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“Shall” Does Not Always Mean “Shall”

Published: Apr 28, 2023 by Brandon Smith

Late last year, the Ohio Supreme Court enshrined what most of us practicing in this field already knew: “shall” does not always mean “shall.”

As we have previously addressed, upon appeal of an agency order, Ohio law requires the agency to certify a complete record of its proceedings for the court to review. If the agency fails to do so, the court can rule against the agency and require the agency to reverse their decision and enter a finding in favor of the licensee.

The statute in question states that “Failure of the agency to comply within the time allowed, upon motion, shall cause the court to enter a finding in favor of the party adversely affected.” Despite this mandatory language, courts very rarely, in our experience, ruled against agencies for technical violations of this requirement. Instead, courts regularly required licensees to prove that they were prejudiced by the exclusion of something from the certified record to prevail.

Some courts had distinguished complete failure to file the record or serious omissions from the record from “mere” omissions when deciding whether prejudice was required. The Ohio Supreme Court eliminated this distinction and now requires prejudice to be shown in all cases.

In doing so, the Court interpreted the “adversely affected” language as inherently requiring a showing of prejudice. In the case it considered, Goudy v. Tuscarawas Cty. Pub. Defender, the agency had failed to include the transcript of one day of a multi-day hearing when it certified the record. When it discovered its error, the agency notified the court and filed the missing part of the record. The Ohio Supreme Court agreed with the trial court: because the late filing would not have caused a delay to the final decision in the case, no prejudice existed.

It is now unclear what, if anything, constitutes prejudice sufficient to require a finding in favor of a licensee. What is clear, however, is that prejudice must always be shown, likely even if the entire record is certified late.

If you have been sanctioned by a state agency and would like to discuss your appeal options, you should consider contacting one of the licensed attorneys at Graff & McGovern, LPA. Attorney Brandon Smith is available at (614) 228-5800, x. 7 and