Cuyahoga Cty. Bd. of Elections v. Bardwell

2025 Ohio 4669

• Court: Ohio Court of Appeals
• Decided: October 9, 2025
• Docket: 114579
• Status: Published

Opinion

[Cite as Cuyahoga Cty. Bd. of Elections v. Bardwell, 2025-Ohio-4669.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CUYAHOGA COUNTY BOARD OF : ELECTIONS, ET AL., : Plaintiffs-Appellees/ Cross-Appellants, : No. 114579 v. :

BRIAN D. BARDWELL, :

Defendant-Appellant/ : Cross-Appellee.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; VACATED IN PART RELEASED AND JOURNALIZED: October 9, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-24-996581

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mark R. Musson, Assistant Prosecuting Attorney, for appellees/cross-appellants.

Speech Law, LLC, and Brian D. Bardwell, for appellant/cross-appellee.

KATHLEEN ANN KEOUGH, J.:

Attorney Brian Bardwell appeals from the trial court’s judgment entry

dated October 25, 2024, that granted summary judgment in favor of the Cuyahoga County Board of Elections and its Director, Anthony Perlatti (collectively “the

Board”), on the Board’s complaint seeking a declaration that the Board may lawfully

dispose of public records that it retained beyond its retention period. The Board

cross-appeals from the trial court’s interlocutory judgment entry dated September

6, 2024, that granted, in part, Bardwell’s motion to dismiss the Board’s complaint

requesting a declaration that it did not prevent Bardwell from inspecting certain

public records. Based on our review of both appeals, we affirm the trial court’s

judgment granting Bardwell’s motion to dismiss but vacate the trial court’s

declaration that the Board could dispose of the records because the Board’s

complaint failed to state a valid claim for declaratory relief.

I. Factual Background and Procedural History

On February 9, 2024, Bardwell, at the request of an undisclosed

client, submitted a request to the Board to conduct an in-person inspection of all

75,091 voter ballots and other election records from the August 3, 2021 Special

Primary Election.

On February 16, 2024, the Board responded, notifying Bardwell

which documents were available for an in-person inspection: (1) paper ballots cast,

(2) paper poll tapes, and (3) configuration and audit log reports (tapes) from each

voting machine. The response further included a photograph depicting a sampling

of how the documents were stored — “in boxes weighing approximately 75 pounds

stacked on thirteen pallets measuring approximately 3.5' wide by 4' deep by 5.5'

high.” The response provided parameters necessary to proceed with the inspection because of the volume of records, the Board’s operations regarding the upcoming

primary election, and the duty to preserve and maintain the requested records. The

conditions included (1) what days and times the records were available for

inspection, (2) the maximum number of individuals permitted to conduct the

inspection at any given time, (3) advance notice of the scheduled inspection times

and the identification of the individuals who would conduct the inspection, (4) a

continuous inspection until completed, (5) assigning a Board staff member to pull

and return the boxes back to the pallet, (6) only reviewing one box at a time, and (7)

prohibiting any markings on the records or passing them through any scanning,

copying, or printing devices.

On February 19, 2024, Bardwell responded, asking whether the

Board would permit a scanner specifically designed for ballots, and if not, whether

a mobile device could be used to scan the documents. On February 21, 2024, the

Board responded by denying the use of a scanner, but permitting the use of a mobile

device to take pictures or digital images of the records.

On February 23, 2024, Bardwell responded, again expressing the

desire to use a scanner because of the inspection parameters. He stated that if the

Board would not modify the conditions, the inspection would not commence until

“May or June” and would take “at least two months” to complete.

On April 12, 2024, the Board respond to Bardwell’s February email,

advising that when the inspection commences it would be pursuant to the conditions

the Board previously set forth. The record does not reflect that the Board advised Bardwell that the retention time period had expired regarding the requested

records.

Bardwell responded on April 17, 2024, stating that under the given

parameters, the inspection would not begin for another nine months on January 15,

2025. Again, he expressed his desire to use a machine to scan the documents given

that the Board was “planning to destroy [them] anyway.” At no time during these

communications did Bardwell disclose to the Board that he was retained or hired to

pursue this records request on behalf of a client.

On April 26, 2024, nine days after Bardwell’s last email and less than

three months after Bardwell sent his initial public-records request, the Board filed a

complaint against Bardwell, seeking a declaration that (1) the Board had not

prevented Bardwell from inspecting the records, and (2) the Board had the right to

dispose of the records. According to the complaint, the applicable retention period

for the records was 22-months after the August 3, 2021 election, i.e., June 3, 2023.1

Bardwell moved to dismiss the complaint, contending (1) the trial

court lacked jurisdiction over the Board’s complaint; (2) the complaint failed to

adequately plead standing or any of the requirements for declaratory relief; and (3)

the complaint proved that the Board violated its obligations under the Ohio Public

Records Act and must therefore continue to preserve the records until it permitted

Bardwell to inspect them.

1 The Board’s complaint alleged that the Board received a prior request for these

election records during the applicable retention period, thus preventing the Board from disposing the records. In July 2024, Bardwell also filed an answer, raising various defenses

and a counterclaim for (1) prohibiting inspection of election records, in violation of

R.C. 3599.161, and (2) frivolous conduct in filing civil claims, in violation of R.C.

2323.51. He sought both injunctive relief and money damages. Bardwell’s first

claim for relief centers around his allegations that on June 24-25, 2024, and July 9,

2024, he personally appeared at the Board of Elections office to inspect specific

ballots cast in the August 3, 2021 primary election but was prevented and prohibited

from inspecting the requested records. Bardwell’s second claim involved whether

he was the proper party to the lawsuit because he alleged that the Board knew that

he made the records request on behalf of a client.

The trial court granted Bardwell’s motion to dismiss, in part, finding

that it lacked subject-matter jurisdiction over the Board’s request for a declaration

that it did not prevent Bardwell from inspecting the records. The court concluded

that the Board’s complaint sought a declaration that it had not violated R.C. 149.43,

which pursuant to R.C. 2743.75(A), would fall under the exclusive jurisdiction of the

Court of Claims. Regarding the Board’s second requested declaration, seeking

permission to dispose of the requested records, the court found that it had

jurisdiction over this requested relief, despite the Board not being an “aggrieved

person” to bring an action under R.C. 149.351(B). The trial court did not address

Bardwell’s additional claim that the complaint failed to adequately plead standing

or any of the requirements for declaratory relief. Accordingly, the Board’s second

request for declaratory relief survived dismissal. Subsequently, the Board moved for summary judgment on its

remaining request as to whether it could dispose of the election records and on

Bardwell’s counterclaims. In Bardwell’s opposition, he again challenged the court’s

jurisdiction and the Board’s ability to seek declaratory relief, and also raised the

issue of whether he was an appropriate party to the action because his clients were

the interested party.

The trial court granted the Board’s motion, entering judgment on the

Board’s remaining claim for relief and on Bardwell’s counterclaim. The court noted

that Bardwell did not challenge the merits of the Board’s second declaration but only

continued to advance the arguments regarding the deficiencies in the Board’s

complaint to maintain the action and that he was not a proper party to the lawsuit.

After reviewing the applicable law and retention schedules, the court declared that

the Board had “the right to dispose of the Records under R.C. 149.351 based upon

the retention policy established by R.C. 3505.31 and rules adopted by the Records

Commission.” The court did not discuss or make any findings regarding the Board’s

specific interactions with Bardwell, or whether the Board made the records available

for the purpose of Bardwell’s inspection.

Regarding Bardwell’s counterclaims, the court determined that

Bardwell’s actions of inundating the Board with requests and personal appearances

at the Board of Elections after the lawsuit was filed were inconsistent with his

assertion that he was not the proper party to the Board’s lawsuit. Moreover, because

Bardwell challenged the Board’s purported denial of access to other requested records, the court concluded that his counterclaim fell under R.C. 149.43, which

required Bardwell to either bring his claim through the exclusive jurisdiction of the

Court of Claims or through a mandamus action. Accordingly, the court dismissed

Bardwell’s claim for relief because it lacked subject-matter jurisdiction — much like

when the court dismissed the Board’s first request for declaratory relief.

The court further found that the Board was entitled to summary

judgment on Bardwell’s claim for frivolous conduct because the Board reasonably

named Bardwell as a party based on the information Bardwell provided when he

initially submitted his request for records and throughout their entire

communication. Moreover, the court determined that the Board’s request for

declaratory judgment did not seek a monetary judgment against Bardwell, and thus

the court found no malicious intent by the Board.

These appeals followed.

II. The Appeal and Cross-Appeal

Bardwell appeals, raising the following five assignments of error:

1. The trial court committed reversible error when it exceeded its jurisdiction by granting a declaratory judgment that resolved an alleged violation of [R.C.] 149.43.

2. The trial court committed reversible error when it granted Plaintiffs declaratory judgment against Attorney Bardwell, even though they lacked standing to bring any claim against him.

3. The trial court committed reversible error when it granted Plaintiffs declaratory judgment permitting them to destroy public records, despite genuine issues of material facts as to whether they had fulfilled their obligations to make the records available to those who have requested to inspect or copy them. 4. The trial court committed reversible error when it dismissed Counterclaim 1 for lack of subject-matter jurisdiction.

5. The trial court committed reversible error when it granted Plaintiffs summary judgment on Counterclaim 2 without a hearing, despite genuine issues of material fact as to whether Plaintiffs knew they were suing the wrong party.

The Board filed a cross-appeal, asserting as its sole cross-assignment

of error that if the trial court erred in finding it lacked jurisdiction over Bardwell’s

first cause of action in his counterclaim, then the trial court had jurisdiction to

declare that the Board did not prevent Bardwell from conducting his inspection. The

Board clarified at oral argument that its cross-appeal was conditional; if Bardwell

was successful in his fourth assignment of error, then the trial court should not have

dismissed the Board’s first request in its complaint. A court may rely on a party’s

representations at oral argument in deciding the party’s case. Total Renal Care, Inc.

v. Harris, 2024-Ohio-5685, ¶ 10, citing Cincinnati Fed. S. & L. Co. v. McClain, 2022-

Ohio-725, ¶ 37.

Based on our review of the relevant laws, we find merit to Bardwell’s

first and second assignments of error, both challenging whether the Board’s

declaratory-judgment complaint should have been dismissed.

Bardwell moved to dismiss the Board’s complaint pursuant to Civ.R.

12(B)(6), contending that the trial court lacked jurisdiction because the Board’s

complaint sought a declaration that it had not violated R.C. 149.43, which pursuant

to R.C. 2743.75(A), could only be pursued through a mandamus action or in the

Court of Claims. Bardwell also moved to dismiss the Board’s complaint, arguing the Board lacked standing to obtain declaratory relief and that the Board failed to state

a claim because no real justiciable controversy existed between the parties.

The trial court granted Bardwell’s motion to dismiss the Board’s first

declaration request, finding that the Board’s complaint sought a declaration that it

had not violated R.C. 149.43, which pursuant to R.C. 2743.75(A), would fall under

the exclusive jurisdiction of the Court of Claims. Accordingly, this court limits its

discussion to whether the Board had standing to obtain declaratory relief or failed

to state a valid claim for declaratory relief.

It is well established that before an Ohio court can consider the merits

of a legal claim, the entity seeking relief must establish standing to sue. Ohio Pyro,

Inc. v. Ohio Dept. of Commerce, 2007-Ohio-5024, ¶ 27. Under common-law

principles, standing requires the entity to demonstrate that it has suffered (1) an

injury, (2) that is fairly traceable to the defendant’s allegedly unlawful conduct, and

(3) is likely to be redressed by the requested relief. ProgressOhio.org, Inc. v.

JobsOhio, 2014-Ohio-2382, ¶ 7.

In addition to standing authorized by common law, standing may also

be conferred by statute. Middletown v. Ferguson, 25 Ohio St.3d 71, 75 (1986). To

that end, the Board asserts that it has standing under R.C. 2721.03, a portion of the

Declaratory Judgment Act, which applies to

any person whose rights, status, or other legal relations are affected by a constitutional provision, statute [or] rule . . . may have determined any question of construction or validity arising under the . . . constitutional provision, statute [or] rule . . . and obtain a declaration of rights, status, or other legal relations under it. The three prerequisites to declaratory relief include “(1) a real controversy between

the parties, (2) justiciability, and (3) the necessity of speedy relief to preserve the

parties’ rights.” ProgressOhio.org, Inc., 2014-Ohio-2382, at ¶ 19.

Standing does not turn on the merits of the plaintiff’s claims but

rather on whether the plaintiff has alleged such a personal stake in the outcome of

the controversy that it is entitled to have a court hear the case. ProgressOhio.org,

Inc., 2014-Ohio-2382, ¶ 7. Moreover, standing “is not dispensed in gross”; it must

be demonstrated for each claim and each form of relief. (Cleaned up.) Ohioans for

Concealed Carry, Inc. v. Columbus, 2020-Ohio-6724, ¶ 13.

Even if this court found that the Board had standing to bring this

action, the Board’s complaint for declaratory judgment fails to state a claim because

no real justiciable controversy remained between the parties following the trial

court’s decision to dismiss the Board’s first request for lack of jurisdiction.

Accordingly, the court erred in denying Bardwell’s motion to dismiss in total.

The Board’s remaining demand requested “a declaration that the

[Board] has the right to dispose of the Records.” This request did not involve any

controversy between the parties, let alone a justiciable controversy. Finding

otherwise would necessarily involve whether the Board complied with R.C. 149.43

— an issue that the trial court concluded was outside of its jurisdiction.

When the court dismissed the Board’s first request for relief, the only

claim remaining was a request to declare that the Board complied with its retention

policy and sought permission to dispose of the records; it did not involve whether it complied with Bardwell’s request or whether the Board made the records available

for inspection. In fact, the trial court’s subsequent decision did not involve any facts

about the requests except that the records responsive to Bardwell’s request were

contained in the relevant retention schedules. Because the court found that

Bardwell did not contest the merits, the court concluded that “the only fact at issue

is whether June of 2023 is 22 months after August of 21. It is.”2

In its reply to summary judgment, the Board refuted Bardwell’s

contention that the request to dispose of the records necessarily required a finding

of compliance by the Board regarding the requested records. It stated, “[The

Board’s] requests for declaratory judgment are separate and independent from one

another, and not redundant or contingent on each other.” We agree that the two

requests are completely unrelated in theory, but when the trial court dismissed the

Board’s first request for relief for lack of jurisdiction, it severed the justiciable

controversy between the parties. In fact, the Board noted that its request regarding

2 This court renders no opinion on whether a public agency can utilize a declaratory-judgment action to determine whether it has complied with its public-records retention policy when seeking to dispose of public records. R.C. 149.351(A) provides that

[a]ll records are the property of the public office concerned and shall not be removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules adopted by the records commissions provided for under sections 149.38 to 149.42 of the Revised Code or under the records programs established by the boards of trustees of state-supported institutions of higher education under section 149.33 of the Revised Code.

Moreover, this court renders no opinion regarding whether the Board, pursuant to its retention policies, can dispose of the requested records. disposal under R.C. 149.351(A) was to “foreclose[] against liability for monetary

forfeiture and attorney fees prescribed under R.C. 149.351(B).” To that end, the

Board admittedly requested relief to prevent future potential exposure to liability

under R.C. 149.43(C)(1). “Courts only have the power to resolve present disputes

and controversies, but do not have the authority to issue advisory opinions to

prevent future disputes.” Kuhar v. Medina Cty. Bd. of Elections, 2006-Ohio-5427,

¶ 14 (9th Dist.).

Based on the foregoing, the trial court erred in failing to dismiss the

Board’s complaint in total because no justiciable controversy remained following the

trial court’s dismissal of the Board’s first declaration for lack of subject-matter

jurisdiction. Bardwell’s first and second assignments of error are sustained. His

remaining assignments of error and the Board’s conditional cross-assignment of

error are hereby rendered moot. See App.R. 12(A)(1)(c).

III. Conclusion

We agree with the trial court that the Board’s novel approach is

understandable based on the volume and nature of records requested, the conduct

displayed by the requesting party, and the need to adhere to its retention policy

while recognizing its storage capacity for future records. In fact, at the time of oral

argument, it was presented that despite neither party requesting a stay of the trial

court’s order, the Board did not dispose of the requested records and Bardwell had

not initiated his inspection of those records identified in his February 9, 2023

request. And this court can appreciate the Board wanting to circumvent these

types of requests and delay tactics that could require retention of records in

perpetuity. But rather than waiting for Bardwell to file an action pursuant to R.C.

2743.75 alleging a violation of R.C. 149.43 and then asserting the Board’s claims as

defenses, the Board preemptively sought declaratory relief against Bardwell that it

complied with the Ohio Public Records Act and its retention policies. In essence,

the Board’s filing chose the forum and manner for Bardwell in pursuing any claim

challenging a violation of R.C. 149.43. See R.C. 149.43(C)(1)(a) and (b) (permits the

aggrieved party to choose between pursuing an action in the Court of Claims or a

mandamus action in either the court of common pleas, court of appeals, or Supreme

Court); see also R.C. 2743.75(A).3

During oral argument, the Board stated that it hoped to receive a

judicial determination finding its protocol for inspections is reasonable so that it can

use that determination against anyone seeking inspection of records. The Board

further stated that it requested judicial intervention, needing the help of the courts

to advise the Board of their duties and rights and how to proceed in these

circumstances. Based on these representations, it appears that the Board is seeking

3 Bardwell cites to case law from North Carolina and California both finding that

their respective Public Records Acts do not allow for a government entity to bring a declaratory-judgment action against the requesting party. McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C.App. 459 (2004); Filarsky v. Superior Court, 28 Cal.4th 419 (2002). an advisory opinion from this court.4 A court will not indulge in advisory opinions.

Egan v. Natl. Distillers & Chem. Corp., 25 Ohio St.3d 176 (1986), syllabus.

Judgment affirmed in part; vacated in part.

It is ordered that the appellant recover from the appellee the costs herein

taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, P.J., and DEENA R. CALABRESE, J., CONCUR

4During argument, the court questioned the Board whether the guidance it sought

would be more appropriate through an Attorney General opinion. “[T]he Ohio Attorney General provides written opinions on legal questions at the request of designated public officials on issues arising in the course of their duties.” Ohio Attorney General, Formal Opinions, https://www.ohioattorneygeneral.gov/About-AG/Service-Divisions/Opinions (accessed Sept. 8, 2025) [https://perma.cc/LD5L-8UD8].