[Cite as Women's Med Dayton v. Vanderhoff, 2026-Ohio-3256.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
WOMEN’S MEDICAL GROUP : APPEAL NO. C-250549 PROFESSIONAL CORPORATION, TRIAL NO. A-2200704 d.b.a. WOMEN’S MED DAYTON, :
and :
JUDGMENT ENTRY
PLANNED PARENTHOOD :
SOUTHWEST OHIO REGION,
:
Plaintiffs-Appellees,
:
vs.
:
BRUCE VANDERHOFF,
Director, ODH, :
and :
OHIO DEPARTMENT OF HEALTH, :
Defendants-Appellants. :
This cause was heard upon the appeal, the record, and the briefs.
For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed as modified.
Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24.
The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk:
Enter upon the journal of the court on 8/21/2026.
OHIO FIRST DISTRICT COURT OF APPEALS
Pursuant to App.R. 30, the clerk is directed to send all parties, or their counsel if represented, a copy of the court’s judgment and note such action on the docket.
By:_______________________
Administrative Judge
[Cite as Women's Med Dayton v. Vanderhoff, 2026-Ohio-3256.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
WOMEN’S MEDICAL GROUP : APPEAL NO. C-250549 PROFESSIONAL CORPORATION, TRIAL NO. A-2200704 d.b.a. WOMEN’S MED DAYTON, :
and :
OPINION
PLANNED PARENTHOOD :
SOUTHWEST OHIO REGION,
:
Plaintiffs-Appellees,
:
vs.
:
BRUCE VANDERHOFF,
Director, ODH, :
and :
OHIO DEPARTMENT OF HEALTH, :
Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: August 21, 2026
ACLU of Ohio, B. Jessie Hill, Freda J. Levenson, Rebecca Kendis, Maggie Scotece, and Amy Gilbert; American Civil Liberties Union Foundation and Rachel Reeves; and The Cochran Firm and Fanon A. Rucker, for Plaintiff-Appellee Women’s Medical Group Professional Corporation,
Planned Parenthood Federation of America, Kyla Eastling, Emily Nestler and Melissa Shube, and The Cochran Firm and Fanon A. Rucker, for Plaintiff-Appellee Planned Parenthood Southwest Ohio Region,
OHIO FIRST DISTRICT COURT OF APPEALS
Dave Yost, Attorney General of Ohio, and Amanda L. Narog, Assistant Attorney General, for Defendants-Appellants.
[Cite as Women's Med Dayton v. Vanderhoff, 2026-Ohio-3256.]
CROUSE, Presiding Judge.
{¶1} Ohio statutes vest Ohio’s director of health (“the director”) with broad
discretion to enforce or dispense with licensure requirements for “ambulatory surgical
facilities.” Plaintiffs sued to enjoin the Ohio Department of Health (“ODH”) and the
director (collectively, “the State”) from using that discretion to unconstitutionally
discriminate against ambulatory surgical facilities that, like plaintiffs, provide
abortions. During discovery, ODH representatives testified in depositions that the
director had sole discretion to grant or deny variances, and that only the director could
say why any particular variance request was approved. So plaintiffs sought to depose
the director, and the trial court agreed.
{¶2} The State now appeals the order compelling the director’s deposition.
For the reasons set forth below, we conclude that contrary to plaintiffs’ contentions,
we have jurisdiction to hear the State’s appeal, and contrary to the State’s assertions,
the trial court had subject-matter jurisdiction to hear the plaintiffs’ claims for
prospective, injunctive relief. We further hold that this is the exceptional case in which
deposing a high-ranking State official is warranted. We therefore affirm the trial
court’s order compelling the deposition, with certain limits.
I. BACKGROUND
A. Statutory Backdrop
{¶3} To explain the backdrop of this case, we must begin by explaining the
statutory scheme at issue.
{¶4} Ohio law regulates “ambulatory surgical facilities,” which are those
facilities “in which surgical services are provided to patients who do not require
hospitalization for inpatient care.” R.C. 3702.30(A)(1). Included in this definition are
facilities that provide procedural abortions on an outpatient basis, like the facilities
OHIO FIRST DISTRICT COURT OF APPEALS
operated by plaintiffs-appellees Women’s Medical Group Professional Corporation
(“Women’s Med”) and Planned Parenthood Southwest Ohio Region (“Planned
Parenthood”) (collectively, “plaintiffs”).
{¶5} Ambulatory surgical facilities must obtain a license from ODH. R.C.
3702.30(E)(1). To do so, they must generally have a “written transfer agreement” with
a hospital within 30 miles. R.C. 3702.303(A) and 3702.3010. If they cannot obtain a
written transfer agreement, the facility can apply to the director for a variance. R.C.
3702.303(C)(2). The director’s variance decisions are discretionary and “final.”
R.C. 3702.304(A)(1) and (C). To qualify for a variance, the statute states that a facility
must show, inter alia, that it has agreements with at least one “consulting physician”
who holds admitting privileges at a local hospital. R.C. 3702.304(B)(2) and (3). If a
facility applies for a variance and the director denies it, the facility’s license “is
automatically suspended.” R.C. 3702.309(A).
{¶6} Public hospitals (including hospitals at state universities and medical
colleges) are prohibited from entering into written transfer agreements with any
ambulatory surgical facilities that perform “nontherapeutic abortions.” R.C.
3727.60(B)(1). Public hospitals are further prohibited from authorizing those on their
staff to serve as “consulting physicians” for any ambulatory surgical facilities that
provide “nontherapeutic abortions.” R.C. 3727.60(B)(2). The General Assembly
further tightened these restrictions in 2022 by prohibiting any “consulting physician”
named in a variance application from teaching at or receiving compensation from a
state medical school, state hospital, or any “other public institution.” See 2021 Sub.S.B.
No. 157, at 5-6 (“S.B. 157”), enacting R.C. 3702.305.
B. Plaintiffs’ Factual Allegations
{¶7} According to the allegations in the complaint, Planned Parenthood was
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OHIO FIRST DISTRICT COURT OF APPEALS
denied a variance in 2015, when ODH began to require applicants to list four
consulting physicians in their application, and Planned Parenthood had listed only
three. Planned Parenthood submitted a new variance application listing four doctors,
and was approved.
{¶8} Around the same time, Women’s Med was denied a variance for similar
reasons and sought judicial review. Ultimately, Women’s Med lost because the trial
court and the Second District concluded (1) that the director’s variance decision was
not judicially reviewable and (2) that the lack of a variance was a sufficient ground on
which to deny an ambulatory-surgical-facility license. Women’s Med Ctr. of Dayton v.
Dept. of Health, 2019-Ohio-1146 (2d Dist.) (“Women’s Med I”).
{¶9} Women’s Med then submitted a new variance application with four
backup doctors, as well as a new license application. Sixty days after filing the variance
application, Women’s Med was approved for a new license (although that license
would not be issued for another week, and Women’s Med would not be notified about
it for another two).
{¶10} Planned Parenthood was granted another variance in August 2021,
which came with a letter stating that, moving forward, all four consulting physicians
would need to be credentialed as obstetricians/gynecologists (“OB-GYNs”), and would
need both admitting privileges at a nearby hospital and full, active-staff voting
privileges at that hospital. At around this same time, Women’s Med was denied a
variance, on the ground that one of its consulting physicians was not an OB-GYN and
that another lacked “staff voting privileges.” At least one of these physicians had been
listed on Women’s Med’s approved 2019 variance request. The State then proposed to
revoke Women’s Med’s license.
{¶11} In November 2021, Women’s Med submitted a new application that
7
OHIO FIRST DISTRICT COURT OF APPEALS
listed four consulting OB-GYNs with staff voting privileges.
{¶12} In December, the General Assembly passed S.B. 157. The new statute,
which included R.C. 3702.305, would not take effect until March 2022 and even then
included a 90-day grace period for providers to come into compliance. See S.B. 157,
Section 3, at 19.
{¶13} On January 28, 2022, the State denied Women’s Med’s November 2021
application, explaining that Women’s Med’s consulting physicians had ties to a state
medical school, in violation of the “clear public policy directives” of the not-yeteffective S.B. 157. Three days later, the director proposed to deny and revoke Women’s
Med’s license.
C. Proceedings Below
{¶14} In February 2022, Women’s Med and Planned Parenthood instituted
this action, naming as defendants ODH and Bruce Vanderhoff, M.D., in his official
capacity as director of health. The operative complaint at the time of this appeal
requested (1) a permanent injunction prohibiting the State from enforcing certain
challenged provisions1 of Ohio law as facially unconstitutional under Ohio’s
Reproductive Freedom Amendment and Due Course of Law Clause, Ohio Const., art.
I, § 22 and 16; (2) a permanent injunction against the “arbitrary enforcement” of the
challenged provisions, on the ground that such enforcement violated the same
constitutional guarantees; (3) a permanent injunction prohibiting enforcement of the
automatic-suspension provisions in R.C. 3702.309, on the ground that they deprived
plaintiffs of property interests without providing due process of law; and (4) a
declaration that the challenged provisions were unconstitutional. Women’s Med also
1 The “challenged provisions” included R.C. 3702.303, 3702.304, 3727.60, 3702.309, and 3702.305, as well as Adm.Code 3701-83-19(E).
8
OHIO FIRST DISTRICT COURT OF APPEALS
sought and received a preliminary injunction.
{¶15} In January 2025, plaintiffs noticed a Civ.R. 30(B)(5) deposition of ODH.
The notice indicated that plaintiffs intended to ask about variance applications filed
by ambulatory surgical facilities since 2017, ODH’s decisions regarding those
applications, and the reason for any denials.2 Plaintiffs further indicated their intent
to ask about the rationales behind any changes in the requirements regarding
consulting physicians, including their qualifications and the number needed.3
{¶16} ODH designated its medical director, Mary DiOrio, M.D., as its
corporate representative. Dr. DiOrio testified that, prior to her deposition, she had
spoken with several individuals at ODH, including the director. She proved unable to
give many details about the ambulatory-surgical-facility licensing process, however,
as she had never seen or reviewed a written-transfer-agreement application before.
She testified that variance determinations were “entirely within [the director’s]
discretion,” and that she was “not aware of a policy” governing or guiding the exercise
of that discretion. She testified that James Hodge would know more.
2 The relevant portion of the notice read as follows:
4. All ASF variance applications and decisions since 2017, including
variances from the WTA requirement, as well as variances from any other ASF
requirement:
d. Your decisions whether to grant any variances of an ASF
requirement, including but not limited to, the WTA requirement,
since 2017.
e. The reasons for denying any variance applications from any ASF
requirement since 2017.
3 This portion of the notice listed the following topics:
1. The minimum number of Backup Physicians with admitting privileges
that are necessary in order for an ASF to obtain a variance of the WTA
Requirement, and knowledge of whether and how such requirement advances
patient health in accordance with widely accepted and evidence-based standards
of care, since 2015.
a. All changes in the minimum number of Backup Physicians
required, and reason(s) for each minimum number and change.
b. All changes in the minimum credentials or qualifications for
eligible backup physicians required, and reason(s) for each
required credential or qualification.
9
OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Because Dr. DiOrio proved unable to address a number of topics listed
in plaintiffs’ notice, the State agreed to make James Hodge, ODH’s chief of healthcare
deployments, available for deposition under the same Civ.R. 30(B)(5) notice and to
permit his deposition after the close of discovery.
{¶18} Plaintiffs then served new notices of deposition for both Hodge and the
director as Civ.R. 30(B)(5) designees, and for Hodge in his individual capacity. The
State responded that it was willing to hold the deposition open and schedule a
deposition of Hodge as designee, but protested the remainder of the notices.
{¶19} During Hodge’s deposition, which took place the next month, Hodge
testified that he could not speak to the rationales behind the director’s variance
determinations, because such decisions were vested within the director’s discretion.
As a result, plaintiffs informed the State of their intent to compel the director’s
deposition as a fact witness or, in the alternative, as a Civ.R. 30(B)(5) designee.
Plaintiffs served a new notice of deposition for the director and moved to compel his
testimony. Because the discovery deadlines had long since passed and the dispositivemotions deadline was fast approaching, plaintiffs also filed a motion to extend the
timeline in the scheduling order.
{¶20} On September 17, 2025, the trial court entered an order granting
plaintiffs’ motion to compel and ordering the director “to fully cooperate and
participate in his deposition as a party and fact witness.” In its order, the trial court
noted that the State had “not object[ed] to Plaintiffs’ examination topics,” that the
director was “a party to this case” and thus subject to Civ.R. 30(A), and that the State’s
prior representatives had been “unable to answer some of Plaintiffs’ questions during
their depositions and stated that Defendant Vanderhoff would be the proper person to
answer those questions.” The trial court also granted plaintiffs’ motion to extend the
10
OHIO FIRST DISTRICT COURT OF APPEALS
case timeline and rejected the State’s argument that plaintiffs’ notice was untimely.
{¶21} The State now appeals the trial court’s September 17 order.
II. APPELLATE JURISDICTION
{¶22} Before turning to the merits of the State’s appeal, we address plaintiffs’
arguments that we lack jurisdiction.4
{¶23} Ohio’s courts of appeals have jurisdiction “to review, affirm, modify, set
aside, or reverse judgments or final orders” of lower courts. R.C. 2501.02(C); see also
Ohio Const., art. IV, § 3(B)(2). Generally, discovery orders are not “final orders,” and
a party must wait to challenge them until they merge into a subsequent judgment. See
Klein v. Bendix-Westinghouse Automotive Air Brake Co., 13 Ohio St.2d 85, 86 (1968).
{¶24} But some discovery orders concern “provisional remedies,” and
therefore can be final. By statute, a “provisional remedy” is “a proceeding ancillary to
an action, including, but not limited to, a proceeding for a preliminary injunction,
attachment, discovery of privileged matter, [or] suppression of evidence.” (Emphasis
added.) R.C. 2505.02(A)(3). An order that grants or denies such a “provisional
remedy” becomes a “final order” subject to appeal when (a) the order “in effect
determines the action with respect to the provisional remedy and prevents a judgment
in the action in favor of the appealing party with respect to the provisional remedy,”
and (b) the “appealing party would not be afforded a meaningful or effective remedy
by an appeal following final judgment as to all proceedings, issues, claims, and parties
in the action.” R.C. 2505.02(B)(4).
{¶25} The heart of this jurisdictional dispute turns on whether the trial court’s
4 Shortly after the State filed its appeal, this court ordered the parties to show cause why it should
not be dismissed for lack of jurisdiction. Ultimately, we issued an entry provisionally finding that we had jurisdiction, but making clear that the parties remained “free to raise the issue of jurisdiction in their briefs.” Plaintiffs took us up on this invitation.
11
OHIO FIRST DISTRICT COURT OF APPEALS
order compelling the director’s deposition denied a provisional remedy. The director
claimed that he was shielded from testifying, and that this protection was akin to an
evidentiary privilege.
{¶26} The Ohio Supreme Court has held that “only under extraordinary
circumstances, when certain factors have been satisfied, may a high-ranking
government official be deposed.” (Cleaned up.) State ex rel. Ctr. for Media &
Democracy v. Yost, 2024-Ohio-2786, ¶ 26 (“CMD I”). This rule arises neither from
statute nor from the common law, but from public-policy concerns and separation-ofpowers principles. Id. at ¶ 27 and fn. 1. While the protection is “not a statutory or
common-law privilege,” the Ohio Supreme Court has said it “‘is akin to a privilege.’”
Id., quoting State ex rel. Thomas v. McGinty, 2020-Ohio-5452, ¶ 45. Thus, an order
compelling a high-ranking official to testify over objection effectively “denies a
provisional remedy” within the meaning of R.C. 2505.02(B)(4). See id. at ¶ 21.
{¶27} But the director cannot simply allege a protection and gain an automatic
appeal. Rather, he must demonstrate he has “a colorable claim that the order directs
him to disclose information that might be protected.” (Emphasis added.) See id. at
¶ 24, citing State v. Glenn, 2021-Ohio-3369, ¶ 13; see also Byrd v. U.S. Xpress, Inc.,
2014-Ohio-5733, ¶ 12 (1st Dist.).
{¶28} An executive official’s quasi-privilege claim is governed by the fourfactor test set forth in State ex rel. Summit Cty. Republican Party Executive Commt.
v. Brunner, 2008-Ohio-1035. Plaintiffs thus argue that, to appeal, the State must make
a colorable showing as to each of the four Brunner factors. The Ohio Supreme Court’s
opinion in CMD I, however, implicitly rejects this argument. In CMD I, the Attorney
General appealed a lower court’s rejection of a protection-akin-to-privilege argument.
To determine whether it had jurisdiction to hear his appeal under R.C. 2505.02(B)(4),
12
OHIO FIRST DISTRICT COURT OF APPEALS
the Ohio Supreme Court asked simply whether the Attorney General qualified as a
high-ranking government official, and whether the deposition would “‘unjustly
interfere’” with his duties. See CMD I at ¶ 25. The Court did not go through all four
factors at the jurisdictional stage—it saved that for its subsequent merits ruling.
Compare id. at ¶ 25-27, with State ex rel. Ctr. for Media & Democracy v. Yost, Slip
Opinion No. 2026-Ohio-1899, ¶ 53-57 (“CMD II”).
{¶29} Consistent with CMD I, we hold that an individual has raised a
“colorable claim” of protection akin to privilege if the record shows that (1) the
individual asserting the privilege qualified as a “high-ranking government official,” (2)
the discovery ordered pertained to their official role, and (3) compliance with the order
would plausibly impose a burden on their ability to discharge the duties of their office.
{¶30} We conclude that the director’s protection-akin-to-privilege claim
satisfies all three criteria. First, the parties appear to agree that the director is a “highranking government official,” by virtue of his statutory role as “chief executive officer
of the department of health,” tasked with “administer[ing] the laws relating to health
and sanitation and the rules of the department of health.” See R.C. 3701.03(A). We
accept their agreement for purposes of this case.5
{¶31} Second, the trial court ordered the director to testify in a deposition
regarding issues pertaining to official licensure and variance decisions.
{¶32} Third, compelling the director to sit for a deposition would impose a
5 We note that the Ohio Supreme Court has only ever applied Brunner to two officers, both of whom
were elected by the Ohio voters to fixed terms in offices created by the Ohio Constitution. See Ohio Const., art. III, § 1 and 2; Brunner, 2008-Ohio-1035, at ¶ 3 (secretary of state); CMD I, 2024-Ohio2786, at ¶ 4-5 (attorney general); CMD II, 2026-Ohio-1899, at ¶ 50-51 (same). Because such officers are political and constitutional in character, rather than merely administrative, deposing them arguably posed unique separation-of-powers concerns. But no party to this case argues that Brunner should not be extended to unelected heads of administrative departments, who occupy positions created by statute and are removable at the governor’s “pleasure.” See R.C. 121.03. We therefore leave that determination for another day.
13
OHIO FIRST DISTRICT COURT OF APPEALS
burden on his ability to discharge his office, as an oral deposition will occupy the
director personally for a period of time. And while the burden imposed by this
deposition may or may not justify shielding him from testifying, it suffices to state a
“colorable claim” of protection akin to privilege for the purpose of determining our
jurisdiction.
{¶33} The trial court’s order was thus an order denying a provisional remedy
within the meaning of R.C. 2505.02(A)(3) and (B)(4). Further, it easily satisfies R.C.
2505.02(B)(4)’s remaining two prongs. “Any order compelling the production of
privileged or protected materials certainly determines the action under R.C.
2505.02(B)(4)(a) because it would be impossible to later obtain a judgment denying
the motion to compel disclosure if the party has already disclosed the materials.”
(Cleaned up.) CMD I, 2024-Ohio-2786, at ¶ 28. And this order satisfies R.C.
2505.02(B)(4)(b) because the putative interference with the director’s discharge of his
statutory responsibilities cannot “be repaired after the discovery has taken place.” See
id. at ¶ 29.
{¶34} We therefore hold that the trial court’s order was a “final order” under
R.C. 2505.02(B)(4), from which the State could appeal.
III. MOTION TO COMPEL
{¶35} We next turn to the merits of plaintiffs’ motion to compel and the
director’s claim of quasi-privilege. This inquiry proceeds in two steps. First, the court
must consider what legitimate need the litigant has for the official’s testimony. CMD
II, 2026-Ohio-1899, at ¶ 52. Second, it must weigh the litigant’s need for the official’s
testimony against the four factors set forth in Brunner. See id. at ¶ 51, 53-57; Brunner,
2008-Ohio-1035, at ¶ 4. Deposition should be compelled only if the second step
reveals “‘extraordinary circumstances’” that render such discovery proportional to the
14
OHIO FIRST DISTRICT COURT OF APPEALS
litigant’s needs. CMD II at ¶ 51, quoting Brunner at ¶ 3; see also Civ.R. 26(B)(1).
{¶36} In general, we review discovery rulings for an abuse of discretion. See
Queen City Cleaning, L.L.C. v. I74 Wired, L.L.C., 2024-Ohio-1761, ¶ 14 (1st Dist.);
State ex rel. The V Cos. v. Marshall, 1998-Ohio-329, ¶ 11. But whether a particular
privilege (or quasi-privilege) applies “is a question of law.” Med. Mut. of Ohio v.
Schlotterer, 2009-Ohio-2496, ¶ 13. A trial court enjoys no discretion to commit errors
of law, Johnson v. Abdullah, 2021-Ohio-3304, ¶ 38-39, so we review privilege (and
quasi-privilege) determinations de novo. See Schlotterer at ¶ 13.
{¶37} Plaintiffs’ operative complaint includes both facial challenges to various
statutory provisions and challenges to the manner in which those statutes are applied.
Because the parties’ arguments (and our analysis) differ with respect to the two types
of challenges, we address them separately.
A. Plaintiffs’ Facial Challenges
{¶38} The State contends that the director’s testimony is irrelevant to
plaintiffs’ claims that the challenged statutes are unconstitutional on their face.
Plaintiffs disagree, arguing that the director is “the one individual who can speak to
the health and safety justification, if any, of the challenged provisions.” These
justifications, plaintiffs contend, will be central to determining whether the challenged
provisions survive scrutiny under the Reproductive Freedom Amendment.
{¶39} Under the Reproductive Freedom Amendment, Ohioans have “a right
to make and carry out [their] own reproductive decisions, including . . . decisions on
. . . abortion.” Ohio Const., art. I, § 22(A). Regulations that “burden, penalize, . . . or
discriminate against” those who assist “individual[s] exercising this right” are
constitutional under the amendment only if they represent “the least restrictive means
to advance the individual’s health in accordance with widely accepted and evidence15
OHIO FIRST DISTRICT COURT OF APPEALS
based standards of care.” Id., § 22(B).
{¶40} While the State’s interests in passing the challenged provisions are
therefore relevant to plaintiffs’ facial challenge, the director has no special knowledge
on that question. The director had no power to enact or sign into law the statutes
concerning ambulatory surgical facilities, written transfer agreements, or variances.
The General Assembly passed these laws, including the limitations imposed under S.B.
157. The director therefore had no “first-hand knowledge” of the State’s interest in
enacting these statutes. Compare Brunner, 2008-Ohio-1035, at ¶ 4, 6. And to the
extent plaintiffs challenge the director’s application of criteria beyond those in the
statutes, they raise an as-applied challenge to the manner in which the director has
and continues to enforce the law, not a facial challenge to the law itself.
{¶41} We therefore hold that plaintiffs failed to show that the director’s
testimony is necessary to their facial challenges.
B. Plaintiffs’ As-Applied Challenges
{¶42} The remainder of the State’s arguments concern whether the trial court
properly ordered the director to testify in support of plaintiffs’ as-applied challenges.
The State’s frontline position is that the trial court lacked subject-matter jurisdiction
over these claims, so that those claims cannot provide a basis for compelling the
director’s deposition. We begin by discussing (1) the trial court’s jurisdiction to hear
plaintiffs’ as-applied challenges, before turning to (2) plaintiffs’ need for that
testimony and (3) the proportionality of the burden it would impose under the
Brunner factors.
1. Trial Court’s Subject-Matter Jurisdiction
{¶43} Primarily, the State contends that the trial court lacked subject-matter
jurisdiction over plaintiffs’ as-applied claims. “Because subject-matter jurisdiction is
16
OHIO FIRST DISTRICT COURT OF APPEALS
a condition precedent to a court’s power to adjudicate and render judgment in a case,
if a court acts without jurisdiction, then any proclamation by that court is void.”
(Cleaned up.) Ostanek v. Ostanek, 2021-Ohio-2319, ¶ 22. Specifically, the State argues
that the trial court lacked jurisdiction because (a) plaintiffs’ as-applied challenges were
impermissible, de-facto appeals from administrative proceedings, (b) plaintiffs’ only
remedy was in mandamus, and (c) the decisions of ODH and the director were
supported by sufficient evidence.
a. De-Facto Appeal/Collateral Attack
{¶44} We begin with the State’s argument that the trial court lacked
jurisdiction to hear plaintiffs’ claims because they constituted de-facto appeals of the
director’s denials of plaintiffs’ variance applications.
{¶45} The State’s argument starts from the premise that, under R.C.
3702.304, “the Director’s decision to grant or deny a variance is discretionary and not
subject to administrative or judicial review.” At least one court has agreed with this
proposition. In Women’s Med I, 2019-Ohio-1146, at ¶ 54-55 (2d Dist.), the Second
District held that, while a court of common pleas has jurisdiction to hear an appeal
from a denial of licensure under R.C. 119.12, a denial of a variance is “not a judicially
reviewable determination.” Thus, because the director’s denial of Women’s Med’s
variance application was not an “adjudication” under R.C. 119.01(D) and 119.12, the
court of common pleas lacked jurisdiction to review it. Id. at ¶ 55.
{¶46} The State argues that Women’s Med I dooms plaintiffs’ claims in this
case. As the State sees things, plaintiffs’ as-applied challenges are nothing more than
collateral attacks on, or de-facto appeals of, the director’s decision denying Women’s
Med’s variance applications and revoking their licenses. In support of its contention,
the State points to the host of allegations in plaintiffs’ complaint describing their
17
OHIO FIRST DISTRICT COURT OF APPEALS
attempts to obtain prior variances and the director’s corresponding denials. The State
argues that, because the trial court lacked authority to invalidate those variance
denials, it lacked jurisdiction over plaintiffs’ as-applied claims.
{¶47} But even if we accept the reasoning in Women’s Med I, it would not
foreclose plaintiffs’ claims here. Unlike the complaint in Women’s Med I, plaintiffs’
suit was not an administrative appeal and did not ask the trial court to “reverse, vacate,
or modify” any prior administrative decision. See R.C. 119.12(N) and 2506.04.
{¶48} Instead, plaintiffs’ as-applied challenges sought prospective relief to
restrain the director and ODH from enforcing the challenged provisions in an allegedly
arbitrary manner. Ohio courts have long recognized that, “where a party is threatened
by some official enforcement of an unconstitutional statute, the party may ask a court
of equity to protect their rights by ordering particular ‘public officers . . . be restrained
from all action under’ the unconstitutional provision.” (Alteration in original.)
Preterm-Cleveland v. Yost, 2026-Ohio-23, ¶ 20 (1st Dist.), quoting Peck v. Weddell,
17 Ohio St. 271, 285 (1867). The same is true for an individual threatened with
allegedly unconstitutional enforcement of a statute that is constitutional on its face.
Compare Wymsylo v. Bartec, Inc., 2012-Ohio-2187, ¶ 35. The courts of common pleas
are generally open to hear such claims.
{¶49} Plaintiffs’ reliance on the director’s prior enforcement decisions does
not transform their equitable claims into de-facto appeals. Again, the key is in the
relief. If plaintiffs sought an order barring the enforcement of the director’s prior
adverse decisions, then their new action would constitute a collateral attack on the
director’s administrative determinations. But the injunction plaintiffs seek in their
complaint would leave in place the director’s prior revocation orders and would not
mandate that plaintiffs be given licenses to operate an ambulatory surgical facility. The
18
OHIO FIRST DISTRICT COURT OF APPEALS
order they seek would simply require that any future applications plaintiffs may
submit be considered in a manner consistent with the Constitution.
{¶50} The Ohio Supreme Court has drawn this same line between collateral
attacks and prospective injunctions. In Wymsylo, the plaintiffs sought both (1) a
declaration that their ten prior adjudications for violating the Smoke Free Act were
unconstitutional, and (2) a declaration and injunction to prevent future
unconstitutional enforcement of the act. Wymsylo at ¶ 3. The Ohio Supreme Court
held that the plaintiffs’ “attempt to invalidate the ten violations through a declaratory
judgment action” was prohibited as “an improper collateral attack.” Id. at ¶ 34. But it
held that the same bar did not extend to their “declaratory judgment/injunction action
. . . to prevent future enforcement of the Smoke Free Act.” Id. at ¶ 35. There, as here,
prospective relief for the plaintiffs would have implied that the prior adjudications had
been erroneous. Nevertheless, to the extent that relief applied only to future
enforcement, and left the prior rulings in place, the Court held the plaintiffs’ claims
were not barred. See also, e.g., Olivier v. Brandon, 607 U.S. 552 (2026) (plaintiff could
seek to enjoin future enforcement of an allegedly unconstitutional ordinance, even
though his prior conviction for violating said ordinance was never set aside).
{¶51} Plaintiffs’ as-applied claims are therefore not de-facto appeals of, or
collateral attacks on, the director’s prior variance denials. So, even assuming the court
of common pleas lacked subject-matter-jurisdiction to invalidate the director’s prior
variance denials, that court would still have jurisdiction to hear plaintiffs’ claim for
prospective injunctive relief to prevent future, allegedly unconstitutional enforcement.
b. Mandamus as Exclusive Remedy
{¶52} The State’s argument that plaintiffs’ sole remedy is in mandamus fails
for similar reasons. It is well settled that “when an agency’s decision is discretionary
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OHIO FIRST DISTRICT COURT OF APPEALS
and, by statute, not subject to direct appeal, a writ of mandamus is the sole vehicle to
challenge the decision, by attempting to show that the agency abused its discretion.”
(Emphasis added.) Ohio Academy of Nursing Homes v. Ohio Dept. of Job & Family
Servs., 2007-Ohio-2620, ¶ 23. But the availability of mandamus to challenge the
director’s prior decisions has no bearing on the trial court’s ability to enjoin the
director from taking unconstitutional actions in the future. As we have explained,
plaintiffs’ claims in this case are prospective and do not seek to challenge the validity
or enforceability of the director’s prior decisions.
c. Sufficiency of Evidence/Constitutional Avoidance
{¶53} Finally, the State argues that because plaintiffs’ licensure applications
failed to satisfy R.C. 3702.30 and 3702.303, the trial court lacked jurisdiction to hear
their constitutional claims. It bases this argument on Capital Care Network of Toledo
v. Ohio Dept. of Health, 2018-Ohio-440, ¶ 30-31, and Women’s Med I, 2019-Ohio1146, at ¶ 56 (2d Dist.), which held that, where a denial of licensure accorded with law
and was supported by reliable, probative, and substantial evidence, the court need not
address constitutional arguments.
{¶54} This argument misses the mark for at least two reasons. First, it
concerns not jurisdiction but the merits of how the trial court should resolve plaintiffs’
claims. Constitutional avoidance would kick in only once the trial court determined
there was a nonconstitutional basis for denying plaintiffs’ claims on their merits. The
merits of plaintiffs’ claims are not before us on this appeal—only the trial court’s
discovery ruling is. Indeed, the trial court previously denied the State’s motion to
dismiss for failure to state a claim. That order was not (and could not be) appealed.
{¶55} Second, the reasoning in both Capital Care and Women’s Med I
concerned administrative appeals, not actions that seek prospective injunctive and
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OHIO FIRST DISTRICT COURT OF APPEALS
declaratory relief. Here, plaintiffs did not seek to invalidate their prior licensure
revocations, so the legal sufficiency of the evidence supporting those revocations was
not properly before the trial court.
d. Trial Court’s Jurisdiction
{¶56} In sum, we hold that the court of common pleas had subject-matter
jurisdiction to hear and rule upon plaintiffs’ prospective challenge to the manner in
which the State enforces the disputed statutes. Just as in Wymsylo, plaintiffs’ asapplied, prospective challenge was within the traditional, equitable jurisdiction of the
court of common pleas, and the State has cited no statute removing such jurisdiction.
See Ohio High School Athletic Assn. v. Ruehlman, 2019-Ohio-2845, ¶ 9 (courts of
common pleas have presumptive subject-matter jurisdiction “unless some statute
takes that jurisdiction away”).
2. Need for the Director’s Testimony
{¶57} Having concluded that the trial court had jurisdiction to enter the
motion to compel the director to testify, we next turn to the merits of that motion. We
begin by asking what legitimate need plaintiffs had for the director’s deposition
testimony. See CMD II, 2026-Ohio-1899, at ¶ 52.
{¶58} Plaintiffs have shown that their need to depose the director is great.
Plaintiffs’ as-applied challenges allege that the director has previously applied
arbitrary and unconstitutional standards in determining whether to grant or deny
variances. Because the merits of those claims are not before us, we assume they would,
if proved, entitle plaintiffs to the relief they seek. To prove their as-applied
constitutional claims, however, plaintiffs will need to know how variance applications
were resolved, what standards were applied, and why those standards were chosen.
{¶59} The deposition witnesses offered by the State made clear that no one but
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OHIO FIRST DISTRICT COURT OF APPEALS
the director can give plaintiffs these answers. Plaintiffs asked both ODH’s medical
director (Dr. DiOrio) and its chief of healthcare deployments (James Hodge) about
how variance determinations were made. Both said that only the director could answer
such questions. Further, those deponents made clear that the director employed an
all-encompassing discretion in evaluating such claims and did not bind himself to any
preestablished standards. Indeed, the State has argued in this court that the statutes
themselves vest the director personally, and not ODH, with the sole discretion to
decide whether applicants will receive a variance. See R.C. 3702.304(A)(1) (“The
director of health may grant a variance . . . if the ambulatory surgical facility submits
to the director a complete variance application, prescribed by the director, and the
director determines after reviewing the application that the facility is capable of
achieving the purpose of a written transfer agreement . . . .” (Emphasis added.)).
{¶60} Put simply, plaintiffs’ as-applied claims turn on information that,
according to the State’s own Civ.R. 30(B)(5) designees, existed only in the mind of the
director. We can think of no more clear-cut need for deposition testimony.
3. Proportionality/Brunner Factors
{¶61} But need alone is not enough to justify deposing a high-ranking
government official. That need must be weighed against the four Brunner factors: “(1)
the substantiality of the case in which the deposition is requested, (2) the degree to
which the witness has first-hand knowledge or direct involvement, (3) the probable
length of the deposition and the effect on government business if the official must
attend the deposition, and (4) whether less onerous discovery procedures can provide
the information sought.” CMD II, 2026-Ohio-1899, at ¶ 51, citing Brunner, 2008-Ohio-1035, at ¶ 4.
{¶62} First, this case is substantial. Plaintiffs allege that the director hides
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OHIO FIRST DISTRICT COURT OF APPEALS
behind his statutory discretion to apply arbitrary or unnecessarily restrictive criteria
to deny variances, in violation of the Ohio Constitution. It thus represents a far
weightier and more substantial public issue than the public-records question at issue
in CMD II. See CMD II at ¶ 53. The first factor cuts in favor of plaintiffs.
{¶63} Second, the State also does not dispute that the director has firsthand
knowledge of and had direct involvement in the matter at hand. Indeed, we need not
assume the director’s knowledge. Compare CMD II at ¶ 54. The sworn testimony of
the State’s two Civ.R. 30(B)(5) designees and the State’s appellate brief confirm it.6 All
agree that the director is the sole individual possessed of firsthand knowledge of the
standards for denying variance applications. The second factor, too, suggests that the
director’s deposition is appropriate.
{¶64} Third, the burden the deposition would impose would be limited, so that
the third Brunner factor does not cut against plaintiffs. Here, as in Brunner, “there is
no reason to believe that a deposition need take an inordinate amount of time.” See
Brunner, 2008-Ohio-1035, at ¶ 7. The “issues are limited” to the questions plaintiffs
have already identified, which concern a small set of prior decisions and the standards
used to evaluate these and future applications. Further, plaintiffs’ notice indicated an
intent to depose the director remotely, eliminating the inconvenience of travel. And
the State has never suggested, either here or below, that some more limited deposition
procedure would be acceptable. Its argument was all or nothing.
{¶65} The State also argues that “any order compelling the Director’s
deposition” would be unduly burdensome because it would “risk establishing a
6 In its brief, for example, the State explained, “As both designated deponents’ testimony confirms,
ODH does not have any knowledge regarding variance requirements or decisions. The Director alone can evaluate and decide whether to grant a variance from the written transfer agreement requirement.”
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OHIO FIRST DISTRICT COURT OF APPEALS
precedent that would make such depositions routine in litigation involving ODH.” But
this mischaracterizes the situation. This is not a case like CMD II, which concerned a
relatively run-of-the-mill dispute about whether particular public records exist. See
CMD II, 2026-Ohio-1899, at ¶ 56. This case involves a highly unusual constellation of
circumstances, in which (1) the State asserts that the director has sole
enforcement/decision-making authority by statute, (2) multiple Civ.R. 30(B)(5)
designees testified that no one except the director knows why or how the director
exercises that authority, (3) plaintiffs allege that the director is exercising that
authority unconstitutionally, and (4) the director has not provided substantive
responses to relevant interrogatories or requests for admissions. Deposition is
necessary here only because all four of these facts are true; variation with respect to
any one would justify distinguishing a future request. Our narrow ruling thus does not
“open the door to more such depositions in [many similar] cases,” because few, if any,
future cases will fit this mold. See CMD II at ¶ 56. And, to the extent the State fears
that trial courts will overread and extend our decision, it can take solace in its right to
take an interlocutory appeal to correct such rogue deposition orders. Thus, the third
factor does not cut in favor of denying plaintiffs’ request to depose the director.
{¶66} Fourth, the State has abandoned any argument that “‘less onerous
discovery procedures [could] provide the information sought.’” See Brunner, 2008-Ohio-1035, at ¶ 4, quoting Monti v. State, 151 Vt. 609, 613 (1989). Nor does the record
suggest any reason to believe less-onerous procedures were feasible. The State’s Civ.R.
30(B)(5) designees testified that only the director had the information plaintiffs
sought. And plaintiffs received no substantive responses to their interrogatories asking
about “the facts supporting” the alleged extra-statutory requirements for obtaining a
variance. Thus, the fourth Brunner factor cuts in favor of deposition.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶67} We therefore hold that none of the four Brunner factors suggest that the
State’s interest in restricting access to high-ranking officials outweighed plaintiffs’
need for the director’s testimony.
IV. CONCLUSION
{¶68} Simply put: because of the discretionary character of the statutory
variance scheme and the opaque manner in which the director has elected to exercise
that discretion, plaintiffs need to depose the director to proceed with their
constitutional claims. The trial court had subject-matter jurisdiction over plaintiffs’
claims, and an application of the Brunner factors suggests that plaintiffs’ need for the
testimony wins out here. However, plaintiffs have no reason to depose the director
with respect to their facial challenges. We therefore sustain the State’s assignment of
error to the extent the trial court’s order permitted plaintiffs to depose the director
regarding their facial challenges, and we overrule it in all other respects.
{¶69} Accordingly, we modify the last paragraph of the trial court’s September
17, 2025 “Entry Ordering Defendant Bruce Vanderhoff to Appear for a Deposition” to
read as follows (with our additions in italics):
The Court, having considered Plaintiffs’ motion and arguments
from both Plaintiffs’ and Defendant’s attorneys, finds Plaintiffs’ motion
to be well taken. To the extent Plaintiffs’ Motion to Compel seeks to
depose Defendant Bruce Vanderhoff, M.D., on issues related to
Plaintiffs’ as-applied constitutional challenges, the motion is hereby
GRANTED. That same motion is DENIED, however, to the extent
Plaintiffs’ motion seeks to depose Defendant regarding any issues
related solely to Plaintiffs’ facial challenges, including but not limited
to issues regarding the State of Ohio’s interest in enacting the
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OHIO FIRST DISTRICT COURT OF APPEALS
challenged statutory provisions. Defendant Bruce Vanderhoff, M.D. is
hereby ORDERED to fully cooperate and participate in his deposition
as a party and fact witness.
So modified, we affirm.
Judgment affirmed as modified.
BOCK and NESTOR, JJ., concur.
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