Immediate Applicability of H.B. 265’s Public-Records Mandamus Prerequisites: Ohio Supreme Court Mandates Dismissal Without Pre‑Suit Complaint Affirmation

Case: State ex rel. Jordan v. Dept. of Rehabilitation & Correction, et al., Supreme Court of Ohio, 2025-Ohio-3051 (Aug. 27, 2025)

Disposition: Merit decisions without opinions – motions to dismiss granted; DeWine, J., concurring (Deters, J., joining); Kennedy, C.J., dissenting (with opinion); Fischer, J., dissenting.

Introduction

This case sits at the intersection of Ohio’s Public Records Act and newly enacted procedural prerequisites introduced by 2024 Sub.H.B. No. 265 (H.B. 265). The relator, Robert Jordan Jr., submitted public-records requests on December 11, 2024, then filed a mandamus action in the Supreme Court of Ohio on April 9, 2025—the very day H.B. 265 took effect. The statute, as amended, requires a requester to first transmit a complaint to the records custodian, allow three business days to cure, and then file a written affirmation with any mandamus petition attesting to compliance. Jordan did not file the affirmation.

Respondents—the Ohio Department of Rehabilitation and Correction (including Lebanon and Mansfield Correctional Institutions) and the Northeast Ohio Correctional Center (NEOCC)—moved to dismiss based on Jordan’s failure to meet these new prerequisites. The Supreme Court granted dismissal. Although the Court issued no majority opinion, Justice DeWine’s concurrence, joined by Justice Deters, explains why the new procedural requirements apply to a lawsuit filed after their effective date, while Chief Justice Kennedy’s dissent argues prior precedent requires applying the version of R.C. 149.43 in effect at the time of the request. Justice Fischer also dissented without opinion.

Summary of the Judgment

The Supreme Court of Ohio dismissed Jordan’s mandamus action for failing to meet the procedural filing requirements added to R.C. 149.43(C) by H.B. 265. The concurring opinion provides the operative rationale: because the amendments are procedural (prescribing the method for enforcing rights rather than altering the rights themselves), they govern all proceedings commenced after the amendments took effect. The dissent would have applied the version of the Public Records Act in effect when the public-records requests were made and, therefore, would have denied the motions to dismiss and allowed the case to proceed.

Notably, the Court did not issue a majority opinion; however, the outcome aligns with the concurring rationale that the failure to include the required written affirmation under R.C. 149.43(C)(2) mandates dismissal once the amendments are in effect.

Analysis

Precedents Cited

• State ex rel. Holdridge v. Indus. Comm., 11 Ohio St.2d 175 (1967): Established the core distinction: substantive law creates duties/rights, while procedural law prescribes methods of enforcement. Laws of a remedial/procedural nature apply to proceedings conducted after their adoption. This is the backbone of the concurrence’s analysis.
• State ex rel. Slaughter v. Indus. Comm., 132 Ohio St. 537 (1937) and Smith v. New York Cent. RR. Co., 122 Ohio St. 45 (1930): Earlier articulation of the substantive/procedural distinction, emphasizing that changes to remedy don’t affect accrued substantive rights.
• Estate of Johnson v. Randall Smith, Inc., 2013-Ohio-1507; Longbottom v. Mercy Hosp. Clermont, 2013-Ohio-4068; State ex rel. Grendell v. Walder, 2022-Ohio-204: Recent applications of the rule that procedural statutes generally apply immediately to cases proceeding after their effective date.
• State v. Brooks, 2022-Ohio-2478 (DeWine, J., concurring in judgment only): Reinforces the prospective application of new procedural rules to proceedings post-enactment.
• State ex rel. Wells v. Lakota Local Schools Bd. of Edn., 2024-Ohio-3316: Describes the Public Records Act framework, including the mandamus mechanism to enforce the duty to provide records within a reasonable time.
• State ex rel. Kesterson v. Kent State Univ., 2018-Ohio-5108: Footnote notes the governing statute was the version effective when the request was made and when the original action commenced—supporting a filing-date focus for procedural changes.
• State ex rel. Cordell v. Paden, 2019-Ohio-1216; State ex rel. Martin v. Greene, 2019-Ohio-1827; State ex rel. Summers v. Fox, 2021-Ohio-2061: Cited by the dissent to support applying the version of R.C. 149.43 in effect when the request was made. The concurrence critiques these decisions as unreasoned or misreading Kesterson, underscoring their limited precedential weight.
• State ex rel. Doe v. Smith, 2009-Ohio-4149: Applied the version of R.C. 149.43 in effect when the request was made; the concurrence distinguishes it because both the request and filing post-dated the amendment, so no retroactivity issue was implicated.
• McCullough v. Bennett, 2024-Ohio-2783; The Law of Judicial Precedent (Garner et al.): Cited in support of the proposition that unreasoned statements carry weak precedential force.
• Rapanos v. United States, 547 U.S. 715 (2006): Referenced metaphorically (“turtles all the way down”) to critique the stacking of thin precedent.
• Lunsford v. Sterilite of Ohio, L.L.C., 2020-Ohio-4193; State ex rel. Scott v. Cleveland, 2006-Ohio-6573: Ohio’s 12(B)(6)-style standard—accept facts as true, dismiss only if it appears beyond doubt no set of facts would entitle relief. Applied by the dissent to reject NEOCC’s additional dismissal arguments at the pleadings stage.

Legal Reasoning

1) Concurrence (DeWine, J.)—Procedural amendments govern filings after their effective date. The concurrence frames H.B. 265’s changes as procedural: they do not diminish or expand the underlying right of access to public records; they simply prescribe a new pre-suit process and a filing affirmation. Under long-settled Ohio law, new procedural statutes govern proceedings commenced after their effective date. Because Jordan filed on April 9, 2025—the very day the amendments took effect—his filing had to comply with the new prerequisites (pre-suit complaint to the custodian, three-business-day cure window, and a written affirmation filed with the mandamus petition). The statute uses mandatory language: if the affirmation is not filed, “the suit shall be dismissed.” R.C. 149.43(C)(2). The concurrence therefore agrees the action must be dismissed.

On the question of which version of R.C. 149.43 applies, the concurrence critiques the line of cases (Cordell, Martin, Summers) that applied the version in effect at the time of the request. It characterizes them as unreasoned and as misreading Kesterson. Crucially, the concurrence invokes the substantive/procedural framework (Holdridge and progeny) to argue that the filing-date rule controls when the change is procedural.

2) Dissent (Kennedy, C.J.)—Adhere to prior cases applying the statute in effect on the request date. The dissent emphasizes stare decisis and points to a line of unanimous decisions stating that courts apply the version of R.C. 149.43 in effect when the request was made. On that approach, because Jordan requested records before H.B. 265 took effect, the new procedural prerequisites (and the new limitations on damages for incarcerated relators) should not apply, and the motions to dismiss should be denied. The dissent also faults respondents for not engaging that precedent or asking the Court to overrule it, and invokes judicial restraint to follow the existing line until overruled.

Separately, as to NEOCC’s additional grounds for dismissal, the dissent would reject them at the pleadings stage: Jordan alleged he transmitted requests that were forwarded to NEOCC; those allegations must be taken as true, and the Court should not reach beyond the complaint’s four corners. Likewise, NEOCC’s status (e.g., ownership/management by CoreCivic) is not appropriately resolved on a motion to dismiss.

3) The Court’s bottom line and its practical effect. Although there is no majority opinion, the Court’s disposition—granting dismissal on the effective date of H.B. 265 because no affirmation accompanied the filing—aligns with the concurrence’s procedural-governs-at-filing analysis. In practice, this decision signals that failure to follow the new pre-suit steps and file the written affirmation will be fatal to public-records mandamus actions commenced after April 9, 2025, regardless of when the request was made.

Impact

• Immediate procedural compliance required in mandamus filings: Requesters must build in a pre-suit step: transmit a complaint to the custodian, allow three business days to cure, and include a written affirmation with the mandamus petition attesting to compliance and lack of cure. Omission will result in mandatory dismissal.
• Filing-date focus for procedural rules: For public-records mandamus actions, the Court’s judgment—bolstered by the concurrence—strongly indicates that procedural amendments apply to actions filed after the effective date, even if the request predates the amendment. Litigants should proceed as though filing-date controls for procedural changes.
• Reduced exposure and a cure opportunity for public offices: Agencies now have a statutory three-business-day cure window upon receipt of a pre-suit complaint. This could decrease mandamus filings and incentivize quick resolution of disputes without litigation.
• Heightened traps for the unwary: Pro se requesters and incarcerated relators are particularly at risk. The amendment also eliminates statutory damages for incarcerated requesters (an issue noted but not resolved in this case), signaling a tightened remedial regime in suits brought by incarcerated individuals.
• Stare decisis tension: The dissent flags a live question: does the Court abandon the “request-date controls” line of cases (Cordell, Summers, Martin) for procedural changes? Future cases may clarify or expressly overrule that line. Until then, today’s outcome suggests the Court’s direction.
• Pleadings practice reinforced: The dissent reiterates Ohio’s generous pleading standard—dismissal is proper only when it appears beyond doubt no set of facts would entitle relief—and cautions against resolving factual disputes (e.g., whether NEOCC is a proper respondent) on a motion to dismiss.

Complex Concepts Simplified

• Mandamus: A special writ ordering a public official or body to perform a clear legal duty. Under the Public Records Act, mandamus enforces the duty to promptly provide public records.
• Public Records Act (R.C. 149.43): Guarantees access to public records held by public offices and persons responsible for public records. Custodians must provide records within a reasonable time unless an exception applies.
• H.B. 265’s new prerequisites (R.C. 149.43(C)(1)-(3)):
  • Before filing a mandamus action, the requester must transmit a complaint to the custodian identifying the alleged violation.
  • The custodian has three business days to cure or otherwise address the complaint.
  • The mandamus petition must include a written affirmation that these steps were followed and that the violation was not cured. If the affirmation is missing, “the suit shall be dismissed.”

  Note: The concurrence contains a likely scrivener’s error referencing R.C. 149.32(C)(2); the correct citation is R.C. 149.43(C)(2).

• Procedural vs. substantive law: Substantive law defines rights and obligations (e.g., the right to obtain records). Procedural (or remedial) law prescribes how to enforce those rights (e.g., what steps must be taken before filing suit). Procedural changes generally apply to cases filed after the change takes effect.
• Retroactivity and vested rights: Ohio’s anti-retroactivity principle bars statutes that impair vested substantive rights. By contrast, new procedural rules typically apply immediately because they regulate remedies and processes, not the underlying rights.
• “Shall be dismissed”: Mandatory statutory language that leaves the court with no discretion if the predicate condition (here, absence of the affirmation) is met.
• “Public office” includes functional equivalents: Private entities performing a governmental function can be treated as a public office for Public Records Act purposes under the functional-equivalence test (see, e.g., Oriana House). Whether a private prison operator is subject to the Act is a fact-intensive question often unsuitable for resolution on a motion to dismiss.
• Motion to dismiss standard (Ohio): Courts accept all factual allegations as true and will dismiss only if it appears beyond doubt that the relator can prove no set of facts entitling relief. Courts do not go beyond the complaint and its attachments at this stage.
• Merit decision without opinion: The Court resolves the merits by judgment entry without a full majority opinion. Separate concurrences or dissents may reveal the competing rationales; the binding “holding” is the judgment, and the separate writings have persuasive force.

Practical Guidance for Future Public-Records Litigants

• Before filing mandamus, transmit a written complaint to the records custodian clearly identifying the alleged violation.
• Wait three business days for the custodian to cure or otherwise resolve the issue. Keep proof of transmission and dates.
• When filing the mandamus petition, include a signed written affirmation stating:
  • you properly transmitted the complaint to the custodian;
  • the failure has not been cured or resolved to your satisfaction; and
  • at least three business days elapsed between transmission and filing.
• File in the proper forum and name the proper respondent(s) who are the “public office or person responsible for public records.” Attach your request, the pre-suit complaint, and any responses as exhibits.
• For state-agency records, consider the alternative process in the Court of Claims under R.C. 2743.75, which remains available and is not affected by the mandamus-specific prerequisites of H.B. 265.

Conclusion

This decision marks a consequential shift in the practical enforcement of Ohio’s Public Records Act. While the Court issued no majority opinion, the dismissal—coupled with Justice DeWine’s concurrence—establishes that H.B. 265’s new procedural prerequisites apply to mandamus actions filed on or after April 9, 2025, even when the underlying public-records request predated that day. The statutory command that a suit “shall be dismissed” if the required affirmation is not filed has real bite.

The dissent highlights a live jurisprudential tension: a line of prior cases had applied the version of R.C. 149.43 in effect on the date of the request. Whether that line survives in light of the Court’s present disposition remains to be seen; future cases may clarify or formally reconcile the competing approaches. For now, litigants should treat the new prerequisites as immediately controlling at the time of filing and should scrupulously comply to avoid dismissal.

Beyond procedural rigor, the decision underscores two broader themes: a legislative rebalancing that offers public offices a short cure window before litigation, and an increased burden on requesters—especially the incarcerated—to navigate new pre-suit steps. In the broader legal landscape, the case reaffirms Ohio’s longstanding doctrine that procedural amendments generally govern proceedings after their effective date, anchoring public-records litigation to the process in force at the moment of filing.