish a legitimate inventory from an investigative search conducted under another name. Id., slip op. at 8–9.

New Holland had an ordinance authorizing impoundment and a policy requiring a complete inventory of an impounded vehicle’s contents. The policy also required officers to list all property and make two copies of the inventory. In Henderson’s case, the officers made only one copy, which apparently listed only the items found inside the tote.

Henderson argued that those departures made the search unconstitutional, but the Sixth Circuit rejected that conclusion. The officers had a legitimate basis to impound the car because he continued driving with expired registration despite the earlier citation and warnings, and the inventory policy supplied direction for the search. The deficiencies in the subsequent paperwork did not, by themselves, establish that the officers had used the inventory process to avoid the Fourth Amendment’s requirements. Id., slip op. at 9–10.

Reviewing the inventory policy

For police departments, this is a useful opportunity to review impoundment procedures along with inventory-search policies. A policy explaining how to search a vehicle does not resolve whether officers may take custody of it in the first place, so counsel should review the authority for impoundment as well as the instructions governing the search.

I would still want to understand why the inventory was incomplete. The court’s conclusion resolves the constitutional question in this case, but the department still has property to account for and a policy it expects officers to follow. If incomplete inventories are a recurring problem, I suggest looking at whether the instructions are clear and whether officers have what they need to complete them.

Congratulations to Zachary Weigel at Freeman Mathis & Gary, who argued the appeal on behalf of Chief Lawless and obtained this reversal.

A Good Exhaustion Defense Needs Good Records

Raising the defense that a plaintiff did not exhaust his grievance remedies can seem like an easy way to get a case dismissed, until the whole case turns on a date nobody can prove with any confidence.

That’s what happened in Tubbs v. Payton, No. 25-1950, 2026 WL 2664699 (6th Cir. Sept. 10, 2026).

The facts

Here’s what everyone knew: while Danyale Tubbs was incarcerated, a mailroom employee rejected a book written by his sister.

Tubbs challenged the rejection through the prison’s administrative process, and the prison held a hearing on April 5, 2022.

What happened after that was considerably less clear.

Tubbs said the hearing officer initially agreed that he should receive the book, but he did not learn that his request was again rejected until May 9, when he received a hearing report. He filed his Step I grievance that same day.

MDOC rejected the grievance as untimely, apparently measuring the deadline from April 5. The problem was that the record did not cleanly establish that April 5 was the date Tubbs actually learned the issue had been resolved against him.

The parties disputed whether April 5 was the first or second hearing. There were different versions of the hearing report. And although the hearing officer testified about his usual practice of preparing reports and sending them to the mailroom on the day of a hearing, there was no evidence establishing when Tubbs actually received the report.

The district court granted summary judgment, finding that Tubbs had failed to exhaust his administrative remedies and buying the prison’s argument that he filed his Step I grievance too late. The Sixth Circuit reversed.

Why the exhaustion defense failed

Because failure to exhaust is an affirmative defense, Payton had the burden to prove that Tubbs did not file his grievance in accordance with the prison’s rules. That meant she had to establish that Tubbs missed the grievance deadline, which in turn required her to establish when that deadline began to run.

Tubbs’s sworn declaration said he did not learn the final outcome until May 9. His grievance documents also identified May 9 as the relevant date, and the Sixth Circuit concluded that the competing evidence created a genuine factual dispute that had to be resolved at a trial.

The Sixth Circuit did not decide that Tubbs had properly exhausted his claims. It decided only that Payton had not carried her burden to prove that he hadn’t.

Keeping the delivery record

If a grievance deadline runs from notice of a decision, the file should make it possible to determine when that notice was actually given.

I’ve seen jails that do not consistently keep track of things like when an inmate received a decision, who provided the decision, which version of a document was provided, or when a particular step in the grievance process actually occurred. I understand why. Jails are busy places, recordkeeping systems are not always great, and the people handling grievances are usually doing plenty of other things at the same time. But those details become very important once the case gets into litigation.

Tubbs is a good example. The prison had evidence showing when a hearing occurred and testimony about how reports were normally handled, but it did not have clean evidence showing when Tubbs learned the result.

So keep the delivery record, acknowledgment, kiosk entry, mail log, or whatever your system uses to show that a decision actually reached the inmate. If a report is revised or replaced, the file should also make clear which version was given to the inmate and when.